R v Kurei
[2015] NZHC 2385
•1 October 2015
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-063-3579
CRI-2015-063-0855 [2015] NZHC 2385
THE QUEEN
v
LYNNE PAUL KUREI
Charges:
Plea:
Indecent act on a child under 12; Indecent assault; Sexual
violation by rape (4); Sexual violation by unlawful sexual connection (3); Rape (2)
Guilty
Counsel:
A J Gordon for Crown
M J Hine for PrisonerSentenced:
1 October 2015
SENTENCING NOTES OF BREWER J
Solicitors: Gordon Pilditch (Rotorua) for Crown
Families Matter Law Practice (Rotorua) for Prisoner
R v KUREI [2015] NZHC 2385 [1 October 2015]
Introduction
[1] Mr Kurei, you pleaded guilty on 4 August 2015 to 11 sexual offences committed against three children.
The facts
[2] In 1984 you raped E. She was five or six years old. You were 14. You were babysitting her. You lay on top of her, squashing her face with your chest. She had difficulty breathing. You moved up and down on top of her with your penis inside her vagina.
[3] On another occasion E was in the toilet. You went into the toilet and shut the door. You took her off the toilet, sat down on it and put her on top of you. You put your penis inside her and moved her up and down. She wanted to get off but you held her down. You told her not to tell her mum and dad.
[4] In 1999 you entered a relationship with your then partner. She lived with her
11 year old sister, L. One night, L was sleeping on a mattress in the lounge. You and your partner were sleeping on the couch. L woke up three times during the night to you putting your hand down her pants and touching her bottom.
[5] On another occasion, while L was on the mattress, you kissed her and felt her breasts over the top of her clothing.
[6] One night there was a party at the house. You were in your car with L. She was intoxicated. You kissed her and put your tongue into her mouth. You then drove to a different street. You grabbed her hand and forced her to touch your penis. You then took off her shorts and underwear and raped her. She cried out in pain and repeatedly asked you to stop. You refused. You only stopped when she told you she needed to go to the toilet.
[7] Between 2003 and 2009 you offended against A. She was the niece of your partner. She also lived in your partner’s home. She suffered, and suffers, from a congenital respiratory condition.
[8] Around A’s eighth birthday, you came into her room when she was in bed, removed her blankets and began rubbing her genitalia over her clothing with your palm and fingers. From then on you regularly came into the room, removed her blankets and underwear, and inserted your fingers into her genitalia. A says this offending took place around 10 times.
[9] When A was about 10, you came into the lounge where she was sleeping. You laid beside her, removed her underwear, then rubbed and touched her genitalia with your fingers. You then took your pants off and put your penis inside her vagina.
[10] When A was 12 there was a family meeting at a marae. She was alone in the wharenui, where she was feeling unwell with symptoms of her condition. You came into the room, took her underwear off, fondled her genitalia, inserted your finger into her vagina and then raped her.
[11] When A was 12 or 13 you offended against her at a different address. She was sitting on the sofa in the lounge. You took her pants off and lifted her legs. You licked your finger and inserted it into her vagina, before pulling your penis out and penetrating her vagina.
Victim impact statements
[12] I have read victim impact statements from E, L and A.
[13] E tells of the emotional trauma she has suffered. She is anxious, insecure and scared. She became withdrawn, had low self-esteem and struggled to maintain friendships. She has nightmares and flashbacks. She feels threatened by older males, including her own family members. She felt unworthy, damaged, dirty, used and abused. Your offending has also impacted her marriage.
[14] L tells of the psychological harm that has affected her and the way she treats her children. She felt shame and guilt, struggled to have intimate relationships and struggled to trust male family members. Your offending has caused rifts in her family.
[15] A recalls how you preyed upon her when she was isolated and sick. She recalls how you told her not to tell anyone. She has had trouble fitting in, cannot trust people and fears relationships with men. She is insecure about her body and image and suffers from depression and nightmares. She felt neglected by her family, worried about the humiliation if someone found out about your offending and notes the rifts in her family. She speaks of how it took some time for the physical pain you caused her to fade.
Sentencing methodology
[16] Mr Kurei, in sentencing you today, I am first going to decide what the law would require a finite sentence to be if I were to decide that a finite sentence is appropriate. Once I have decided the applicable finite sentence, I will consider whether preventive detention is necessary.
