NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html	
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2018-092-4624
[2019] NZHC 2799	

THE QUEEN	

v	

ARMISTACE POTENE HAYDEN TAMAHOU	

Hearing:	31 October 2019	
Counsel:	L Radich for Crown
L Taimalelagi and M Allen for Defendant	
Sentence:	31 October 2019	

[REDACTED] SENTENCING NOTES OF WHATA J

Solicitors:	Kayes Fletcher Walker, Manukau
Public Defence Service, Manukau

R v TAMAHOU [2019] NZHC 2799 [31 October 2019]

[1]	Mr Tamahou, you pleaded guilty following a sentencing indication in respect of two charges of burglary, one charge of indecent assault and one charge of assault with intent to commit sexual violation.

[2]	In my sentencing indication I indicated a nominal sentence of four years and eight months’ imprisonment without regard to personal mitigating factors. I reserved my position on whether I should impose an MPI or preventative detention.

[3]	I turn then to your sentence. It will be in five parts. First, I will set out the facts of your offending. Second, I will describe your personal circumstances.  Third, I will summarise the victim’s statement. Fourth I will set out my assessment of your final sentence. Finally, I will impose the sentence.

Facts

[4]	You pleaded guilty to the following summary of facts. There are two episodes of offending, the first in March and the second in April 2018. Dealing with the March 2018 offending; at around 2.00 am on 19 March 2018, you went to the complainant’s address. You were not wearing anything at the time and you were barefoot. Your movements activated a security light and at about the same time the occupant of the house heard a noise near the front door. The occupant looked out the window and saw you with both your hands around your face and up against the window, while you looked into the address.

[5]	The April offending was as follows. Between 5.00 and 6.00 am on 28 April 2018, you entered the victim’s address through a secured back door and approached the victim who was asleep on her stomach in the lounge. You grabbed and squeezed the victim’s bottom and tugged on the victim’s pants, in an attempt to pull them down. The victim woke up to find you squeezing her bottom and tugging her pants. You then then stood over her, pinned her arms down and placed your hand over her mouth. Using your other hand, you reached down and started playing with the victim’s vagina from the outside of her pants and tried to penetrate her vagina with your fingers through her pants. You were unable to penetrate her vagina as her pants prevented you from doing so. You were eventually chased from the house by the victim’s brother.

Personal History

[6]	I turn then to your personal circumstances. I have the benefit of a PAC report, a s 27 report and psychiatrist reports by Dr Karayiannis and Dr Jacques. They individually and collectively highlight several important matters.

[7]	You are a 43-year-old male with multiple prior convictions, including for similar offending to the present. You have had two long term relationships and have two sons aged 12 and 8.

[8]	You are from Tuhoe. You are the potiki, or youngest, of nine brothers and eight sisters. Your upbringing was traumatic. Your whānau was closely associated with gangs, including the Mongrel Mob and the Black Power. Drugs, alcohol and violence were everyday occurrences in your home. You recall your mother being beaten by your father. You also self-report being physically abused by your older siblings [suppressed].

[9]	As you entered your teenage years, you started associating with gangs and at the age of 17 you moved to Tauranga at the invitation of a friend who was a member of the Black Power. You were soon immersed in gang life, becoming a prospect and proving yourself by, among other things, criminal activity, including robbery when you were around 18-20. You served three and half years of a five-year sentence for this crime. Through these years you forged a stronger identity for yourself with the Black Power and when you were released you returned to the gang.

[10]	Drug and alcohol abuse are another feature of your life. You recall using cannabis from about seven years of age and from about ten years old you were a regular user. As a teenager you dabbled with other drugs. You later became a methamphetamine user to the point where you would start shaking and shivering if you did not receive a constant supply.

[11]	You still strongly identify as Tūhoe. You recall a time in your life, when your family first returned to your tribal rohe, where you knew only of a tight knit kinship grouping that revolved around traditional Tūhoe notions of tikanga, mahi kai and whānau. You remember being taught the history of Tūhoe at school. Your father was

also staunchly Tūhoe. However, this positive exposure and connection to Tūhoetanga was skewed by your broader life experiences of physical and sexual violence, exposure to and then joining gangs, and drug use. You have also lost your connection to your whānau and you remain disconnected from them. You grieve that loss.

