R v Kalepo

[2019] NZHC 486

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-936

[2019] NZHC 486

THE QUEEN

v

DENNIS KALEPO

Hearing:	19 March 2019
Appearances:	H D L Steele for Crown L Freyer for Defendant
Judgment:	19 March 2019

SENTENCING REMARKS OF LANG J

R v KALEPO [2019] NZHC 486 [19 March 2019]

[1]                Mr Kalepo, you appear for sentence having pleaded guilty to charges of rape1 and injuring with intent to injure.2 The charge of rape carries a maximum sentence of 20 years imprisonment, whilst the other charge carries a maximum sentence of five years imprisonment.

[2]                You also face charges of threatening to kill, and robbery. Given your guilty pleas on the other two charges, the Crown has elected not to call any evidence on those charges and I now discharge you on them under s 147 of the Criminal Procedure Act 2011.

The charges

[3]                The charges to which you pleaded guilty were laid as a result of an incident that occurred in the early hours of 2 December 1998. On that date you were driving around central Auckland in your motor vehicle. You came across a sex worker on the street. You negotiated with her and she agreed to perform a sexual service for you for an agreed fee. She then got into your vehicle and you drove to a driveway in a secluded area.

[4]                At that point an argument occurred because she wished you to use a condom and you were not prepared for that to happen. Without warning, you crossed from the driver’s seat to the passenger seat. You lowered the passenger seat and then lay on top of the sex worker. She was unable to resist your advances. You pinned her down whilst you removed her underwear. You then inserted your penis on several occasions into the victim’s vagina. Ultimately, you ejaculated.

[5]                After this, the victim was able to activate a personal safety alarm. This produced a very loud noise and you became concerned. You got out of the vehicle and went round to the passenger side and opened the door. You then told the victim to turn the alarm off. When she said she could not, you became angry and punched her in the mouth. This knocked the alarm device loose, and you threw it away.

1      Crimes Act 1961, s 128(1)(a).

2      Crimes Act 1961, s 189(2).

[6]                The victim then began to walk off and you tried to take her handbag. A struggle ensued because she was not prepared to allow that to happen. This resulted in you pushing her to the ground. You pulled her hair. You also slammed her into the side of your vehicle. You then pulled her to her feet again and punched her on the jaw on a second occasion. You then got back into your vehicle and left the scene. Fortunately, the victim was able to obtain assistance from a passing motorist a short distance away.

[7]                It seems that your offending went undetected for nearly 20 years. The semen you had left inside the complainant proved to be your undoing however. Recent advances in DNA technology meant that the police were able to compare the samples they had taken from the victim with those they held on a database from you. This established a match, and you were arrested in or about early 2018.

Starting point

[8]                The sentence to be imposed on you is obviously informed in many ways by the effect it has had on the victim. I have the benefit of a measured, yet emotional, victim impact statement from your victim. It is clear that your offending had significant impacts for her and these have lasted for many years. That is not surprising given the indignities to which you subjected her.

[9]                Obviously, the sentences to be imposed in relation to crimes as serious as these need to have a deterrent factor. They also need to denounce the conduct in which you engaged and deter you and others from engaging in similar conduct in the future.

[10]            The first issue I need to decide is the starting point to be applied in relation to your offending. This is the starting point for the sentence to be imposed, taking into account the characteristics of the offending, but putting to one side any personal characteristics you might possess.

[11]            Counsel are not far away in this regard. On your behalf, Mrs Freyer submits an end starting point of no more than nine years imprisonment is appropriate. The Crown submits that a starting point of nine to nine and a half years imprisonment is the appropriate range.

[12]            I accept your offending was opportunistic in the sense that you may not have planned what you were about to do until just before it occurred. On the other hand, you chose a victim who was vulnerable by virtue of her occupation and was also vulnerable because you had taken her to a private place for your own gratification. The offending involved not only the sexual act itself, but also the violence you inflicted on the victim after the offending had taken place. All of those factors need to be weighed into the mix.

