Police v Manuel [2012] CKHC 28; CR297-298.2012 (29 August 2012)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CR no's 297-298/12 &
320-323/12

POLICE

v

JAPHET IOTEVA MANUEL

Hearing: 29 August 2012
Counsel: Ms C King for the Crown
Ms L Rokoika for the Defendant

Sentence: 29 August 2012

SENTENCING NOTES OF WESTON CJ

[1] Mr Manuel, you are here today for sentence having pleaded guilty to six charges which arise out of four different incidents which occurred in March of this year. The most serious of those charges is that of indecent assault under s 148 of the Act and for that offence you can be sent to prison for a maximum of 7 years.

[2] There is also another similar type of offending which has been charged under a different section of the Act, s 214, that is assault on a female. That carries a maximum term of two years imprisonment. That is also a very serious offence but in terms of how you have been charged I will treat the indecent assault charge under s 148 of the Act as the lead charge.

[3] You are already in prison having been sentenced earlier this year first by JPs and then Justice Williams in relation to an earlier indecent assault. I understand that the two separate sentencings arose from a single incident, that is, the JPs who sentenced you to a term of 6 months imprisonment were dealing with the entering with intent and the Judge in sentencing you was dealing with indecent assault and he sentenced you to 12 months imprisonment. The result of the process of sentencing by the JPs and the Judge is that you are currently in prison through until October 2013. I have read Justice Williams sentencing remarks. In the course of those sentencing remarks he noted that in jail you were "just coping". This is a matter I have raised with Ms Rokoika and will discuss this during the course of my sentencing of you today.

[4] In addition to the sentencing earlier this year you have previously been sentenced on six separate occasions for various offences including burglary. Some of these have carried terms of imprisonment. So you have quite a record and that record has in the main been established since 2010. There was prior offending in 2004. At that time you were charged with common assault and were sentenced to come up for sentence within 6 months. So it would appear that this was regarded as a reasonably minor offence. The pattern of your offending shows that it has grown from 2010 up to the events of March of this year for which I will be sentencing you today.

[5] I have read the various materials on file and listened to submissions from counsel as to the offending undertaken by you. The first of the four incidents that I am dealing with today occurred on 14 March 2012 when you walked up to someone's accommodation. You entered it without invitation. You asked the complainant if you could touch her and perform oral sex on her. She demanded you leave and you did so. For that you have been charged with being unlawfully found on the premises.

[6] The next day, on 15 March, you committed the offences which have been described as the most serious here. In relation to this incident you have been charged both with indecent assault and entering with intent.

[7] The facts are that at 3 o'clock in the morning on 15 March you walked into the victim's home at Titikaveka. She was seven months pregnant, asleep in bed by herself with her partner sleeping in the next room. You entered her bedroom, you performed oral sex on her while she was still asleep. She woke up, discovered what was going on. You then physically touched her private parts and eventually when she started screaming you left.

[8] The third incident that I am dealing with also took place on 15 March at about 4.30 a.m. the same morning. You tried to get into someone's house and fortunately you were not able to do so, and when they yelled at you to leave, you did.

[9] The fourth incident occurred on the 17th March when you walked along the beach. This was about 4 o'clock in the morning. You went into some tourist accommodation where a tourist couple were sleeping. They were on their honeymoon, first time they have travelled out of New Zealand. You touched the woman on her inner thigh. She screamed when she discovered what was going on and you ran away. It seems that had that not occurred you might well have committed further acts upon her.

[10] In relation to that last incident you are charged both with assault on a female and with entering with intent. I have mentioned to the Crown that I believe you have been undercharged in relation to assault on a female. Somewhat ironically the partner charge, that is entering with intent, carries a maximum of 5 years compared with the 2 year maximum for assault upon a female.

[11] I have raised with the Crown whether there is duplicity between charging someone with both indecent assault and entering with intent, when the question of the home invasion is to be regarded as an aggravating event for the indecent assault. The Crown submits there is no duplicity. However, I can see that there can be scope for that and I need to bear that mind in performing my sentencing duties today.

[12] I have read the victim impact reports for the two women that were assaulted by you. For the avoidance of any doubt I make any suppression orders that may be necessary to protect the name or identity of these complainants.

[13] The first of the complainants, that is the woman I have described as the pregnant woman, has said how badly she and her husband have been upset by what you did. They have talked about how they do not feel comfortable in their home, they feel they have been spied on and indeed that is plainly one of the aggravating features of this offending that you were spying on this woman during the course of the day before the assault took place.

[14] The second woman, the tourist from New Zealand, spoke about the attack occurring during their honeymoon. She described it as a terrifying experience that has had a profound impact on both of her and her husband. She now has difficulty sleeping, nightmares, anxiety, fearfulness. The report is truly a dismal one and you should be profoundly ashamed for what you have done to both of these two women.

[15] The Crown has provided detailed submissions describing the various offences and drawing my attention to a number of New Zealand decisions relevant to the sentencing exercise today. Part of the difficulty facing me is that in the Cook Islands there is no Sentencing Act and some of the offences which were dealt with in these decisions carry different terms of imprisonment. Nevertheless, and with respect, I found it helpful to read these cases including a decision from the New Zealand Court of Appeal in R v Cooper from 2005. In that decision the Court noted there are no firmly established sentencing ranges for the crime of indecent assault because the circumstances can vary so greatly. And this case and others note that it is not generally helpful to compare the facts in one case with the sentencing imposed because there is such a range of possible outcomes.

[16] In the case of R v Cooper the sentence of 3 and half years for the offending there was thought to be at the high end but appropriate.