Finite sentence
[17] There is a case called R v AM which is a guideline judgment for most of your offending.1 In that case, the Court of Appeal set out sentencing bands for sexual violation, including where the lead offence is rape. The guidelines in AM only apply to offending occurring after the increase in the maximum penalty for sexual violation to 20 years’ imprisonment.2 Your offending against E took place when the maximum penalty was 14 years. I will therefore discuss the seriousness of offending against L and A first, before taking into account the offending against E, and before taking into account personal factors relevant to you.
[18] Band four offending under AM attracts sentences between 16 and 20 years’ imprisonment. This is the highest band. It applies to very serious sexual offending – offending comprising multiple offences over considerable periods of time, particularly against family members and children. In my view, and I agree with Mr Hines and Ms Gordon on this point, your offending falls within the lower end of
that range.
1 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
2 R v H HC Auckland CRI-2009-092-012741, 4 February 2011 at [31]. R v Jeffries [2012] NZCA
608 at [83]-[85].
[19] There are a number of factors which indicate the seriousness of your offending.
[20] The first of these factors is the level of planning and premeditation that went into your offending. While some of your offending appears to be opportunistic, it is clear to me that you selected victims and opportunities to be alone, particularly with L and A. This included, for example, driving to a different location with L, and violating A when she was sick and alone at the marae. The offending was repeated and escalated in seriousness. There were elements of grooming, as you yourself told Ms Smith.
[21] The second factor is the vulnerability of the victims. L was 11 years old at the time; A was between eight and 13 years old. They were children. Because of this they were particularly vulnerable. Both victims were sleeping on many of the occasions. L was intoxicated on one of the nights you offended against her. A was particularly vulnerable because of her illness.
[22] The third factor is harm to the victims. While there was no serious ongoing physical harm, you have heard of the long-term psychological consequences for the victims. There is no suggestion that you used contraceptives at any time.
[23] But the most serious factor is the fourth factor. It is the scale of the offending. You offended on numerous occasions over a long period of time against two different victims.
[24] The fifth factor is the breach of trust. L was the younger sister of your partner. A was her niece. You lived with both of the victims in their home. They were entitled to feel safe and to trust the adults in that environment. You violated that trust in a very serious way.
[25] In my view, a starting point of 16 years’ imprisonment reflects the overall gravity of this offending.3
3 H (CA123/2012) v R [2012] NZCA 479; W (CA247/2010) v R [2010] NZCA 561; R v Watkins [2015] NZHC 345; R v Gordon [2009] NZCA 145; Roberson v R [2013] NZCA 642; R v Kupa [2014] NZHC 1415; R v Smith [2015] NZHC 1992.
[26] I now have to consider the offending against E. I must increase the starting point to take account of that offending. E was extremely vulnerable. She was only five or six years old. You were a family member and a babysitter. You breached the trust she was entitled to have in you. You raped her twice. You have heard of the ongoing effects the offending has had on her life. On the other hand, you were only
14 at the time of the offending. This is a significant factor. Your lawyer and Ms Gordon agree that a two year increase in your sentence is justified. But, in my view, an increase of 18 months, taking account of the total gravity of your offending, is more appropriate.4
[27] This brings the starting point to 17 years and six months’ imprisonment.
[28] I now look at your personal circumstances to see whether the starting point should be increased or reduced.
[29] You have, of course, relevant previous convictions. In 1994 you indecently assaulted and sexually violated a girl when she was eight or nine. The offending was tellingly similar to the offences for which you are being sentenced today. You were in a relationship with the victim’s mother and were actively involved in the victim’s upbringing. You sexually assaulted her while you were babysitting her. The offending escalated from touching her genitalia to making her masturbate and perform oral sex on you, and rubbing your penis on the outside of her vagina. This offending occurred on a weekly basis. In 1996 you were sentenced to four years’
imprisonment.5 You started offending against L just over a year after you were
released from prison. I must uplift your starting point, and I do so, by a year. This brings the starting point to 18 years and six months’ imprisonment.
