R v Kohu

[2014] NZHC 134

ORDER MADE PROHIBITING PRE-RECORDED VICTIM IMPACT STATEMENT TO BE RECORDED OR PLAYED BY MEDIA

SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THESE SENTENCING NOTES PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011: SEE PARAGRAPHS [6]-[8]

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2013-042-000585 [2014] NZHC 134

THE QUEEN

v

PATRICK TAIRERE KOHU

Counsel:

J M Webber and S K O'Donoghue for Crown

A J D Bamford for Prisoner

Sentence:

14 February 2014

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Kohu, this morning I am sentencing you on the 16 charges that the jury found you guilty of in December last year.

[2]      You were found guilty of:

(1)       six charges of sexual violation by unlawful sexual connection;

(2)       three charges of doing an indecent act with intent to insult or offend; (3)      two charges of assault with a weapon;

(4)       three charges of male assaults female;

R v KOHU [2014] NZHC 134 [14 February 2014]

(5)       one charge of compelling an indecent act with an animal;  and

(6)       one charge of breaching a protection order.

[3]      The Crown has recommended that I sentence you to prison between 16 to 18 years, with a minimum non-parole period of not less than half the period of imprisonment which I impose. Your counsel, Mr Bamford, has urged me to impose a more lenient sentence of between 14 to 15 years’ imprisonment.   Part of Mr Bamford’s submission is based on the view that your rehabilitation prospects are high and that you have no wish to resume contact with your former partner.  It will be clear to you and from the submissions of counsel that I will be sentencing you to prison for a long time. The only issue is how long.

[4]      In sentencing you, I shall:

(1)       explain your offending;

(2)       explain the impact of your offending upon your victim; (3)    outline your personal circumstances;

(4)       explain the principles I will apply when sentencing you; (5)   explain the starting point of your sentence;

(6)       decide what if any adjustments can be made to your starting point; (7)         explain your end sentence;  and

(8)       set the minimum period of imprisonment.

Your offending

[5]      Your offending for which I am about to sentence you commenced in early

1997 and culminated in four offences in March 2013.  I shall describe your offending by reference to the places and times when your offending occurred.

[6]      [Suppressed] [7]      [Suppressed] [8]      [Suppressed]

The impact of your offending

[9]      It was very clear from her evidence that your offending has had a profound impact upon your former partner.  Her victim impact statement left no room for doubting the devastating effect of your offending upon her life.   She is suffering from post-traumatic stress disorder and other psychological conditions as a result of the persistent way you abused and tormented her.

[10]     Your  offending  was  grossly  abusive,  degrading  and  inhumane.     Your offending is amongst the worst that I have had to consider in 35 years as a defence lawyer, prosecutor and Judge.

[11]     Sadly, the impact of your behaviour on your children and in particular M, who had the courage to give evidence against you, is also very disturbing.

Your personal circumstances

[12]     You have refused to co-operate with the Probation Service who have not been able to prepare a pre-sentence report which would normally explain your personal circumstances.  Instead I am told you swore at the probation officer and claimed you were the victim of racial bias and that you have not received a fair trial.

[13]     I do, however, have a list of your previous convictions which shows you have approximately 96 previous convictions dating back to 1974, most of which are irrelevant for the purposes of the sentence I impose upon you today.  You have, however, been sentenced to prison on at least four occasions over the last 13 years, most relevantly in March 2010 for amongst other things, assaulting your former partner.

Principles governing my sentence

[14]     The sentence I shall impose upon you is designed to:

(1)hold you accountable for the harm you have done to your former partner, your children and to the community;1

(2)provide for the interests of your former partner, who is the principal victim;2

(3)       denounce your conduct in the strongest possible terms;3

(4)       deter others from behaving in a similar way;4

(5)       protect the community from you;5   and

(6)impose  the  least  restrictive  outcome  that  is  appropriate  in  the circumstances.6

I am striving to impose a sentence that is proportionate to both the gravity of your offending and the degree of your responsibility for your offending.

