R v Keats

[2021] NZHC 359

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2017-012-000746

[2021] NZHC 359

THE QUEEN

v

DWAYNE DOUGLAS KEATS

Hearing:

3 March 2021

Appearances:

C E R Power for the Crown

J A Westgate for the Defendant

Judgment:

3 March 2021

SENTENCING REMARKS OF NATION J

[1]    Mr Keats, you can remain seated. There is a lot I have to say in sentencing you. You have already heard quite lengthy submissions from counsel but it is important that you listen to what I am saying and try to understand and appreciate what I am saying.

[2]    I do tell all those who are in Court that you need to appreciate that I have had lengthy written submissions from counsel before today. I have had the detailed assessors’ reports. I have carefully read the detailed judgment of Judge Crosbie which explained the evidence that had been given in the case and his reasons for finding you guilty of the charges that I have to sentence you on. I have the brief pre-sentence report prepared by a probation officer and I also had the very detailed, thorough and compelling victim impact report. I was referred to a number of cases which counsel

R v KEATS [2021] NZHC 359 [3 March 2021]

suggested would be helpful to me in my sentencing exercise so I have considered those and have considered how they were relevant to my particular task.

The offending

[3]    Dealing with your offending - these offences occurred between 2 February 2017 and 17 March 2017. You were then aged 43. You were on parole from a sentence of eight years’ imprisonment imposed on 12 March 2010 on conviction for sexual violation by rape on 15 May 2009.

[4]I will refer to the victim of your offending as F. You met F through your work.

[5]    On 2 February 2017, you went to F’s house. You and F were sitting on the couch when you tried to kiss her. She attempted to keep you away from her but you brought her head forward so you could kiss her. You pulled her tights and nickers off while she was protesting. You forcibly raped her as she told you to stop. You pulled out before ejaculating and told her to put her mouth around your penis while you were standing in front of her. She performed oral sex on you then pulled away. You put your penis inside her again despite her protests. It was only when she said “please stop” that you did. You said you stopped only because she said “please”.

[6]    On 27 February 2017, you were sitting inside a car at a lookout. You had moved to that location after other people and vehicles had arrived at a spot where you had been earlier. When in the car, you inserted your fingers into F’s vagina and said “you like that”. You then drove home with your fingers inside her.

[7]    The Judge found that, in all the circumstances, F did not consent and you could not have believed on reasonable grounds that she consented.

[8]    Another sexual violation by rape occurred when you pushed F against the kitchen sink and raped her forcefully while she was pinned against the cupboard doors and sink. There was another specific incident of rape when F was on the back of the couch and you were behind her. She felt sore in her vagina.

[9]    You were found guilty of sexual violation by rape on a charge laid on a representative basis. F’s evidence was that you ordered her to have sex with you on multiple occasions at night. The distinctive feature of this offending was that you would put your hands around her neck and, while you raped her, pushed down on the tube on her neck harder and harder. You also slapped the victim and told her to move up and down the bed while you raped her.

[10]   A further charge of sexual violation by rape, laid on a representative basis, related to F’s evidence that you would wake her up and rape her in the middle of the night, grab her and tell her to get on top. She would tell you she was sore from a previous time. You would slap her on the side of the leg to get her into position and would be more forceful if she did not. So, for her, she was better off just to do what you told her.

[11]   Another representative charge related to “finishing off incidents” where you pushed F’s head down on your penis and ordered her to do that to get you to ejaculate. This was after you had withdrawn from sexual intercourse because you did not want to ejaculate into your victim’s genital area.

[12]   A further representative charge of sexual violation by rape arose out of incidents when you would get the victim into position on her hands and knees and rape her when she was saying she was sore. She was bleeding as a result of the frequent acts of intercourse.

[13]   There was a specific charge of sexual violation by unlawful sexual connection involving anal sex. On one occasion you got F to roll over. You put your fingers near her anus and then forced your penis inside her. She told you she did not like it and kept trying to push you off and flip herself back over. You were pulling on her hair which made her neck sore.

[14]   Your defence at trial to a number of the charges was that the sexual activity was consensual. Your defence as to the car incident, the kitchen incident and anal sex incident was denial that the offending had occurred.

[15]   You did not give evidence at your trial but you made two statements to the Police when interviewed about the allegations. The Judge’s careful assessment of your statements were that they raised no doubt in his mind as to the truthfulness of the crucial aspects of the Crown case. The Judge put those statements to one side. He found you guilty of the charges as noted because of the strength of all the Crown evidence. For the reasons given by the Judge, he found F to have been a reliable and honest witness on the essential issues.