[13]            I agree that this offending falls within the bottom end of band 2 identified by the Court of Appeal in R v AM.3 That calls for a sentence of between seven to 13 years imprisonment. I select a starting point of eight and a half years imprisonment on the charge of rape.

[14]            The charge of injuring with intent to injure does not form part of the act of rape because it occurred afterwards. For that reason the starting point in relation to the rape charge needs to be adjusted to reflect the fact that after the offending you were prepared to assault the victim in several ways. Ordinarily, I consider this offending would attract a sentence of around two years imprisonment. Having regard to totality principles, however, I consider an uplift of six months is appropriate. This means I select an end starting point of nine years imprisonment without taking into account aggravating and mitigating factors personal to you.

Aggravating factors

[15]            The most obvious aggravating factor is that relating to your previous convictions. You received an effective sentence of seven years six months imprisonment for offending that occurred in 1988. In that offending, you made advances towards a female at a party in circumstances where you were intoxicated. She rejected your advances, but when she left the party in the early hours of the morning you followed her and attempted to kiss her. When she rejected your advances, you dragged her down a bank and punched her in the face numerous times breaking her jaw in two places. Over a period of time you then subjected her to a variety of sexual indecencies, including attempted sodomy and rape.

3      R v AM [2010] 2 NZLR 750 (CA).

[16]            On 19 September 1989, you received a sentence of seven and a half years imprisonment on those charges.

[17]            You also have a conviction for further sexual offending in 2005 that has similarities to the current offending. That is irrelevant for present purposes, however, because it occurred after the offending for which you are to be sentenced today.

[18]            Ordinarily, previous convictions for such serious offending in 1998 would attract an uplift even though they occurred ten years before the present offending. This would reflect the fact that you failed to learn a lesson from the sentence imposed on you in relation to the 1998 offending. It makes the present offending that much worse because you ignored the consequences of what you knew would follow.

[19]            For several reasons, however, I decline to apply an uplift in the present case. The Crown accepts that this is appropriate. First, the offending occurred approximately 20 years ago. Secondly, I have no doubt that the offending was factored into the sentence you received in 2005 when you reoffended in a sexual way on a third occasion. It would amount to double-counting to penalise you again in relation to the present offending when that has already been taken into account on another occasion. Finally, I am satisfied, as I will discuss shortly, that you have undertaken significant rehabilitative efforts since 2005. This means that you have now learned your lesson and no uplift is required to mark this factor.

[20]            I am therefore left with an end starting point of nine years imprisonment before taking into account mitigating factors personal to you.

Mitigating factors

[21]            Your counsel urges me to take into account three interconnected mitigating factors as well as your guilty pleas. These are the remorse you have expressed, the rehabilitative efforts you have undertaken since the present offending and the significant lapse of time that has occurred since the present offending.

[22]            I accept that you are genuinely remorseful. You have written a lengthy letter to the Court setting out the reasons why this offending occurred and stating your

sorrow not only for the position in which you now find yourself, but for the harm you have inflicted on your victim. You have also sought to undertake a restorative justice process with the victim, but understandably, she has declined to be involved in that. No doubt any revisiting of this offending by her would only bring back terrible memories. Nevertheless, I am satisfied that you are genuinely remorseful for your actions and I propose to allow a discount of six months to reflect that factor.

[23]            The Court may also apply a discount to reflect efforts made by an offending to rehabilitate him or herself. In addition, the passage of time since offending may also be a factor that justifies a discount.4 Sometimes a lapse of time will mean nothing. On other occasions, however, the offender has used the intervening period to better himself or herself and to take steps to ensure that similar offending does not occur in the future. I am satisfied that this has occurred in your case. You received treatment for your alcohol issues which is the principal factor underpinning your sexual offending. You did that as a result of the sentence of three years imprisonment you received for the offending in 2005. You have not offended in a sexual way since the 2005 offending. You have not offended in any way at all since 2011.

[24]            In those circumstances I consider both the passage of time and the rehabilitative efforts you have undertaken combine to justify a discount of ten months imprisonment.

[25]            I therefore reduce the sentence to be imposed on you by one year four months to reflect the mitigating factors other than guilty pleas.