[15]     In sentencing you I shall treat the sexual violation offending in Stoke in March of last year as the lead offences.  That offending involved depravity and humiliating conduct.  You forced your partner to suck your penis after you had violated her by anal intercourse; you forced her to look in the mirror as you violated her and you told her to bark like a dog while you violated her.  This offending took place in the context of a history of threats and after you had on an earlier occasion

threatened her with a knife.  It also involved a breach of a protection order.

1      Sentencing Act 2002, s 7(1)(a).

2      Section 7(1)(c).

3      Section 7(1)(e).

4      Section 7(1)(f).

5      Section 7(1)(g).

6      Section 8(g).

[16]     In my assessment, your offending in Stoke in March last year justifies a starting point of 14 years’ imprisonment.  I have reached this conclusion because in my assessment your offending in Nelson sits in the middle of band three of the categories explained by the Court of Appeal in R v AM.7   In particular, I identify the following three serious aggravating features:

(1)Your  offending  involved  a  disturbing  degree  of  violence,  which followed a period of you having threatened to kill your partner and threatening her with a kitchen knife.  In addition, you detained your partner for most of the weekend of 1 and 2 March 2013.   She only escaped from you when you took a shower.

(2)Your offending caused significant harm to your victim, who continues to suffer from post-traumatic stress disorder and other serious psychological issues.

(3)The scale of your offending was significant and it involved violent sexual abuse over an extended period and deeply disturbing indignities.

Adjustments

[17]     I propose to increase the starting point of 14 years’ imprisonment by a further two years’ imprisonment to reflect the totality of the offending that you have been convicted  of,  and  to  reflect  the  gravity  of  your  other  offending.8     In  the circumstances of your case it is more appropriate to impose an uplift to the starting point of your sentence instead of imposing a higher sentence.  This is because I have assessed your Stoke offending as middle-band three offending under R v AM, but the inherent cruelty and disturbing nature of your earlier offending warrants an uplift.

[18]     Much of your earlier offending preceded the judgment of the Court of Appeal in R v AM, but I am sure had you been sentenced at that time for the offending that I

am  referring  to  you  would  have  been  sentenced  to  a  very  lengthy  period  of

7      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

8      Sentencing Act 2002, s 85(1).

imprisonment, particularly in relation to the sexual violation charges.  It is therefore essential that the sentence I impose on you also reflects the seriousness of your earlier offending.

[19]     I have endeavoured to assess whether or not there are any features that can be applied to reduce your end sentence.  Unfortunately, I can find nothing to mitigate the sentence of 16 years’ imprisonment.  In particular, your hostile attitude to your victim, your counsel, the police and the Court, strongly indicate you have no remorse and that you cannot find fault in your own conduct.  It is most unfortunate that you have refused to assist in enabling me to understand your background and whether there are factors in your past that might help explain your offending and which might have enabled me to reduce the penalty I am otherwise bound to impose.

Minimum period of imprisonment

[20]     I propose to impose a minimum period of imprisonment because I am sure that the period otherwise applicable under s 84(1) of the Parole Act 2002 is insufficient for the purposes of accountability, denunciation, deterrence and/or protection of the community.  In my assessment, your offending and your complete lack of remorse and appreciation of the impact of your offending on your victim justifies a minimum period of eight years’ imprisonment.

Conclusion

[21]     Mr Kohu, can you now please stand.

[22]     I am sentencing you to 16 years’ imprisonment on Charges 14, 15 and 16 in the indictment.  You are sentenced to a minimum period of imprisonment of eight years in relation to those three charges.

[23]     On Charges 3, 4, 8 and 9, you are sentenced to a concurrent period of seven years’ imprisonment in relation to each of those offences.   On Charge 13, which concerns the breach of a protection order you are sentenced to a concurrent sentence of 12 months’ imprisonment.  On all other charges you are sentenced to a concurrent

period of 18 months’ imprisonment on each of those charges.  This means the times

you will serve in prison for all your offences will run together.

[24]     Stand down.

D B Collins J

Solicitors:

Crown Solicitor, Nelson

Bamford Law, Nelson for Prisoner