[16]   In relation to a number of the incidents and charges, there was specific evidence from F that, at the time of the incidents, she told you she did not want you to do what you were doing or wanted to do. On a number of occasions, she moved physically to try and make it difficult for you to do what you were doing. On some occasions, F did not expressly tell you to stop or that she did not want you to do what you were doing but, as to those occasions, the Judge said that F’s overall narrative established a lack of consent and lack of reasonable belief in consent. He said no reasonable person in your shoes could have believed she was consenting. The Judge found that was true of the situations where you held her head down on your penis, the occasions when you forced her to submit to intercourse when you woke her up, when you pushed down on her neck with two hands while forcing her to submit to intercourse, when you forced her to submit to your having intercourse when she had her stomach on the back of the couch and you were pushing so hard that the couch was actually moving forward, and when you suddenly pushed her against the kitchen sink.

[17]   During this period of offending, there were a number of occasions when F was willingly in your company. She did not object to your cuddling her and acting lovingly towards her. She accepted that, on a number of occasions, you were both engaged in consensual sex.

[18]   Nevertheless, it is clear from the Judge’s decision that he found you had forcefully sexually violated her for your own gratification and without any concern for either her protestations or unwillingness to participate in what you were doing to her.

[19]   Relevantly, the Judge found that, for reasons personal to her, F was particularly vulnerable to manipulation and domination by you. The Judge found that your physical and mental power and control over F were factors that contributed to her actions and inaction.

[20]   The Judge drew the inference from all the evidence that, on the one hand, you could be seemingly caring and affectionate with F while, on the other hand, also being dominant, aggressive, threatening and abusive.

Previous offending

[21]   Relevant to my sentencing task is evidence of what happened in your relationship with D, culminating in your raping D in May 2009 after she told you her roughly two and a half year intimate relationship with you was over. You appeared unexpectedly at D’s home and forced yourself upon her. You pulled down her trackpants and underwear and, despite her protests, attempted anal intercourse. You had vaginal intercourse with her while she yelled “I don’t want to do this”. You ejaculated on the victim’s face and neck. The Judge who sentenced you for that offending said you did this angrily and deliberately to humiliate her.

[22]   D gave evidence at your trial for the current offending. In the District Court, Judge Crosbie held that the Court of Appeals’ decision accurately reflected some common aspects of the evidence from this victim and the evidence of F in this case.1

Each complained that [you] held them down and [were] rough with them, including manhandling them during sex. They both describe a similar mental approach by [you] to [your] relationships with them, involving insistence on frequent sexual activity, possessiveness and jealousy, and moods fluctuating between apparently loving and angry. With both women, [you are] alleged to have pursued anal intercourse against their protests. Both women are mature adults and, for the most part, the conduct complained of occurred whilst [you were] visiting their homes. Both would say, in effect, that [you] insisted on sexual activity despite refusals and protests on their part that could not have left [you] with any reasonable basis for belief that they consented to it.

1      R v Keats [2018] NZDC 20403 at [40]; citing Keats v R [2019] NZCA 59 at [20].

Submissions

[23]   The Crown submit you should be sentenced to preventive detention with a minimum term of imprisonment of 10 years. If a finite term of imprisonment is to be imposed, the Crown submit your offending is in rape band 3 of the guidelines in R v A M, with a starting point between 15 and 16 years’ imprisonment.2 They submit there should be an uplift of one year because of your prior conviction and because this offending occurred while you were on parole. They argue for a finite sentence of between 16 and 17 years with a minimum term of around 10 years.

[24]   Your counsel suggests the offending falls between the upper end of band 2 and lower end of band 3 of R v A M, justifying a starting point in the region of 13 years’ imprisonment. In submissions today, Mr Westgate responsibly acknowledged it could be around 13 or 14 years’ imprisonment. The defence suggest the uplift for previous offending should be six months. The defence said a minimum term of imprisonment would be appropriate but suggest it should be for only 50 per cent, that is around seven years’ imprisonment. The defence argue that a sentence of preventive detention is not necessary and a finite term of imprisonment with a minimum period of imprisonment will be sufficient to meet the purposes and principles of sentencing.

Consideration of a finite term of imprisonment

[25]I must first decide what an appropriate finite term of imprisonment would be.

[26]   In sentencing you, I am required to arrive at a sentence which will hold you accountable for the harm you have done to your victim and to the community, and to denounce your conduct. The sentence must reflect the gravity and seriousness of your offending and the effect upon F. I must also have regard to your personal circumstances and prospects of rehabilitation. Because of your history of sexual offending, the protection of the community is an obvious focus.

