R v Keefe
[2015] NZHC 2622
•23 October 2015
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S
203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI 2015-054-169 [2015] NZHC 2622
THE QUEEN
v
FRANCIS KANE KEEFE
Hearing: 23 October 2015 Appearances:
D Davies and M J Blaschke for the Crown
F Steedman for Mr KeefeSentence:
23 October 2015
SENTENCING REMARKS OF MALLON J
Introduction
[1] Mr Keefe you appear for sentencing on 24 charges. These charges comprise: (a) one count of sexual violation by rape;
(b) five counts of sexual violation by unlawful sexual connection; (c) three counts of attempted sexual violation by rape;
(d) two counts of indecent assault;
(e) two counts of assault with intent to commit sexual violation;
R v KEEFE [2015] NZHC 2622 [23 October 2015]
(f) one count of aggravated burglary; (g) eight counts of burglary; and
(h) two counts of theft.
[2] The offending involved 10 incidents that occurred between 6 February 2013 and 15 January 2015 and involved entry into 10 homes. There were 10 victims overall, comprising eight victims of your sexual offending, and two victims of theft. The incidents mostly followed the same pattern, whereby you would gain entry into a house late at night or in the early hours of the morning, before proceeding to accost a young woman and sexually assault her. The victims were between 19 and 26 years old.
[3] You were convicted in the District Court on these charges following guilty pleas. You were given a first strike warning.
[4] You are being sentenced in this Court because a sentence of preventive detention may be imposed. That is the sentence the Crown submits is appropriate. Your counsel acknowledges that it appears to be appropriate. He has discussed this with you and notes that you appear to understand why that may be the most appropriate outcome. It is of course necessary for me to determine this.
Summary of facts
[5] I now summarise in sequence your offending.
The first incident1
[6] On 6 February 2013, at around 6.25 am, you gained entry into the first victim’s home. You had a knife with you. You entered the victim’s bedroom, approached her with the knife and told her not to scream. You placed its blade into
her hand and asked if she was going to listen to you. You rubbed your hand on her
1 Crimes Act 1961, ss 128(1)(b) and 128B (unlawful sexual connection); 129(1) (attempted sexual violation); and 232(1)(a) (aggravated burglary).
vagina, and inserted your fingers inside it. You attempted to insert your penis, which was flaccid, into her vagina, but were unable to do so. You left.
Incident two2
[7] On 20 February 2013, after 10 pm, you gained entry into the second victim’s home. She was in her bedroom watching a movie. You wore a mask of some kind and ran towards her. You lunged at her, and used your hands to pin her to the bed, put a hand over her mouth, told her that you had a knife, and said you would stab her if she did not stop screaming. You punched her twice on the side of her head and threatened to punch her again if she did not roll over. You started rubbing your penis against her vagina, and made several unsuccessful attempts to insert your flaccid penis into it. She pleaded for you to stop. You told her she had been lucky. She called the police and started walking to the front door. You ran back into her bedroom, and she screamed and ran outside.
A break in the offending
[8] On 22 February 2013 you committed another burglary. You were apprehended and sentenced to one year and 11 months imprisonment on 28 May
2013. I understand you were released from this sentence on 26 February 2014.
Incident three3
[9] On 13 July 2014, at approximately 5.40 am, you gained entry to the third victim’s house. The victim was sleeping. You climbed into her bed and inserted your fingers into her vagina. In her struggle she fell off the bed. You put your hand on the back of her neck, forced her head against the floor, and again inserted your
fingers into her vagina. You then left her bedroom.
2 Sections 129(1) (attempted sexual violation) and 231(1)(a) (burglary).
3 Sections 128(1)(b) and 128B (unlawful sexual connection); and 231(1)(a) (burglary).
Incident four4
[10] On 22 October 2014, at some point before 6.30 am, you gained entry into the fourth victim’s house. She awoke to find you in her bedroom. You put your hand over her mouth and told her it was going to get rough. You picked up a singlet belonging to her and used it to cover her face. You penetrated her vagina with your fingers. You placed a pillow over her face, inserted your penis into her vagina, and had sexual intercourse with her lasting several minutes. At one point, you put your hands around her neck. You spoke of your actions being a game, and said that you were glad that this was your part. You then left.
Incident five5
[11] On 15 November 2014 or 16 November 2014, you broke into the house of the fifth victim. The house was unoccupied as the victim was moving into it. You went into a closet where boxes of clothes were stored. You came across female underwear, which you spread on the floor. You left with a black jacket belonging to the victim.
Incident six6
[12] On 16 November 2014, at around 5.15 am, you broke into the house of the sixth victim. She was sleeping in her bedroom. She woke up to see you standing just inside her bedroom doorway. She tried to go to a flatmate’s bedroom, but you barged in as she was trying to close her bedroom door to stop you. You pushed her onto the bed and covered her mouth with your hand. You began touching her vagina over her shorts, and then you reached under her shorts and touched her inner thigh.
