R v Kepa
[2018] NZHC 1468
•19 June 2018
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 on her vagina. When there was noise from the house indicating that someone else was awake, you told her to walk through the front door to pretend that she had come from her own house. A was bleeding after this rape and had difficulty walking. She was too scared to tell anyone.5
[6] About two years later, when A was nine-and-a-half years old, she was asleep in her room in her grandmother’s house and woke to you pulling her pants down. You put your hand over her mouth and she tried to kick and scream. You punched her hard in the head. She felt dazed, sore and dizzy. When she came to from that blow you were trying to put something inside her, but she could not tell if it was a body part or something else, and then you raped her.6
[7] During the time A was living next door to you, you would force her into oral sex, which happened a couple of times. You would place your hands on her head and threaten to hit her unless she opened her mouth. She complied out of fear. You also indecently assaulted her many times, touching her chest, her thighs, her bottom, when no-one else was watching, and touching her vagina through her clothes.7
[8] A moved away in 2013 but continued to visit her grandmother during the holidays. You and Ms B had separated and you moved into A’s grandmother’s house and started a relationship with her. One night in the school holidays, when A was 11 or 12, her grandmother left her and her younger sister alone with you. When A’s sister was asleep and A was watching TV in the lounge by the fire, you grabbed her hair and laid her on the floor. You took a piece of wood from the fire, burning it until it was glowing. You tried to touch her with the burning wood. She was crying and backing away. You hit her around the head with the wood. You put a hand over her mouth and raped her. Then you put your hand inside her vagina. Next you tried to put your clenched fist inside her, causing intense pain. A recalled being terrified. When you heard the grandmother’s car come back, you made her put her clothes back on and pretend to be asleep on the couch.8
5 These events gave rise to one count each of rape and assault with intent to injure.
6 This was the basis of one further count each of rape and assault with intent to injure.
7 This was the basis of the representative charges of unlawful sexual connection and sexual assault.
8 This is the basis of the final rape charge and the other charge of unlawful sexual connection.
Victim impact
[9] A’s victim impact statement speaks of the profound and distressing effect of this offending. Sexually active from a young age, much younger than she would otherwise have been, with multiple attempts at suicide and ongoing depression, A is now 15 years old with a five-month-old baby of her own which she says would never have happened but for all of this distressing offending in her childhood. She now says that even though she suffers from depression she has to put her baby first. Well, the reality for A is that she is always going to struggle with what you did to her, and for a 15-year-old to have to say she has to put her baby first is a very distressing thing to hear.
A finite sentence
The starting point
[10] So, I turn to what an appropriate finite sentence would be for the rape charges. The main objective in sentencing on cases like this is to denounce the offending, deter this kind of offending in the future, hold you accountable for the harm that you have done and provide for the interests of the victim.9 I have to apply the principles set out in the Sentencing Act 2002. These include taking into account the gravity of the offending and imposing the least restrictive sentence that is appropriate in the circumstances and also to take account of rehabilitative possibilities for you.10
[11] The Court of Appeal provides guidance for sentencing judges in rape cases in its decision R v AM. There the suggested range for sentences for rape depend on the seriousness of the offence, taking into account a number of factors that aggravate the offending. They include the vulnerability of the victim, actual or threatened violence beyond that inherent in the rape itself, the degree of violation and any breach of trust.
[12] Offending that is accompanied by two or three aggravating factors that increase culpability to a high degree, such as a particularly vulnerable victim or serious additional violence, or more than three of the factors to a moderate degree, typically described as band 3, attracts a starting point of 12 to 18 years.11 The same kinds of
9 Sentencing Act 2002, s 7.
10 Sentencing Act 2002, s 8.
11 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [105].
factors but involving multiple offences over time, described as band 4, attracts a starting point of 16 to 20 years.12
[13] The Crown seeks a starting point between 15 and 16 years’ imprisonment, submitting that the high number of aggravating factors present warrants a starting point at the bottom of band 4 of R v AM. The Crown acknowledges that while the abuse occurred over a prolonged period, the most serious offending did not occur on a frequent basis. Your counsel, Mr Edgar, submits that the appropriate starting point is between 14 and 16 years’ imprisonment, so there is not very much difference between them.