[12]	Your s 27 report refers to a wider dynamic at play, namely the intergenerational tension between Tūhoe and the Crown, and the prevailing sense that the Crown is the enemy. This, the report says, may have contributed to your antisocial attitude and your gravitation towards the gangs. The ongoing cycle of crime and incarceration reinforced the importance of gangs to you. The report also suggests that access to your Tūhoetanga is key to breaking this cycle and to your rehabilitation.

[13]	Dr Karayiannis also observed evidence of antisocial personality traits, including deceit and dishonesty, irritability, impulsivity, substance abuse, and a history of rule breaking and law violation. He found that you meet the criteria for Polysubstance Abuse Disorder, including methamphetamine. He suggested that you attributed some of your offending to others and did not seem to understand the seriousness of your sexual offending. A similar minimising attitude to your offending was observed by the PAC report writer.

[14]	Dr Karayiannis found that you scored in the moderate category for risk of future sexual offending, but your dangerousness was regarded as moderate to high. Dr Karayiannis also found that in the absence of risk modification, you would be in a group that would be at a moderate to high risk of violent reoffending. He said you would be in the moderate to high risk category compared to other adult offenders being charged of another sexual offence. He said, however, that your risk modifying, or protective factors are potentially subject to rehabilitative interventions.

[15]	Overall, Dr Karayiannis recommends that you should be assessed by the Department of Corrections’ psychological services to determine your eligibility for appropriate treatment. He suggests you would benefit from further violence prevention treatment, alcohol and drug treatment, and sex offending treatment. He further notes that it is of concern that you do not currently acknowledge any sexual deviancy, and minimise, externalise and deny aspects of your offending. He suggests

an indeterminate sentence might help to ensure treatment gains and risk reduction occurs prior to your next release.

[16]	Dr Jacques assessed you as at high risk of similar sexual reoffending without psychological interventions. He also recommended you undergo psychosexual assessment by Corrections’ Psychology with a view to commence a sex offender treatment programme. In terms of preventive detention, he notes that although your risk of reoffending is high without specialised sex offender treatment, you appear to have accepted responsibility, were not in denial or strongly minimising your behaviour, and were co-operative and willing to engage in treatment. He also said that you became distressed when talking about your past and that this may be a challenging barrier.

Victim Impact Statement

[17]	I turn then to the victim impact statement. She refers to being violated in the worst way, referring to the abuse of her personal space, home and privacy. She is anxious, has trouble sleeping and is fearful. The emotional harm was huge. She continues to have flashbacks and suffers panic attacks. She said she agreed to restorative justice, but you declined. She has attended counselling, which has helped, but what happened is still painful and raw for her. Her everyday existence has been affected. For example, she had to replace her furniture because it reminded her of what had happened.

Starting point

[18]	Turning then to my assessment of your sentence. The Crown submitted at your sentencing indication that while the charge of assault with intent to commit sexual violation is the lead offence, a global starting point of six years was appropriate, together with an uplift of two months on the March 2018 burglary and a further uplift of 12-18 months for the prior offending. The Crown accepted a 25 per cent discount for guilty plea was available, but that a 50 per cent minimum period of imprisonment, or MPI, should be imposed. In fact, Crown counsel suggested that it might be a preferable option, rather than a substantial uplift in relation to the prior offending.

[19]	Mr Tamahou’s counsel submitted that a starting point of four years for the sexual offending, together with an uplift of 18 months for the burglary, was appropriate. A 12-month uplift for prior offending was also considered to be appropriate with the benefit of the Crown’s submissions. An MPI was also considered an option.

[20]	As indicated, I considered that a nominal sentence prior to discounts for personal circumstances of four years eight months was appropriate. This comprised a global starting point of five years six months, including four years for the sexual offending and 18 months for the burglary. No adjustment was made for the March offending. I added to this an uplift for prior similar offending of nine months. This culminated in a cumulative start point of 75 months or six years three months. I discounted this by 25 per cent for your guilty plea, resulting in the nominal sentence of 56 months or four years eight months.