After a period of struggle, you got off and ran away.
4 Sections 128(1)(a), 128(1)(b), and 128B (rape and unlawful sexual connection); and 231(1)(a) (burglary).
5 Sections 219 and 223(d) (theft); and 231(1)(a) (burglary).
6 Sections 129(2) (assault with intent to commit sexual violation); 135 (indecent assault); and
231(1)(a) (burglary).
Incident seven7
[13] On 17 December 2014, after 10 pm, you gained entry into the seventh victim’s house. She was in her bedroom. You approached her, put your hand over her mouth, and told her that you wouldn’t hurt her if she remained quiet. You forced her onto the floor, climbed on top of her, put your hand up her skirt, and started touching her vagina with your fingers. You rubbed your body against hers. She told you that she had a heart condition. You then stopped touching her, got up, and left the house.
Incident eight8
[14] Between 4 January and 8 January 2015, you gained entry to a property and stole a sweatshirt that was outside on a washing line.
Incident nine9
[15] In the early hours of 8 January 2015, you gained entry into the ninth victim’s address through a side window. You unlocked the back door and then made your way to the victim’s bedroom. She woke up and saw you. You jumped on top of her so that she could not move, and placed a sweatshirt over her mouth, pinning her hands near her face. You angrily told her not to scream or say a word, and used your weight to prevent her from struggling out of your grip. She struggled for breath. You ignored her cries that she couldn’t breathe and told her not to say a word. You touched her vagina with your hand. You then penetrated her vagina with your fingers. She fought back. You lost your grip on her and ran out of the bedroom.
Incident ten10
[16] In the early hours of 15 January 2015, you gained entry into the house of the tenth victim who was sleeping. You walked towards the bed, positioned yourself
over her, and brought your face close to hers. You told her to keep her mouth shut
7 Sections 129(2) (assault with intent to commit sexual violation); 135 (indecent assault); and
231(1)(a) (burglary).
8 Sections 219 and 223(d) (theft).
9 Sections 128(1)(b) and 128B (unlawful sexual connection); 129(1) (attempted sexual violation);
and 231(1)(a) (burglary).
10 Sections 128(1)(b) and 128B (unlawful sexual connection); and 231(1)(a) (burglary).
and that you would hurt her. You pinned her down. You inserted your fingers into her vagina. Eventually, you got up and left.
Personal circumstances of the offender
[17] Turning to your personal history, you are 34 years old. You have 36 prior convictions entered between 1999 and 2013. This history includes the following:
(a) Nine burglary offences. These convictions were entered in 2007 (x3),
2010, 2011 (x4), and 2013.
(b)Other dishonesty offending including receiving property (2010) and unlawfully taking a motor vehicle (1999).
(c) Three counts of common assault (two in 2013, and one in 2000).
(d) Breach of conditions (three breaches of release conditions in 2011 and
2010), and failure to answer District Court Bail (2010). (e) Alcohol and driving offences.
[18] You have served a number of imprisonment sentences for the burglaries and the assaults.
[19] There are no previous convictions for sexual offending.
[20] The psychiatric and psychological reports provide some background information about you. You report having grown up in a violent household. You are something of a loner. You have a history of low moods and are currently taking prescribed medication for that. You have abused alcohol since the age of 18. The psychologist sets out a formulation as to what may have precipitated this offending. This includes an elevated sex drive, a sense of entitlement to have sex with whoever you choose, and the offending she considers was likely to have been maintained by the sexual gratification you achieved.
[21] You have expressed remorse for the offending, although the pre-sentence report writer noted that no emotion was shown with that. You have expressed a willingness to engage in treatment. Your counsel has spoken this morning about your acknowledgement of your offending and the position in which you find yourself as a result. He tells me that you have read all the victim impact statements.
[22] I have first to consider what finite sentence would be imposed if I do not sentence you to preventive detention. The aggravating features are essentially common across each of the eight victims of the sexual offending, with the differences largely being only in the particular sexual acts attempted and/or carried out. The overall scale of the offending was very high, involving ten incidents and eight victims carried out one after the other almost monthly, except for the period when you were in prison for another burglary committed during this time. There was an element of planning and premeditation. On one occasion you had a knife. On another occasion you wore a mask. On another occasion you opened the back door presumably to assist your escape. On another occasion you were heard on the property for some period prior. You restrained your victims, sometimes using violence or threats of violence. You entered the homes of your victims at times when they were in bed, and in most cases asleep. The harm to your victims is very significant as the victim impact statements before me make very plain.