[26]            Your guilty pleas were not entered at the earliest opportunity. You entered them in October 2018 after initially being charged in early 2018. In addition, you resisted the Crown’s application in August 2018 to adduce propensity evidence at your trial. You also initially resisted an attempt by the Crown to obtain a suspect compulsion order so that DNA results from the samples taken from the victim would be admissible at your trial. Ultimately, however, you consented to those orders. The DNA results became available in August 2018.

4      R v Carruthers CA401/94, 10 April 1995.

[27]            Mrs Freyer tells me today that you have no recollection of the present offending and this is borne out in all of the reports I have seen. This was due no doubt to excessive alcohol consumption on the evening in question. For that reason Mrs Freyer submits you had justification for waiting until confirmation of the DNA testing before entering your guilty pleas. You indicated shortly after the results of the DNA testing were available that you would enter guilty pleas and then you entered them in October 2018.

[28]            The Crown submits that the fact that some ten months elapsed before you entered your guilty pleas means a discount of just 15 per cent is available. Mrs Freyer urges me to apply a discount of 25 per cent, being the maximum available for a plea of guilty.

[29]            I take several factors into account when setting the discount for guilty pleas. First, the victim acknowledges the relief she feels at not having to come to Court to give evidence at your trial. She says she was quite prepared to do that, and indeed was determined to do so. The fact that you have acknowledged your offending, however, not only means that she does not have to give evidence, but also brings closure to her in the sense that she now knows you acknowledge you offended against her. I consider that to be of real benefit to the victim and to the State. Secondly, I take into account the factors raised by Mrs Freyer. In particular, I accept that you entered your guilty pleas very soon after the results of the DNA tests were available.

[30]            I propose to allow a discount of one year eight months to reflect guilty pleas. This is less than the 25 per cent sought by Mrs Freyer, but is significantly more than the Crown contended should be accorded to the pleas.

Minimum term of imprisonment

[31]            There are two remaining issues I need to consider. The first is whether a minimum term of imprisonment should be imposed to reflect the factors contained in s 86 of the Sentencing Act 2002. In any case where an offender is sentenced to more than two years imprisonment the Court has a discretion to impose a minimum term of imprisonment. It may do so when it is satisfied the ordinary parole provisions are not

sufficient to satisfy sentencing principles of deterrence, denunciation, the need to hold the offender accountable and the protection of the public.

[32]            Ordinarily, an offender appearing for the third time on sexual charges could expect to receive a minimum term of imprisonment if only to ensure the community was protected from similar offending. In your case, however, the fact that you have remained offence-free since 2011 stands to your credit. The fact that you undertook treatment in 2005 after the sentence imposed for the 2005 offending also means you no longer pose the risk that you posed prior to treatment being administered. In those circumstances the Crown accepts that a minimum term is not necessary, and I agree with that assessment. For that reason I will not impose a minimum term of imprisonment.

Preventive detention

[33]            The remaining issue relates to the indeterminate sentence of preventive detention. The Court has the power under s 87 of the Sentencing Act 2002 to impose a sentence of preventive detention when certain qualifying circumstances have been met and when the Court considers the need to protect the community from further offending justifies the imposition of such a sentence.

[34]            There is no dispute in the present case that the qualifying factors have been satisfied. Following the entry of your guilty pleas the Crown initially said it wanted to consider whether it should ask for a sentence of preventive detention to be imposed. For that reason I obtained reports from two health assessors to assist the Court in assessing the risk you pose of further sexual offending on your release. Those reports are now to hand, and I will refer to them shortly.

[35]            In considering whether to impose a sentence of preventive detention, the Court must first consider whether there is a pattern of conduct that indicates a proclivity on the part of the offender to engage in offending of this type.5 Ordinarily, three separate convictions for sexual offending would indicate such a pattern.