[17] I have also looked at the earlier decision of R v Sipa which was an indecent assault case and the discussion in that decision in paragraph 23 is, with respect, helpful. That case involved touching the leg of the complainant which was said to be at the lower end of the scale. Nevertheless the Court noted that she was asleep and, apart from the fact of her awakening, the offending might well have proceeded further, and that seems to be directly relevant to the charge of assault on a female for the which the maximum term is 2 years. In that case, the Court thought that offending of this sort would justify a term of imprisonment of 18 months with an uplift of a further period given the home invasion.

[18] I have read the sentencing notes of Justice Williams in this Court in June of the year in relation to Tangaroa. In that case for an indecent assault and other offending the prisoner received 1 month imprisonment. That seems to me very low but the circumstances in that case are quite different to the ones facing me here today.

[19] The Crown has also referred to me a decision from the High Court of New Zealand from 2009 R v Chrisp. The offending in that case was very high and in some respects is analogous to the offending for which you have been charged. Much of the decision in that case concerned preventative attention which is not a matter that I can address but the Court concluded that a very lengthy period of sentence was appropriate in that case.

[20] Ms Rokoika has appeared for you today and made submissions on your behalf. They were helpful. She has drawn particular attention to the mental health issues which seem to be underlying your offending. There seems to be some doubt as to whether you fully understand what you are doing and the affect that you have on people. The fact that you have on a number of occasions undertaken this offending suggests there is a mental health issue that lies behind it. I am told that there is no basis to invoke the provisions of the Cook Islands Act to have you effectively committed and sent to New Zealand for treatment. I am also told by the Crown that there is no recognised program or treatment that can be made available to you in prison. Although I recognise that the question of treatment is a matter for others than me, as the judge sentencing you I need to be alert to the reality of your offending. There does need to be treatment made available for persons like you that plainly have some mental health issues but are otherwise fit to plead. I will direct as a term of my sentence that you should receive medical treatment as deemed appropriate and I will reserve leave to your counsel Ms Rokoika to return to me directly if she forms the view that that has not been carried out.

[21] I now come to the lead charge of indecent assault and deal with the sentence on that.

[22] It seems to me that the appropriate starting point taking into account the aggravation of the home invasion is a period of imprisonment of somewhere between 4 and 5 years. I need to take account of your guilty plea and the discount that is agreed that you should receive for your early guilty plea is a third of what would otherwise be your period of offending.

[23] Before I fix a figure for your imprisonment on this charge I also need to deal with the question of the totality of your offending. I have yet to come to the other charges for which I will sentence you but plainly the totality of the offending here is very significant. One way of addressing the totality of your offending is to consider that you are still in prison and will be there until October 2013. I have raised with counsel for the Crown and the Defence whether I should sentence you from today or from the period that your sentence ends in October 2013. Both have submitted that I should take the sentence from today. That means that any sentence today would overlap with your existing sentence for a period of some one and a third years. In sentencing you on the current charges I need to bear that in mind.

[24] So taking into account the matters I have already said, I believe that the appropriate sentence today, and it will run from today, is the term of 3 ½ years imprisonment. This will be subject to an order that the Ministry should take all reasonable steps to provide you with appropriate mental health assistance. I do not seek to say what that should comprise because that is a matter for the relevant experts to determine.

[25] I reserve to Ms Rokoika leave to return this matter to me at any stage that she believes that that obligation has not been carried through. I recognise that that is an unusual order but the circumstances of this case mean that I believe strongly that such an order is appropriate.

[26] Sentencing as I have has been primarily to reflect the seriousness of the charges and the need to protect the community. Equally I have to be alive to the fact that when your sentence is finished you will be released and with your current pattern of conduct you can be relied on, it seems, to continue to offend in the future. So your treatment needs to be directed at trying to stop that.

[27] I now turn to the other charges. In relation to the related charge of entering with intent I sentence you to the term of 18 months imprisonment to be served concurrently with the 3 ½ year term I have just mentioned. So those two charges relate to the indecent assault that occurred on 15 March.

[28] I now turn to the incident which occurred on 14 March, that is the day before, when you walked into someone's house and asked if you could have oral sex with her. You have been charged with being unlawfully found on that occasion which carries a maximum of 3 months imprisonment. Again I have reservations as to whether this was the appropriate charge. However, that is the charge to which you have pleaded guilty and carries a maximum term of 3 months imprisonment. I sentence you to the maximum term to be served concurrently with the other sentences.

[29] I now come to the third incident which occurred on the 15 March. This is when you tried to get into someone's unit and you have been charged with attempted burglary in relation to that. While that carries a maximum term of 5 years it seems to me it is roughly comparable with the unlawfully found charge I have just mentioned, and I sentence you to 3 months on that to be served concurrently.

[30] Finally I come to the final incident on 17 March. That was where you were charged with assault on a female and entering with intent. As will be clear from what I have already said, I regard this as a very serious offence. Out of those two charges I take the entering with intent as the lead charge. This carries a maximum term of 5 years. In relation to that I sentence you to a term of imprisonment of 2 years from today to be served concurrently. In relation to the assault on the female which is related to that I sentence you to a term of 1 ½ years to be served concurrently.

[31] The sentencing of you Mr Manuel means that from today the total term is 3 ½ years. So that overlaps with your existing sentence and then you will continue in prison beyond that point until your sentence has been served.

[32] The intention is that you should also receive mental health assistance during that period and Ms Rokoika will act as the conscience of the Court for that process to occur.

_______________________
Tom Weston
Chief Justice