Personal discounts

[21]	I now examine whether you should receive a discount for personal circumstances. Ms Taimalelagi submits that your offending can be causatively linked to your traumatic upbringing, including physical and sexual abuse, and to your drug and alcohol addictions. She also refers to the steps you have taken while in custody to rehabilitate, including taking on employment as a kitchen hand, completing a “Meth and Me” programme with Odyssey House, engaging in literacy and numeracy programmes, training to obtain a learner’s licence, attending weekly church service and completing two sessions of Critical Thinking programmes put on by the Howard League for Penal Reform. She acknowledges that, unfortunately, you do not have supportive whānau to help you rehabilitate. However, she says, referring to Heta, that you should still receive a discount in the order of 20-30 per cent to reflect your reduced culpability and remorse.1

[22]	Mr Radich, for the Crown, acknowledges that some discount is available. He identified an issue with the cultural report as it was produced by a lawyer. He expressed concerns that it contains advocacy on your behalf. Having said that,

1	Solicitor General v Heta [2018] NZHC 2453.

Mr Radich considered a 15 per cent discount would be appropriate and meaningful in the circumstances.

Assessment

[23]	In my view, there are four potentially mitigating factors: addiction, childhood deprivation, capacity to rehabilitate and remorse. Dealing first with the addiction, the Court of Appeal in Zhang stated that the presence of addiction may give rise to a discount of up to 30 per cent depending on the extent to which it mitigates moral culpability.2 The onus of proving the extent and effect of the addiction, like all allegedly mitigating factors, lies with the offender. In my view, unlike Heta, there is insufficient evidence to demonstrate that your addiction was causative of the offending. So, there can be no separate discount for that factor, though your drug addiction is relevant insofar as it is indicative of the presence of the other potentially mitigating factors.

[24]	The Court of Appeal in Zhang also affirmed that ingrained, systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case, insofar as they relate to impaired choice and diminished culpability.3 Similarly, social, economic and cultural deprivation that has a demonstrative nexus with the offending may be presented in mitigation. In this regard, I am satisfied that there is a demonstrative nexus between systemic and social deprivation and your offending. Your traumatic upbringing provided the seeds for your offending, including your illiteracy, your addiction to drugs, your gravitation to gangs (like your father, which reveals the systemic nature of your deprivation), your propensity to violence and sexual offending and your apparent lack of insight. There should be a discount to account for the effects of this deprivation because it bears on your relative moral culpability.

[25]	Your capacity to rehabilitate is, however, affected by your background. You need a therapeutic response specifically directed to those adverse background factors that I have mentioned, which it appears you have not yet received. Unfortunately, you

2	Zhang v R [2019] NZCA 507 at [149].
3	At [159]

are disconnected from your whānau, so that support is not there for you. This reduces the confidence I might otherwise have had in your rehabilitation. But, as your counsel has highlighted, you have taken steps to address your addiction and to demonstrate a pro-social attitude. On balance, therefore, there is reason for optimism.

[26]	I turn then to examine whether you should receive a separate additional discount for remorse. At first, I was not minded to grant you a discount for remorse. The observations made in Dr Karayiannis’ and in the PAC report tends to suggest a lack of genuine insight into the seriousness of your offending. However, Dr Jacques suggests otherwise. Further, I also note that you made genuine attempts at restorative justice but it did not eventuate. You have also provided me with a letter which openly expresses your remorse for your actions. Significantly also, Ms Taimalelagi advises that you did not have a support person present when you attended the interview with Dr Karayiannis. By contrast, she was present during the interview with Dr Jacques. I infer from this that you felt able to communicate your remorse during your interview with Dr Jacques because of her presence. I also think there has been an evolution in your ability to comprehend the severity of your actions and to deal with your whakamā about what you have done. On that basis, I am satisfied that you should receive some discount for remorse.

[27]	Returning then to a summary of discounts for you, I am satisfied that a discount of 15 per cent to account for systemic and social deprivation and to recognise your capacity  to  rehabilitate  is  appropriate.   In   this   regard,  I  wish  to  note  that    Ms Taimalelagi’s submission that you should receive a discount of 20 and up to 30 per cent, citing Heta, belies the fact that the nexus between Ms Heta’s alcoholism and the offending in that case was much closer, and that the steps she had taken towards rehabilitation and the prospects of her rehabilitation, including with the assistance of whānau, were appreciably greater. I am also mindful of the fact that the uplift for your prior offending, a clearly aggravating factor, is relatively modest. In the result, a discount of 15 per cent is sufficient to reflect the deprivation you have suffered. However, I also think you should get a further discount of 5 per cent for your remorse and your attempts at restorative justice.