[27]   The maximum penalty for each of these offences is 20 years’ imprisonment. You have been found guilty of a range of sexual violations, penile, oral, digital and

2      R v A M [2010] NZCA 114.

anal. Violence is inherent in offences of sexual violation but associated with your offending was particular violence, acts occurring despite F being sore and bleeding as a result of intercourse with you, forceful, repetitive and pounding actions associated with rapes, and applying pressure to F’s neck during three acts of rape. F was particularly vulnerable for reasons you were aware of. But I find there was an element of premeditation in the offending. With a repetition of the offences, you knew what had happened previously. You knew precisely how you had raped her on the first occasion on 2 February 2017 despite her clear protestations. In the further offending that occurred after that, you continued to treat her in the way you had on that first occasion. You must have known what you were about to do on each subsequent occasion and had decided you could do as you wanted. In that sense, the offending was premeditated. These are all aggravating features of your offending.

[28]   The defence referred me to a raft of sentencing judgments in the High Court and District Court in support of their suggested starting point.3 I have considered these cases.

[29]   With the aggravating features I have referred to earlier, I consider your offending is at the top of band 2 (seven to 13 years) of R v A M and at the bottom of band 3 (12 to 18 years).

[30]   I consider an appropriate starting point for your offending is 14 years’ imprisonment.

[31]   An uplift of one year is appropriate because of your previous conviction and the fact this offending occurred while you were on parole.

[32]   It is not suggested there are any mitigating factors relating to you personally which could reduce that starting point.

[33]   So, I arrive at an appropriate finite sentence of imprisonment for your offending of 15 years.

3      R v AM, above n 2; R v Te Huia [2016] NZHC 1045; R v Dargaville [2012] NZHC 490; R v Chase [2017] NZHC 244; R v Houston [2016] NZDC 3967; R v S HC Tauranga CRI-2010-070-4081, 23 April 2012; R v H [2018] NZHC 2923; R v Hare [2017] NZDC 2418.

Minimum term of imprisonment on finite term

[34]   It would also be necessary to impose a minimum term of imprisonment to make you accountable for the harm you did to the victim, to denounce your conduct, to deter you from further offending and to protect the community from you. This last factor is particularly important. It is important you are in prison for a period that will increase the chances of you appreciating why the way you sexually offended with your victim was criminal and why you need to address those aspects of your personality and thinking that put both you and other women in the community at risk of further offending and all the harm that causes. You need to have a period in prison that will allow you to adopt strategies and regulate the way in which you involve yourself with women so as to avoid any risk of your offending in the way you did originally with D and now more extensively with F.

[35]   And, as your counsel acknowledged, unless you do this, it is unlikely that you will ever be considered eligible for parole.

[36]   I consider the appropriate minimum term of imprisonment on a finite sentence would be eight years.

Preventive detention

[37]   I now consider the issue of preventive detention. The purpose of preventive detention is not punitive. It is a sentence designed to protect the community from those who pose a significant and ongoing risk to the safety of its members.4

[38]   The sexual violation charges of which you have been found guilty are qualifying sexual offences. However, before I may consider your eligibility for such a sentence, I must be satisfied that you are likely to commit another qualifying sexual offence if released at the expiry date of the finite sentence. Because of the time you have been remanded in custody, I estimate, without deciding that with a sentence of 15 years’ imprisonment, at the expiry of what would be a finite sentence, you will then be in your late 50’s.

4      Sentencing Act 2002, s 87(1); R v C CA249/02 [2003] 1 NZLR 30 (CA) at [33]-[34].

[39]   If this precondition is fulfilled, I have a discretion to impose a sentence of preventive detention.5 I am required to assess the risk you will present in the future, after imprisonment and after such treatment the prison system may offer and with which you may be willing and able to engage. The Sentencing Act sets out a number of matters I must consider when deciding whether to impose a sentence of preventive detention.6

The reports

[40]   To assist me in making the assessment of the likelihood of you committing a further qualifying sexual offence and whether I should impose preventive detention, I have the benefit of reports prepared by two appropriate health assessors who the Court asked to provide reports. I have also been assisted by a report from Dr Lehany, a forensic psychiatrist who was instructed by your counsel to provide a report. You engaged with him in an interview on 15 February 2021. I direct that all three reports be made available to the Department of Corrections.

[41]   The psychologist Mr McEachen considers, somewhat tentatively, that your experience of being sexually abused by someone in your family and your perception of your mother as being subservient may have resulted in your developing a generalised hostility towards women throughout your childhood and adolescence. Mr McEachen considered it is possible that, over time, you have sought to engage in sexual activity as a form of self-affirmation and, in doing so, have been able to ignore the victims distress and their clear lack of consent to ways you were going about doing this. He considered aspects of your personality, for example limited empathy, self- entitlement, egocentricity, have made it easier for you to offend sexually by reducing your ability to respond to a victim’s distress.