[14] My view of the offending is this. First, A was exceedingly vulnerable. She was seven at the time of the first rape, a visitor in your house and therefore under your care. Moreover, this child had recently lost her father and her younger brother. The second rape occurred when she was asleep in her own bed in her own house and should have felt safe when she was nine years old. The third rape occurred when she was left in your care and her grandmother was out.
[15] Secondly, there was high level of both actual and threatened violence in each incident of sexual violation. You strangled a seven-year-old to secure compliance. You punched her in the head on the next occasion. You hit her with a piece of burning wood from the fire on the third occasion. These actions were accompanied by threats of further violence, including burning the victim with the heated wood, threatening to kill her or her sister if she reported the offending. Such violence was completely gratuitous because you were a heavily-built man in your 30s and she was a little girl. You did not need to do all of that.
[16] Thirdly, there was a high degree of violation in your offending. Actual penetration of a young victim left bleeding after two of the rapes. The use of your fist to try and penetrate her on the third occasion caused terrible pain.
[17] Fourthly, your rape of this child was an abuse of trust of her and her family. She was often under your care. You had become a friend of her father and a partner of her grandmother. That was your position in her family when you offended against
12 R v AM (CA27/2009) [2010] NZCA 114, above n 12, at [108].
her. I note in this regard that the pre-sentence report writer considered that your offending was planned and calculated, using or creating time alone with the victim.
[18] Fifthly, the effect on A has been significant. As you can see from the victim impact report which I gave you to read during sentencing and must surely have brought home to you the terrible effect and long-lasting effect that your offending has had on this child.
[19] Finally, the scale of the offending, while not frequent, was over an extended period and interspersed with instances of indecent assault.13
[20] In assessing where your offending sits in terms of this approach I have had regard to other similar cases involving offending against children. I do not need to discuss them in detail.14 Some involve more than one victim, whereas here there was only one child. But the offending here is very serious. Others involve one victim with similar offending. I mention only two specifically.
[21] The first is Triggs v R which involved a representative charge each of rape, sexual violation by unlawful sexual connection and indecent assault. The defendant was a grandfather figure to and responsible for the care of the victim who was aged between seven and 10. The offences occurred with some frequency over a period of three years. The case was treated as being at the top of band 3, with a starting point of 15 years, though the Court of Appeal observed that it could have been into band 4.
[22] The second case is R v Batey which involved a defendant convicted of sexual violation by rape, two individual charges of doing an indecent act on a child under 12 and one representative charge of an indecent act on a child under 12. The defendant was friends with the victim’s father and would sometimes care for her or stay overnight at her house. The offending occurred when she was between seven and 10. The starting point was 16 years.
13 See R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [49] where the Court of Appeal said:
[49] On the other hand, a realistic view is to be taken where a number of offences are committed as part and parcel of what is, in substance, a single incident. Offending in one case involving indecent assaults followed by sexual violation by rape may be no more serious than offending in another case in which the only offence committed is sexual violation by rape. What is required is a common-sense approach to overall culpability.
14 R v Kupa [2014] NZHC 1415; Roberson v R [2013] NZCA 642; R v R [2017] NZCA 210; Triggs v R [2012] NZCA 543; R v Batey [2012] NZHC 3001.
[23] Taking these cases into account and comparing them with your offending, which involved a breach of trust, serious actual violence and threats, including strangulation and blows to the head to facilitate the offending, combined with the extent of violation and harm, I consider that this case falls between the higher end of band 3 and the lower end of band 4 and a starting point of 16 years is appropriate.
Personal aggravating and mitigating features
[24] I turn next to the factors that might cause me to adjust that starting point. You have seven convictions for violent and sexual offending against children prior to this. In 2004, when you were living with Ms B, you sexually violated her daughter, who was then six.15 That child committed suicide 10 years later.
[25] That same night Ms B’s daughter told her brother what had happened and he told his mother. When confronted you choked Ms B’s son who was then aged nine. You lifted him up by the neck so his feet were dangling. When he tried to get free you bit him on the ear, tightened your grip around his neck so that the child was having breathing difficulties. Then you took him into a bedroom and threw him around the room, causing his head to strike the edge of the wall and bed multiple times. You punched him in the face and applied pressure to his throat so that he became semi- conscious.16
[26] In 2010, you were convicted of assault with intent to injure for slapping the same boy in the face.
