R v Kepa - [2018] NZHC 1468

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-007385

[2018] NZHC 1468

THE QUEEN

v

GLEN TANIELA KEPA

Appearances: F M T Culliney for Crown M A Edgar for Prisoner

Date:

19 June 2018

SENTENCING NOTES OF COURTNEY J

R v KEPA [2018] NZHC 1468 [19 June 2018]

Introduction

[1] Glen Kepa, you were found guilty by a jury in the District Court of three counts of rape,1 two counts of sexual violation by unlawful sexual connection (one of them representative),2 two counts of assault with intent to injure3 and one representative count for indecent assault on a child.4 The victim of all of the offences was a young girl who lived next door to you.

[2] The sentencing has been referred to this Court because of the possibility of preventive detention being imposed on the rape charges. In this situation, I must consider what an appropriate finite sentence would be before considering whether preventive detention is the appropriate course.

The offending

[3] I am going to refer to the victim in this case as A. In 2008, when A was five years old, she and her two siblings, their father and grandmother, moved into an address next door to your then partner, Ms B. Ms B had children of her own, one of whom was your son. The children of the two households began spending time together. At that time, you were still in prison serving sentences for sexual offences against Ms B’s daughter and assault against her son.

[4] In August 2008, you were released from prison. Your post-release conditions did not allow you to associate with children, but you visited Ms B anyway with the children there. Upon the expiration of your release conditions you moved in with Ms B. You became friendly with A’s father. He died the following year, in 2009, and A stayed living next door to you in the care of her grandmother. About that time A’s younger brother also died.

[5] One morning, when A was seven years old and had slept over at your house, you woke her up and told her to come into the wash-house. You put her on a couch, pulled down her pants and raped her. You threatened to kill her or her little sister if she told anyone. You grabbed her hair and tried to force her to perform oral sex on

1      Crimes Act 1961, s 128(1)(b). The maximum penalty is 20 years’ imprisonment.
2      Crimes Act 1961, s 128(1)(b). The maximum penalty is 20 years’ imprisonment.
3      Crimes Act 1961, s 193. The maximum penalty is 3 years’ imprisonment.
4      Crimes Act 1961, s 132(3). The maximum penalty is 10 years’ imprisonment.

you, and when she refused you put both your hands around her neck, choking her until she could almost not breathe, only letting go when she nearly passed out. You kept one hand on her neck and put your other hand down…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kepa

Details

AGLC: R v Kepa [2018] NZHC 1468
Case: [2018] NZHC 1468
Decision Date: 19 June 2018

CaseChat Overview and Summary

In the case of R v Kepa, Glen Tania Kepa was found guilty of multiple counts of rape, sexual violation by unlawful sexual connection, assault with intent to injure, and indecent assault on a child. The victim, a young girl who lived next to Kepa, suffered extensive harm as a result of his offending. The sentencing hearing was referred to the High Court due to the potential for preventive detention being imposed on the rape charges. The court was required to determine an appropriate finite sentence before considering whether preventive detention was warranted.

The court considered the gravity of the offending, the vulnerability of the victim, the level of violence and threats used, the breach of trust, and the significant impact on the victim. The court found that the offending was at the higher end of band 3 and lower end of band 4 in terms of seriousness, warranting a starting point of 16 years' imprisonment. The court also considered the defendant's extensive history of violent and sexual offending against children, finding that an uplift of six months was appropriate. The court found no mitigating factors, and the defendant's limited remorse was deemed insufficient.

The court determined that a non-parole period of 50% was warranted if a finite sentence were to be imposed. However, the court concluded that preventive detention was the appropriate course. The court found that the defendant's pattern of serious offending, the seriousness of the harm caused, and the high risk of future offending supported the imposition of preventive detention. The court found that the defendant's efforts to address his offending had been insufficient, and that a lengthy determinate sentence was not preferable in this case.

The court imposed concurrent sentences of preventive detention on each of the rape charges, with a minimum period of eight years and three months' imprisonment. The court also imposed sentences for the other charges, to be served concurrently with the preventive detention sentences. The defendant received a first strike warning and was required to be registered on the Child Sex Offender Register.

Orders