[28]	Accordingly, the outcome is that, were I to impose a finite term of imprisonment, I would impose a sentence of 45 months or three years nine months imprisonment. This is comprised of the starting point of 75 months, less 15 months for your personal circumstances, to arrive at 60 months and a discount for guilty plea of 15 months, to arrive at a sentence of 45 months or, as I say, three years nine months.

[29]	I must now consider whether preventive detention or an MPI is required.

Preventive Detention

[30]	Turning first to preventive detention. Both counsel agree that because you have not yet undertaken focused rehabilitation specifically directed to the causes of your offending, preventative detention should not be imposed. I agree. I preface my reasons for this conclusion by acknowledging that you continue to present a moderate to high risk of offending and satisfy the criteria for preventive detention.4 Your conviction history discloses a pattern of serious offending (though not the most serious of its kind). Your offending has caused serious harm. There is also information indicating a tendency to commit serious offences and you have not sought out rehabilitative treatment. But it is, I think, too early to conclude that preventive detention is necessary.

[31]	While Dr Karayiannis recommends preventive detention, I prefer Dr Jacques’ assessment that with focused treatment there is a reasonable prospect of managing the risk you present. I am fortified in this view by the approach the Court of Appeal in R v Owen, wherein French J said preventive detention was not appropriate in not dissimilar circumstances “principally because of the fact that you have never received the treatment that you obviously so desperately need, and because the health assessors are optimistic about the chances of success for treatment”.5 While I have somewhat less optimism in your case, for reasons already expressed, I am satisfied that you should be given the opportunity to fully engage in rehabilitative treatment before receiving a sentence of preventive detention. I also think the availability of an

4	Sentencing Act 2002, s 87(2).
5	R v Owen [2012] NZHC 499 at [50].

extended supervision order provides a way to manage the risks presented by you, if that is necessary.6

MPI

[32]	As to MPI, it is common ground between counsel that an MPI is available. Again, I agree. I also understand that you are also accepting of an MPI and that is to your credit Mr Tamahou, as it tells me that you are taking responsibility and acknowledging what you have done. As I noted in the sentencing indication, your present offending is simply the latest chapter in a disturbing pattern of offending involving entry into homes for sexual gratification. As psychologist Sheera Hira put it in her report on the bail application, this conviction history suggests:

… a persistent pattern of sexual offending; that is sexually motivated offending behaviours have continued to occur over a long period of time (first sexual conviction in 1995). In addition, Mr Tamahou’s behaviours are somewhat diverse in nature, including sexual assaults, peeping and peering, and offences against adolescents and adults.

[33]	The April offending also represents an escalation in the scale and severity of your offending, which may be the tipping point for a stricter intervention by the Court to secure the protection of the public.

[34]	The more recent psychiatric reports also support the need for caution. All of this justifies the imposition of an MPI. I am also satisfied that the MPI should be 50 per cent. For completeness, this MPI is necessary to hold you accountable for the harm to the victim, to denounce your conduct, to deter you or others from committing the same offence and to protect the community.

Outcome

[35]	Accordingly, Mr Tamahou please stand. On the charge of assault with intent to commit sexual violation, I sentence you to a sentence of imprisonment of three years nine months, of which you must serve a minimum period of imprisonment of 50 per cent or one year eleven months.

6	See R v Parahi [2005] 3 NZLR 356 (CA) at [90].

[36]	On the charge of indecent assault, I sentence you to two years’ imprisonment to be served concurrently with the charge of assault with intent to commit sexual violation.

[37]	On the charge of burglary, I sentence you to a sentence of imprisonment of one year six months to be served concurrently with the sentence on the charge of assault with intent to commit sexual violation.

[38]	On the Police charge of burglary, I sentence you to a sentence of imprisonment of six months to be served concurrently with the sentence on the charge of assault with intent to commit sexual violation.

[39]	Before I stand you down, Mr Tamahou, I briefly want to address the concerns raised by Mr Radich about the s 27 report. Unfortunately, I have not had the time to give this full consideration. But I wish to observe that it is important that persons like you who are Maori have the opportunity to have their background presented on their behalf by someone who is Maori and innately understands their culture and their background circumstances. I do not wish to say anything more at this stage, other than to note that I did not interpret any undue advocacy in the report presented on your behalf.

[40]	Mr Tamahou, please stand down.

Addendum

[41]	I have suppressed a portion of para [8] of the sentencing notes.