[42]   Mr McEachen considered and discussed various measures that are utilised to predict the risk of further offending. He also considered whether there were certain features that could offer some protection and optimism with regard to your future ability to reduce your risk of reoffending upon release. He concluded that:

5      M (CA236/15) v R [2016] NZCA 77 at [28].

6      Sentencing Act, s 87(4).

On the basis of the actuarial data, dynamic risk factors, and lack of protective factors to disrupt an offending pathway, you currently present with a high risk of engaging in future sexual offending behaviour.

[43]   He also considered that you present with a range of problematic behavioural and affective traits that, in addition to your current denial of your offending, are likely to create significant barriers to responsive and effective treatment. He noted your pattern of offending is somewhat atypical with your initial sexual offending occurring relatively late in life. He suggested that your acknowledged rapid engagement in sexual relationships with four different women (including the victim) and sexual offending repeatedly within five months of release on parole was indicative of an escalation in the seriousness of your offending and the potential for it rather than a reduction which commonly occurs with increasing age. He considered there were aspects of your most recent offending and the violence involved that suggest a greater degree of physical violence than the previous 2009 sexual offence. He considered that your apparent willingness to sexually offend while subject to close monitoring provides little cause for optimism regarding future releases and you appear to have very little in the way of community supports that could potentially encourage you to refrain from offending in the future.

[44]   Dr Norris, a forensic psychiatrist, was able to consider various documents and reports that had been prepared for the Parole Board and the Court but was able to speak with you on two occasions for only 30 minutes. You refused to engage in assessment tests as to risk issues on the basis you considered the report as to this should be completed by a male. Dr Norris considered it important to point out that she could not provide expert opinion regarding the likelihood of reoffending upon release from a scientific perspective. I infer she was referring there to certain measures used by Mr McEachen. As required by s 88(1)(b) of the Sentencing Act, she nevertheless addressed the likelihood of reoffending based on what she knew about current risk and protective factors and treatment. In that regard, she referred to your offending in 2009, the increase in severity and frequency of offending with the current offending and the significant physical coercion associated with actual or attempted physical harm with the current offending. She referred to your lack of remorse for your offending and your denial of both the current and previous offending. She said you presented as hostile towards women during her assessment of you. Overall, she said the available

historic and current risk factors indicated you posed a significant risk of further sexual offending.

[45]Dr Lehany’s opinions are consistent with those of Dr Norris and Mr McEachen.

[46]   Like them, Dr Lehany highlighted your denial of the offending. He said you demonstrate “extreme minimisation of offending, with no discernible acknowledgment of even the possibility [your] sexual activity with the victims was not all consensual”. He noted that, in assessing one particular measure of risk, you displayed longstanding patterns of behaviour demonstrating affective and interpersonal and lifestyle traits which suggest a higher risk of offending.

[47]   In assessing risk, he noted that you appeared adept at initiating sexual relationships and your lack of empathy for others, including victims, made it less likely that you would be inhibited from further sexual offending. You were also not deterred from offending through being on parole and entered into relationships where you and the victim were at risk of further offending without the knowledge of those who were supervising you in the community.

[48]   For reasons referred to by Dr Norris in her report, Dr Lehany considered it difficult to quantify the level of risk of reoffending.

[49]   You refused to engage with the probation officer who had to prepare a pre- sentence report, adamantly denying any offending. Corrections assessed the likelihood of your reoffending as high, given your current offending mirrored the 2009 offending. Corrections also assessed the risk to others as high, given the gravity of your current offending.

My assessment

[50]   I consider you have demonstrated a pattern of serious offending. There was the offending in 2009 and now the more extensive and serious offending that occurred in 2017 when you were released on parole. There was a gap in between but that was because you were in prison.

[51]   There can be no dispute as to the serious harm that results from the offending of which you have been convicted. F’s victim impact statement should have made that clear to you. With your particular risk of reoffending, there is a risk of further significant harm being done to other women in the community.

[52]   The information I have already referred to, indicates there is a tendency for you to commit serious sexual offences in the future. I consider the risk of your continuing to sexually offend is significant unless you commit to successful and intensive specific treatment to address the attitudes which have led to your offending.

[53]   You have not benefited from treatment or counselling programmes to address the cause or causes of your offending but that has been because of your consistent denial of all offending. Without a change in that attitude, it is unlikely you will benefit from such treatment in the future.