5      Sentencing Act 2002, s 87(4)(a).

[36]            I have already described the present offending and the circumstances giving rise to the 1998 offending. As I have already observed, the offending in 2005 bears many similar hallmarks to the present offending. This offending occurred in the early hours of 8 October 2005. Again, you drew up in your vehicle beside a sex worker in the central city area of Auckland. The sex worker could smell alcohol on you. You agreed on a price for sexual services and she got into your car. You declined to go to a location suggested by the sex worker and drove instead to a carpark, which the sentencing Judge considered to be a pre-determined location. Once at the carpark a dispute arose about money. The sex worker wanted to be paid before administering any sexual services to you, but you had no intention of paying her. Instead, you sexually violated her by penetrating her vagina with your fingers. You did so with considerable force and caused her injury. You denied this charge and, following a jury trial, you were found guilty of sexual violation by unlawful sexual connection. You received a sentence of three years imprisonment on 3 July 2008. It was during this sentence that you undertook treatment for both your issues relating to alcohol and other issues relevant to your proclivity to offending in a sexual way.

[37]            As I have said, ordinarily a pattern of offending such as this would be a strong indicator that a sentence of preventive detention is required. In the present case, however, I consider that pattern is likely to have been broken by the factors to which I will refer.

[38]            The second issue the Court is required to have regard to is the effect of such offending on the community.6 It goes without saying that offending such as this has significant effects on the community. Single women who are in vulnerable positions at night become extremely concerned to learn of offending such as this. It is therefore serious for the victims themselves, but it also sends ripples throughout the community.

[39]            The third factor the Court must take into account is efforts the offender has made to engage in rehabilitation.7 I have already referred to this factor. You have engaged in rehabilitative processes during your last sentence of imprisonment and you have remained free from offending since that time.

6      Sentencing Act 2002, s 87(4)(b).

7      Sentencing Act 2002, s 87(4)(d).

[40]            The next factor is evidence the Court receives from health assessors regarding the defendant’s tendency to commit serious offences in the future. As I have indicated, I have received two reports from psychiatrists who have had regard to relevant background material and have then interviewed you in order to produce their reports. Both reports emphasise that your offending has been driven in large part by your consumption of alcohol. That appears to have been a major factor in your early life and I have no doubt at all that it has been the cause of all three sets of sexual offending.

[41]            The psychiatrists acknowledge, however, that you have undertaken rehabilitative processes to deal with this issue, and both consider that you are now at low to moderate risk overall of sexual offending in the future. One of the psychiatrists, Dr Jacques, goes so far as to say that he believes that a sentence of preventive detention is unnecessary in your case. That is a strong statement, because the health professionals do not normally commit themselves as strongly as that and generally leave it to the Court to assess whether or not a sentence of preventive detention is necessary.

[42]            The final factor to be taken into account is the principle that a finite sentence is preferable to the indeterminate sentence of preventive detention provided the community can be adequately protected by such a sentence.8 This really goes without saying. It is obviously important that finite sentences be imposed wherever possible where that is adequate for the protection of the community in the future.

[43]            Standing back and considering the matter overall, I need to determine whether the protection of the community requires a sentence of preventive detention to be imposed in your case. The Crown accepts that it does not, and your counsel also urges me not to impose such a sentence. I am obviously concerned at the fact that you have now been convicted on three occasions of serious sexual offending. However, I am also satisfied that all three sets of offending have been driven by your addiction to alcohol and the consumption of alcohol in large quantities. I am equally satisfied that you have taken steps to address that issue, and that your progress over the last eight years means that the community is no longer at risk of serious offending from you.

8      Sentencing Act 2002, s 87(2)(e).

indeed, in recent years you have settled down. You have devoted yourself to your family and Church. You have also obtained employment. In many ways a return to prison is a backward step so far as your rehabilitation is concerned.

[44]            The fact remains, however, that you committed a very serious offence and you must pay the price for that. I am satisfied, however, that that price should be a sentence of imprisonment and not a sentence of preventive detention.

Sentence

[45]            On the charge of rape you are sentenced to six years imprisonment. On the charge of injuring with intent to injure you are sentenced to two years imprisonment. Those sentences are to be served concurrently, which means you will serve an effective sentence of six years imprisonment. The fact that I have not imposed a minimum term of imprisonment means you will be eligible for parole in two years.

[46]Stand down.

Lang J

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland