R v Katipa
[2017] NZHC 2811
•16 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-092-008811 [2017] NZHC 2811
THE QUEEN
v
WILLIAM KATIPA
Hearing: 16 November 2017 Counsel:
NE Walker and ET Fletcher for Crown
AG Speed for DefendantJudgment:
16 November 2017
SENTENCING NOTES OF DOWNS J
Solicitors/counsel:
Crown Solicitor, Manukau
A G Speed, Auckland
R v KATIPA [2017] NZHC 2811 [16 November 2017]
Introduction
[1] Mr Katipa, you appear for sentence following trial in relation to a series of sexual offences against three victims: F, K and T. The charges are:
(a) Five of sexual violation, and one of attempted sexual violation; (b) Four of indecent assault;
(c) Three of threatening to kill; and
(d) A final charge of assault with intent to injure.
[2] The primary issue is whether I should impose a concurrent sentence of preventive detention; “concurrent” because you are already serving preventive detention for unrelated sexual offending. More about that shortly.
[3] Your offences were committed in prison—and while you were subject to preventive detention. All arose in the context of a two-man cell.
Facts
[4] On 6 October 2006 F was placed in your cell at Waikeria Prison. You were then 40. He was 27. Nothing happened the first night, albeit the two of you discussed your respective sexual abuse as children. You asked F what he had done to his abuser. He said he had done nothing. You told F your family had disposed of your abuser.
[5] After lock-down the next night, you made F perform a workout with you in nothing but his boxer shorts. He struggled to keep up. You later kissed F to his neck and played with his penis. You then made F penetrate your anus with his penis. You told F you wanted him to ejaculate inside you. He pretended he had. When you realised he had not, you made him penetrate you again until he did. He was terrified. He said he ejaculated only through imagining his girlfriend.
[6] Later the same evening, you penetrated F’s anus with your penis. Your offending was interrupted by a guard, who noticed the peep-hole to your cell had been covered with toilet paper. He told you to remove it. F tried to raise help by writing a note which he placed under the door. It was later recovered by Police.
[7] The next day you threatened to kill F if he told anyone about what you had done. He bravely ignored you. He made a prompt complaint after sobbing uncontrollably to a prison officer. Police investigated. However, no charges were laid. Police believed there was inadequate evidence to sustain conviction.
[8] Fast-forward to 20 September 2015 and Auckland South Correctional Facility. You were still a prisoner—and nine years older. K was placed in your cell. He was 24. You were then 49. As with F, things between you and K were initially unremarkable. You were kind to him. He formed a positive impression of you. But after lock-down that night, you told K to get on his knees. He appreciated your intentions—and resisted. You assaulted K by punching him to the head. One of your blows stunned him to the point he nearly lost consciousness. You then violated K by putting your penis in his anus. He said he came to and resisted. He fought you off.
[9] The next morning you threatened to kill him if he told anyone. He asked and was allowed to move cell that day, without saying what you had done. K said nothing until you were no longer in the same prison wing. By then you had committed further sexual offences against a third victim: T.
[10] T shared a cell with you between 13 and 20 November 2015. He was 19. To recapitulate, you were 49. Like F, T’s first impressions of you were positive. However, over the course of the week you repeatedly:
(a) Indecently assaulted T by fondling his penis and making him do the same to you.
(b)Sexually violated T, by making him suck your penis and putting his penis in your anus.
(c) During the week, you once attempted to put your penis into T’s anus.
[11] As with F and K, you threatened to kill T if he told anyone. To reinforce your point, you threatened him with a sharpened prison-issue plastic knife.
[12] After seven nights, T told a prison officer he needed to move cell. He did not complain of your offending. T was moved. He told his next cellmate what had happened, and then the Police. T’s complaint caused the Police to re-open the 2006 file in relation to F, and to speak to K.
[13] You declined to be interviewed in relation to K. In relation to F and T, you denied their allegations. You defended the case by asserting all three victims had fabricated the allegations, and by closely exploring their criminal records. You said dishonesty was a “way of life” for each victim. While I make no criticism of Mr Speed, who defended, as I said to him this morning, with skill and care, each victim could be forgiven for thinking he was on trial. Indeed, your trial provides an obvious example of why victims can be reluctant to complain about sexual offences; the process can be traumatic—indeed, harrowing.
Aggravating factors
[14] Your offending exhibits six aggravating factors—things that make it more serious.
[15] First, you gave thought to your offending before carrying it out. You took time to “size up” each victim. You identified people you believed would not resist, or could not resist, albeit you were mistaken in relation to K. You were pleasant to all three victims initially and appeared to gain their trust. But after lock-down, you turned. F said it was like you became a different person. Before committing the offences, you also covered the cell’s peep-hole and window, or made the victims cover the window for you. To be clear, no great or extensive planning was involved. However, you assessed your victims for up to a day and a night before acting. And, you employed rudimentary measures to avoid detection.
[16] Second, you used violence beyond that inherent to sexual offending. Most obviously, you assaulted K almost causing him to become unconscious. You explicitly threatened to kill all three victims. You showed T a knife. Unspoken menace accompanied your offending. You made it known to the victims you were a “lifer”; and you had nothing to lose. You also made it known you were connected or had been connected to a gang. You told T you were a “hit man”. You told F your family had disposed of your abuser. The victims were terrified of you, that is because you engineered their fear.
[17] Third, your victims were vulnerable—they could not escape. While the cells had a panic button, you knew—as did the victims—help could take a long time to arrive. The victims were too scared to push the button. You knew that. In relation to T, you put gladwrap and tape over the associated speaker, to make it difficult for the prison guards to hear if someone had pushed the button. You were an older and much more experienced inmate. Indeed, even then you were hardened. F was a fragile and nervous man, T was naive, and K was only 24. As observed earlier, you had sized them up.
[18] Fourth, your offending was significant in scale and intrusive. It encompassed three victims and extended to a variety of indignities. Sexual violation by anal connection was your preferred offence. It took two distinct forms: you made two of the victims penetrate your anus with their penis, and you penetrated or attempted to penetrate the anus of each of the three victims with your penis.
[19] I regard both forms as equally serious. Each constitutes sexual violation. The offence provision was crafted to avoid distinction as to penalty. And, T and F said being made to penetrate you was deeply humiliating and embarrassing. I consider it is highly likely to the point of near certainty, you preferred this form of violation as it could be seen as implying consent. You are well versed in the criminal justice system.
[20] To summarise this aggravating factor, your offending was significant. It involved various indignities against three victims. It was intrusive, degrading and sustained.
[21] Fifth, your offending has caused harm:
(a) K says your offending has affected him in more ways than he could imagine, he has lost trust in others, dislikes physical contact with other men, has trouble sleeping and has developed physical problems through stress. K says he has been diagnosed as suffering post-traumatic stress disorder. He feels ashamed to talk about what you did. One of the reasons sexual offending is so serious is because victims often feel responsible, even though they are not.
(b)T says he has felt sad and angry. At trial, T said your actions made him feel “violated”, “sick” and as if all his rights had been taken away. He now hopes to get on with his life.
(c) F says your offending has “destroyed his thinking” in relation to Maori men. He is angry the authorities were slow to respond to his complaints, and that doubt attached to his veracity.
[22] Sixth, this offending was committed while you were in prison for sexual offending. And, you have a history of sexual offending and violent offending. Both aspects assume particular importance.
[23] On 12 February 2002, you twice raped [a] 13-year-old [girl].1 You also threatened to kill her. You told her the sexual offending would now happen every night. You said similar things to T and F.
[24] In September 2002, you were sentenced to a term of 11 years’ imprisonment with a seven-year minimum period for the offending in relation to [the 13-year-old], which went to trial. As you may recall, a senior Judge, Fisher J, then described your record as “very bad”. The Judge said you had not previously committed a sexual
offence. On the face of your record, His Honour was correct. But in fact, you had.
1 Redacted to protect identity of the victim.
[25] While in prison for the 2002 offending, DNA analysis revealed that back in April 1994, you broke and entered the home of a 19-year-old woman and raped her. You threatened to kill her and her children with a knife. You pleaded guilty on the morning of trial. In February 2005, another senior Judge, Nicholson J, sentenced you to preventive detention with a 10-year minimum period for your 1994 offending. Nicholson J considered you posed “a significant and ongoing risk to the safety of the community”, hence the 10-year minimum period the Judge imposed.
[26] To complete the narrative, it was this sentence of preventive detention that resulted in you being celled with F in 2006, and then K and T in 2015. It follows you have been committing serious sexual offences since 1994, including while you were in prison and subject to preventive detention for sexual offending. Prisoners should be safe from other prisoners. And yet you committed sexual offences against three other men while in jail for other serious sexual offending. This aggravating feature is nothing short of grave. It goes to the heart of your culpability.
[27] Your broader criminal record discloses other offences of relevance too. You have five convictions for various types of assault, two for aggravated robbery and one for robbery. These are all now a little old, but they confirm as deeply entrenched your preference for violence, both for its own sake and as an instrument of control.
[28] The parties disagree on the starting point—the level of imprisonment before mitigating features are considered. The Crown advances a starting point of
15-17 years’ imprisonment; Mr Speed a starting point of nine years’ imprisonment.
[29] I pause at this juncture: Mr Speed stresses your institutionalisation, and the fact you have already been in prison for a very long time. He acknowledges a long sentence is required, but observes whatever happens today may well be crushing. I am conscious of these sentiments.
[30] To return to the starting point, I consider your offending sits at the top of band three of a case decided by the Court of Appeal called AM, and shading into
band four.2 I reach this conclusion because of the nature and number of aggravating features, and their combination. No other cited case is analogous.3
[31] On any view, your offending is serious. It is especially so in terms of the decision of the Court of Appeal. For these reasons, I consider the appropriate starting point is 17 years’ imprisonment.
Mitigating features?
[32] You are 51 years old. You have been in prison since 2001. You have no confirmed address beyond prison. Sadly, you have spent much of your life incarcerated.
[33] Mr Speed responsibly acknowledges “there are no significant mitigating features”. His written submissions invite attention to your involvement in teaching Te Reo within prison system. He says that may be a mitigating factor. While your enthusiasm for Te Reo is commendable, I note you bullied one of the victims (T) in relation to this course by forcing him to attend and shaming him in front of others. Consequently, your enthusiasm for Te Reo and its instruction does not detract from the gravity of your offending, nor your culpability more generally. For these reasons, I do not regard this factor as mitigating.
[34] No others are cited. I conclude there are none.
Preventive detention?
[35] The issue then is whether I should impose a concurrent 17-year prison term, or a concurrent sentence of preventive detention. A related issue is the length of any minimum period.
[36] You are familiar with the law in relation to preventive detention, for, you are already serving it. I will spare you from going through that. In your case, the issue
is whether you are likely to commit a qualifying or violent sexual offence on release.
2 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
3 R v Noble HC Christchurch CRI-2007-009-5842, 19 September 2008; and R v Gotty
[2017] NZHC 1102.
And, whether a long but determinate sentence would adequately protect the community. As you know, risk of re-offending is central to the analysis.
[37] As to that, you told the author of the pre-sentence report, Mr Lui, you would maintain your innocence “until I leave this planet”. Mr Lui assesses your risk of harm as “very high” and your risk of re-offending as “high”. Mr Lui expresses the view your risk of re-offending appears to be increasing regardless of your incarceration.
[38] A consultant psychiatrist, Dr Duggal, saw you in October 2017. You told the psychiatrist you were remorseful for your 1994 offending, but you wished to appeal your 2002 offending as you were not guilty of it. You did not wish to discuss your most recent offending. Dr Duggal says you expressed a wish “to gain access to sexual offender treatment programmes”. However, as Dr Duggal also observes, you deny this offending and your 2002 offending. You expressed a desire to appeal your existing sentence of preventive detention.
[39] Dr Duggal considers you may meet the criteria for paedophilic disorder and you do meet the criteria for anti-social personality disorder. Dr Duggal assesses your current risk of sexual recidivism as “very high”.
[40] Dr Duggal notes one of the advantages of a sentence of preventive detention is it allows any treatment gains to be assessed by the Parole Board prior to release.