[23] Looking at the offending as a whole, which is connected in nature, time and circumstances, I consider that the appropriate overall starting point, with adjustments for totality, would be 18 years imprisonment.11 An uplift of one year would be appropriate because of your previous burglary and assault convictions. I would apply a further uplift of one year because you were on parole at the time of all ten incidents. That would mean a starting point of 20 years imprisonment. With a 25
per cent discount for your guilty plea, that would mean an end finite sentence of
11 See R v AM [2010] NZCA 114, [2010] 2 NZLR 750. The unlawful sexual connection offending falls within band three for such offending (at [120], involving starting points of nine to 18 years imprisonment). The rape offending falls within band two (at [98], involving starting points of seven to 13 years). There do not seem to be any broadly comparable cases since R v AM involving sexual offenders who break into the homes of a large number of victims. Jenkins v R [2015] NZCA 131 provides some guidance as to other cases involving multiple victims. There are also several cases predating R v AM, which involved more serious sexual offending: see for example R v Thompson [1996] 2 NZLR 429 (CA); R v Heta CA173/86, 29 October 1986; R v Reekie CA339/03, 3 August 2004; and R v Johnson [2004] 3 NZLR 29 (CA). A further case of similar gravity was also decided prior to R v AM: see R v Edwards [2007] NZCA 387.
15 years. There are no other personal mitigating factors to adjust that further down in my view. An end finite sentence of 15 years, if I were to impose that rather than preventive detention, is in line with your counsel’s submissions and broadly in line with, but a little lower than, the Crown’s submissions.
[24] I consider that a minimum period of imprisonment of eight years, that is just over a half of the finite sentence, would be appropriate to reflect the gravity of the offending because of its scale, the need for individual deterrence and public safety considerations.
Preventive detention
[25] I turn now to preventive detention. You are eligible for such a sentence by age and the qualifying offences you have committed. The third criteria is the more difficult one. That is because, before preventive detention can be imposed, I must be satisfied that you are likely to commit another sexual or violent offence upon your release from the expiry of the fixed term that would otherwise be imposed. In terms of the relevant factors:
(a) I am satisfied that there is a pattern of serious offending disclosed by your history. The pattern of the present offending is clear from the details I have set out earlier. It follows on from a lengthy history of offending involving repetitive burglaries, as well as some assaults and drinking-related driving offences. As the clinical psychologist put it, your offending history has noticeably increased in both frequency and
severity since 1998. It has escalated to include sexual offending.12
(b)I am satisfied that the harm to the community caused by the offending is serious. The victim impact statements make that plain. Offending involving breaking into the homes of young women while they are
sleeping to sexually violate and assault them is terrifying for the
12 Although it has some similarities to R v King [2013] NZHC 3362 where preventive detention was not imposed, the scale of the offending was much more limited than here. Cases of assistance include R v Matakatea HC Wellington CRI-2009-085-4227, 23 April 2010; R v Kohinga [2015] NZHC 962; Jenkins v R, above n 11; R v Edwards, above n 11; and R v Mortensen [2012] NZHC 2478.
victims and causes lasting anxiety and other emotional harm, both to them and their loved ones. It is offending that causes fear in the community.
(c) The pre-sentence report writer assesses your risk of offending as high with a high risk of harm to others based on the number and nature of the current offences. The psychologist assesses you as being at a medium to high risk of sexual reoffending in a similar manner to the current offending based on the various assessment tools set out in her report. The psychiatrist assesses your risk of reoffending as higher if your offending is predatory in nature, as the circumstances before me indicate it to be. Overall I consider that you present a substantial risk of reoffending in a similar manner.
(d)As you do not have previous convictions for sexual offending, you have not had the opportunity to undertake relevant treatment and rehabilitation programmes. The report writers make recommendations about this. You have expressed willingness to engage in such programmes. However the psychologist expresses caution that intervention is not a guarantee against future offending and therefore one must be guarded in considering the prospects of a successful outcome. The psychiatrist says that you will require close supervision before any possible release and that active risk management will be necessary for the protection of the public.
It is also of note that you have had access to psychological assistance in the parole process for your previous offending. The Prison Department notes record you as having engaged positively with probation officers, yet your escalated offending occurred while the care and assistance of the parole process was available to you.
[26] While a lengthy determinate sentence is preferable if it provides adequate protection for the community, the above factors satisfy me that it would not do so in your case, even with the possibility of an extended supervision order. Of
significance here is the psychiatrist’s view that your likelihood of further reoffending is such that active management is necessary for the protection of the public and that the predatory nature of the offending poses greater potential difficulties in putting in place adequate risk management strategies.
[27] Accordingly I am satisfied that a sentence of preventive detention is the only appropriate sentence.
[28] I consider that the minimum period of imprisonment should be eight years. That is the same as I would have imposed had I imposed a finite sentence. I do not think more is required despite the Crown’s submissions. That is because you have not had the opportunity for treatment and programmes to address your sexual offending.13 The success of those are an unknown factor, but you have acknowledged your offending and you are willing to engage in them, and you should have the benefit of that opportunity to seek to show to the Parole Board, somewhat sooner than the Crown’s proposed minimum term, that your risk has significantly
reduced such that it is safe for you to be released
[29] Stand down Mr Keefe.
Mallon J
13 Compare with R v Johnson, above n 11.
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