[27] In 2016, you were convicted of three charges of assaulting A’s younger sister, hitting her on the hands with a drumstick, pulling her hair, slapping her hands and hitting her with a garden implement.
[28] An uplift from the starting point is clearly warranted and I think six months is appropriate.
[29] There are no mitigating factors that could be taken into account. The pre- sentence report writer and two psychiatric report writers all refer to your very limited
15 Mr Kepa was convicted of indecent assault and sexual violation by unlawful sexual connection for doing so. He was sentenced to a total period of imprisonment of three years and three months.
16 Mr Kepa was convicted of injuring with intent to injure.
remorse. You have said you are sorry for your actions, though one report writer noted that that appeared to be for your current circumstances and the seriousness of your situation rather than genuine empathy for the victim. You presented as only concerned about yourself and your future and would not comment when you were asked to reflect on your offending.
[30] I accept that today you have tendered a letter in which you express remorse and promise to commit to a rehabilitation programme. That is a positive thing and I acknowledge that. But frankly, it is far too little and far too late at this stage of the game, and quite honestly shows a continuing lack of insight into the true effect of your offending on A.
Minimum period of imprisonment
[31] A minimum non-parole period of 50 per cent would certainly be warranted to reflect the principles in s 86 of the Sentencing Act if a finite sentence were to be imposed.
End finite sentence
[32] So if a finite sentence were imposed it would be 16-and-a-half years’ imprisonment with a minimum period of imprisonment of eight years and three months.
Preventive detention
[33] But I turn next to consider the issue of preventive detention. For that to be imposed there are three conditions to be met.17 The defendant must have been convicted of a qualifying sexual or violent offence, which you have. You must be aged over 18, which you are. And the Court must be satisfied that you are likely to commit another qualifying offence if released at the sentence expiry date.
[34] When assessing that third condition I have to have regard to the following factors.18
17 Sentencing Act 2002, s 87(2).
18 Sentencing Act 2002, s 87(4).
(a)any pattern of serious offending disclosed by your history;
(b)the seriousness of the harm to the community caused by the offending;
(c)information indicating a tendency to commit serious offences in future;
(d)the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e)the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society.
[35] I have the benefit of two psychological reports from Drs Skipworth and van Rensburg.
[36] Before I review their conclusions I briefly note your personal circumstances. You are now 41 years old. You had a childhood that was somewhat disrupted as a result of family violence which seems to have been fuelled largely by your father’s drinking. But otherwise you did not report any particular problems. You started drinking and using cannabis at school and that has been a factor in your offending. Your parents are now dead and you are not close to your sisters. Your long-term relationship with Ms B had been over at the time of the report writer’s interview with you. I do not know if that is still the case. You appear not to have regular or close contact with your children. You have no history of mental health issues.
[37] It is notable that while imprisoned on the charges relating to your step-children you completed an intensive sex offenders course. I will come back to that point.
Pattern of serious offending
[38] I start by considering whether your offending shows a clear pattern of offending against young girls to whom you have had access through family or friends. Dr van Rensburg considered that you used sex with them as a coping mechanism when you were finding things difficult, particularly in your adult relationships. You would resort to violence in order to gratify your sexual needs. It is clear from your conviction history that you have a history of acting violently against children quite apart from the
sexual offending. The overall pattern of your offending is highlighted by the very short time between your release from prison and your offending against A.
[39] I consider it very worrying that your offending against A was much more violent and degrading than your offending against your step-daughter. The third rape was particularly violent and accompanied by the terrifying threat of being burnt. It seems to me that the pattern of your sexual offending was one of increasing violence.
Seriousness of harm to the community
[40] Your offending, both past and present, poses a serious threat to the community. You have targeted vulnerable young children on two occasions now. Rather than show concern about the effect on them and their families, you have used your position of trust to offend.
Tendency to commit serious offences in future
[41] Looking ahead to consider the likelihood of future offending, Dr Skipworth conducted tests based on both static and dynamic factors. The Static 99 R test put you in the moderate to high-risk group, where 15 per cent of individuals with your score would sexually re-offend within five years of release. The SVR-20, which assesses 20 static and dynamic factors put you at a high risk of further sexual offending, with the greatest risk being against pre-pubescent girls with whom you came into contact or for whom you might develop a caregiver role.