[41] You have also been examined by Mr van Rensburg, a clinical psychologist. He considered your remorse in relation to your 1994 offending to be “shallow”. Mr van Rensburg notes you deny the 2002 offending and this offending. He considers your pattern of “entitled opportunistic and planned sexual offending does not appear to have diminished with age”. Rather, your victims have “generalised from female children to both female and male adults”. Mr van Rensburg says you “fully disregard the rights of others to satisfy [your] own desires”.
[42] Mr van Rensburg considers you pose a high risk of sexual re-offending, both in the community and in prison. He also considers there is a high risk you will
commit violent offences in prison. He concludes: “It is difficult to conceive a determinate prison sentence will have the required inhibiting and preventive effect.” I note Mr van Rensburg has not often encountered offending like yours; he describes it as “serious … repetitive” and “on a scale that is atypical”.
[43] I have no doubt a long determinate sentence would not adequately protect the community, even with the adoption of a 17-year starting point and the imposition of the maximum non-parole period of 10 years. My reasons can be brief, and largely re-state what I have said already.
[44] You have now committed five sets of serious sexual offences between 1994 and 2015. All five involved full penetration, and you repeatedly penetrated some of your victims. All five offence sets involved either violence or the threat of violence beyond that inherent to sexual offending. You will use a weapon, if one is available, to threaten victims or ensure their compliance. Your propensity for violence is deep-seated. It can be traced back to 1985, when you assaulted a police officer. Since then, you have graduated to aggravated robbery and other crimes of violence. Fisher J described your record as “very bad” in 2002. It is much worse now; His Honour did not know you were a sexual offender.
[45] You are undeterred by prison. That is self-evident. And you now pose a risk to other inmates, especially those who for whatever reason are vulnerable. Worryingly, your victim profile is now broader than it was at the turn of the century.
[46] I observed you closely during the trial. Your testimony barely concealed your anger. You essentially told the jury you find it difficult to control yourself, hence your self-imposed and strict daily exercise regime.
[47] The clinicians consider you pose a high risk of re-offending. Their view, with respect, simply confirms the obvious: you committed serious sexual offences in
1994, 2002, 2006, September 2015 and November 2015; and those for sentence today were committed while you were in prison for sexual offending. You acknowledge your 1994 offending, but continue to deny all subsequent sexual offending, and even your remorse for the 1994 offending is describe as “shallow”.
[48] Your observation you would like to engage in treatment for sexual offending strikes me as calculated for forensic advantage. In any event, unless you accept responsibility for all subsequent (sexual) offences, treatment is highly unlikely. You are on record as saying you will maintain your innocence until the end. You may wish to reflect on that choice. It is not helping you.
[49] Consequently, a concurrent sentence of preventive detention is the only realistic response. So too a long minimum period given the imperative of public protection. And, given the gravity of your offending.
[50] The Crown seeks a minimum period of 15 years. Any period must be the longer of that required to reflect the seriousness of your offending, or to protect the public. There is an element of arbitrariness in a selection of a figure in this context; why, for example, 15 years as against 14, or 16? Or for that matter, a much lower figure? Mr Speed urges restraint. He invites attention to the proposition any minimum period will be crushing.
[51] The answer to the question I posed earlier is that a figure of this magnitude is necessary to mark the gravity of your offending and protect the public. By then, you will be 66 years of age. As an aside, I note back in 2005 Nicholson J foresaw you may be in prison well past the age of 60, and indeed for the rest of your life.
[52] To return to the length of the minimum period of imprisonment, I adopt the Crown’s reasoning as persuasive. You have now committed sexual offences against a girl in relation to whom you assumed a position of trust; a woman who was a stranger; and men you barely knew. You have committed sexual offences in your own home; by invading another’s home; and most recently, in shared prison cells. You have not been deterred by the presence of children; the proximity of prison guards; or the sternest sentence the law can impose. You are unremorseful. And dangerous.
[53] Please stand:
(a) On all charges of sexual violation and indecent assault, you are sentenced to preventive detention, with a minimum period of imprisonment of 15 years.
(b)On the charges of threatening to kill and assault with intent to injure, you are sentenced to a term of two years’ imprisonment.
(c) All of these are concurrent among themselves, and concurrent in relation to your existing sentence of preventive detention.
[54] You may stand down.
……………………………..
Downs J
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