[54]   Consistent with the opinions of the report writers, I consider you are likely to commit another qualifying sexual offence at the expiry of the sentence I would otherwise impose for this offending. Consistent with the reports just referred to, I consider sexual violence in the future is most likely to occur in the context of intimate relationships. I consider such offending is likely because, with both your previous and current offending, you have shown no empathy for your victims and have been insensitive to their unwillingness to engage in the sexual acts you embarked upon. With all that offending, your attitude towards women and sense of entitlement as far as sexual gratification is concerned, any woman you enter into a relationship with will be at real risk of similar offending.

[55]   That risk might be reduced if, through counselling or treatment, you could come to understand that your attitude towards women and the way you force yourself on them for sexual gratification causes them real harm and is criminal. As the report writers say, your current denial of your offending is a barrier to your receiving and benefiting from the treatment and counselling you need but, with a long prison sentence of the sort you will be subject to, there remains a possibility that, ultimately, you will be able to benefit from such treatment while serving a prison sentence.

[56]   Mr McEachen noted a treatment programme that would be appropriate for you. He said you would not likely be considered suitable for this until you acknowledge at least some aspect of your sexually abusive behaviour. He also considered that the prospects of your doing this would appear to be remote while you are still engaged in the appeal process over your current convictions.

[57]   If however that appeal is unsuccessful, you will have the opportunity to reassess the way you think about your behaviour with the victims of your offending.

[58]   Dr Norris considered you would benefit from attending a group-based psychological treatment programme for sexual offenders that particularly addresses your violence, cognitive distortions about sex and hostility towards women.

[59]   Mr McEachen noted that, although your entrenched stance of denial limits your ability to progress towards rehabilitation, you have been displaying relatively settled behaviour in the custodial environment. You have not had a misconduct recorded for about four years, despite having been in prison on remand since early 2017. This suggests that, at least from a security point of view, there will be greater potential for you to be involved in an appropriate treatment programme.

[60]   The information before me also indicates you are capable of being in a relationship with women where there is not sexual violence of the sort you have been convicted of. Evidence was given at your trial from a person with whom you had such a relationship.

[61]   When you were sentenced in 2010 for your first offence of rape, on the information before him, the Judge accepted that your offending then was out of character. You were in a de facto relationship for nine years before 2007. That former partner was interviewed for a pre-sentence report in 2010 and did not tell the report writer of any sexual violence that she had been subjected to. I note however Mr McEachen referred to a 2012 psychological report which must have been prepared for Corrections. The report indicated that someone you had been in a relationship with said you had been self-centred and manipulative and violent towards her, although she had never complained about this to the Police.

[62]   I must have regard to the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. In this regard, I also weigh in the balance the potential for Corrections to seek an extended supervision order that would enable them to have some oversight of your particular living and work conditions on your release. As of now, the prospect of such potential oversight providing protection for the public would appear to be limited. You were on parole and indeed subject to electronic monitoring at the time of this latest offending. You were able to put yourself in relationships with other women which put them at risk without Corrections knowing of this.

[63]   However, Mr McEachen has said you would potentially benefit from extensive release planning prior to your release. He said your relationships with women are an area that would require particularly vigilant oversight and particular consideration would have to be given to any future employment opportunities where you would have the potential to pursue a potential victim that you may have had only casual contact with. Dr Lehany said work places should be made aware of the risk you present and the risk of you engaging co-workers in intimate relationships which could lead to sexual violence. While he considered that sexual violence in the future was most likely to occur in the context of intimate relationships, he considered that risk was likely to be reduced in the absence of intimate relationships or where such relationships were closely supervised.

[64]   I have some regard to your age and the age at which you will be released from a finite prison sentence. Despite the unusual pattern of recent offending, there is some hope that, as you grow older, you will become more able to restrain yourself from the sort of offending you have been convicted of or you will be open to the sort of treatment and counselling you need to reduce the risk of future offending. I trust you heard the victim of this offending say directly to you that that is what you need to do.

[65]   On balance, by a narrow margin, I have decided that, in all the circumstances, your offending can be dealt with by way of a finite sentence with a minimum term of imprisonment.

[66]   Mr Keats, you need to understand that, if you do not address the causes of your offending, it is likely you will not be released on parole. If you do not acknowledge and address the causes of your offending, you are likely to offend again. There will be a risk of you doing serious harm to others. I warn you now that, if you offend like this again, you will almost certainly then be sentenced to preventive detention.

[67]Mr Keats, please stand.

[68]   On each of the charges on which you have been found guilty, you are sentenced to imprisonment for 15 years with a minimum term of imprisonment of eight years. All sentences are concurrent.

Solicitors:

RPB Law, Dunedin

J A Westgate, Barrister, Dunedin.