[42] Dr Skipworth considered that you should successfully complete a Child Sex Offender Treatment Programme and a drug treatment programme. An indeterminate sentence would give you the opportunity to do that and for you to be re-assessed following treatment and prior to release. It is true that the same treatment could be provided in the context of a finite sentence, though there would be no certainty about your response to treatment prior to release if that were the case.
[43] Dr van Rensburg completed the Static 99 assessment and found that your risk was above average. He also completed the STABLE 2007 assessment for dynamic risk factors and found you to be in a high-risk group in that test.
[44] In considering these results I take into account the fact that your current offending occurred very soon after you were released from prison where you had completed the intensive sex offenders course Te Piriti, which Dr van Rensburg says has a high success rate, and you had completed a relapse course during your parole period. In these circumstances, I am satisfied that you are at a high risk of re- offending.
Efforts to address offending
[45] In relation to the effort to address the offending last time and undergoing the intensive nine-month child sex offender programme, you were said for the most part to have been a constructive group member and to have gained insight and understanding of the factors that led to your offending. But, it is also said that you responded in a passive manner and you lacked commitment. You completed the programme, but were found to have used and supplied cannabis to others during that time. You were found to have possessed and used pornography after completing the treatment programme, which was of real concern because it was deemed relevant to your ability to manage your risk of sexually offending on release.
[46] After release, you attended the relapse prevention groups. You were given the skills and a strategy to keep you out of situations that could have caused you to offend, but you either could not or chose not to implement those plans.
[47] Dr Skipworth considers that you have a profound lack of understanding of your sexual offending. Dr van Rensburg considers that you lack motivation to change.
Principle that lengthy determinate sentence is preferable
[48] I accept that, in general, a lengthy appropriate sentence is preferable. Mr Edgar has suggested that a finite sentence might be bolstered by an extended supervision order. I accept that that is a factor to consider when determining whether preventive detention is appropriate. And you will of course be placed on the Sex Offender Register, which will allow the police to monitor your whereabouts.
[49] However, Dr van Rensburg considers that you have few real protective factors against re-offending. There is no evidence of you following through with your rehabilitation last time and you lack self-control.
Conclusion on preventive detention
[50] So to conclude, you have a pattern of violent and sexual offending against children. I consider that the pattern of sexual offending is one of increasing seriousness. The most serious offences occurred shortly after you had completed an intensive sex offenders programme. That made no difference. The relapse programme designed to help you avoid situations that might lead you into offending made no difference. You have been assessed as being at high risk of re-offending.
[51] I am satisfied that if a finite sentence were imposed you would nevertheless be likely to commit another qualifying offence upon release. Even allowing for a minimum period of imprisonment and an extended supervision order, the risk to the public is far too high.
Sentence
[52] I impose concurrent sentences of preventive detention on each of the rape charges with a minimum period of eight years’ three months’ imprisonment.19
[53] In relation to the other charges I impose: 12 months’ imprisonment for assault with intent to injure20; five years’ imprisonment for sexual violation by unlawful sexual connection21; 12 months’ imprisonment for assault with intent to injure22; 12 months’ imprisonment for doing an indecent act on a child23 and five years’ imprisonment for sexual violation by unlawful sexual connection.24 They are to be served concurrently with the sentence of preventive detention.
Warning
[54] You received a first strike warning when you were convicted in the District Court and I am going to repeat that. If you are convicted of any serious violent offence other than murder or any sexual offence other than murder that is a qualifying offence. If the Judge imposes a term of imprisonment on you in the event of you committing
19 Charges 1.3 and 6.
20 Charge 2.
21 Charge 4.
22 Charge 5.
23 Charge 8.
24 Charge 9.
such offences, you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, you must be sentenced to life imprisonment and that will be served without parole unless it would be manifestly unjust to do so, and in that event the Judge must sentence you to a minimum period of imprisonment.
[55] I also record that you will be required to be registered on the Child Sex Offender Register25 pursuant to the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.
P Courtney J
25 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7 and Sch 2.