[30] Apart from your pleas of guilty, I see nothing in your personal circumstances that would justify a reduction. I do not accept that remorse is a factor in your case. You are, however, entitled to a discount for your early guilty pleas. Your guilty pleas
for the offending against L and A did not come at the earliest opportunity. However,
4 R v Pawa [1978] 2 NZLR 190 (CA); R v Puru [1984] 1 NZLR 248 (CA) at 254; R v Elwin CA
209/93, 10 August 1994; R v P HC Rotorua CRI 2005-063-1213, 9 August 2006; De Reeper v R
[2012] NZCA 617.
5 R v K HC Rotorua S 12/96, 19 March 1996.
you have accepted responsibility for the offending and have spared the victims the ordeal of a trial. You pleaded guilty to the offending against E as early as possible. Putting all that together, I will give you an overall discount of about 20 per cent.
[31] This means that if I were to impose a finite sentence, it would be 14 years and nine months’ imprisonment. A minimum period of imprisonment of about half of that would, in my view, be justified given the seriousness of the offending. I would impose a minimum period of imprisonment of seven years and six months’ imprisonment. I would do this taking into account only your offending against L and A. At the time of your offending against E, the law did not provide for minimum periods of imprisonment.
Preventive Detention
[32] I will now discuss preventive detention.
[33] For the offending against L, you are eligible for a sentence of preventive detention under s 75 of the Criminal Justice Act 1985. It provides that I can sentence you to preventive detention if I am “satisfied that it is expedient for the protection of the public” that you should be detained in custody for a substantial period. For the offending against A, you are eligible for preventive detention under s 87 of the Sentencing Act 2002. This section provides that I can sentence you to preventive detention if I am satisfied that you are likely to commit another qualifying sexual or violent offence if you are released at your finite sentence expiry date. A sentence of preventive detention is not available for the offending against E because you were
under 21 years of age at the time of that offending.6 I can, of course, take the
offending against E into account when I consider preventive detention for the offending against L and A.
[34] Although there are two sections in two statutes at play here, the purpose of prevention detention is the same under both. It is to protect the community from those who pose a significant and ongoing risk to the safety of its members. I do not consider there to be a material difference between the two provisions that apply to
you.7 What matters is whether I am satisfied that you pose such a risk to the community that preventive detention should be imposed.
[35] I first must consider whether there is a pattern of serious offending disclosed by your history. I find that there is. I have already discussed your offending in 1994. It is very similar to the offending here. It involved a prepubescent girl, who was a relative of your partner, exploitation of a relationship of trust and escalation of offending from inappropriate touching to sexual violation. You offended in a comparable manner against L soon after being released from prison. Indeed, the nature of all of your sexual offending for the past 30 years is similar.
[36] I next consider the seriousness of the harm to the community caused by your offending. You have subjected several victims now to sustained and serious abuse. This has affected their lives and will continue to affect their lives. You have also caused distress and divisions within the victims’ families.
[37] I have reports which indicate you have a tendency to commit similar serious sexual offences against young girls in the future. The reports are from a clinical psychologist, Ms Smith, and a consultant forensic psychiatrist, Dr Brunskill.
[38] The overview of the reports is that you present a high or elevated risk of sexual offending against young girls. You recognise that you are attracted to prepubescent girls between 10 and 12 years of age. You are likely to commit offences both opportunistically and in situations where you can groom and engineer situations in which you can offend. You continued to offend even when the victims indicated that they wanted you to stop, and even when the people close to you knew of your offending. You reoffended quickly after being released from prison, and while still undertaking rehabilitative programmes. Your high risk of reoffending is likely to be enduring because you consistently offended over a 25 year period against multiple victims. While you have no apparent mental illness, your likelihood of offending is increased by your issues with alcohol and cannabis abuse, and because you yourself were sexually abused as a child. While you show motivation to undertake treatment, and specialised and comprehensive intervention might help
you, you struggle to engage emotionally with your offending and the harm it causes. You show little empathy or concern for your victims.
[39] It is highly relevant that efforts by you and others to address the causes of your offending have failed. You participated in the Te Piriti Special Treatment Unit while imprisoned. At the end of it, however, you were assessed as being a moderate to high risk for reoffending. That assessment proved accurate. You rapidly returned to offending following discharge from the Unit. Even when you were on parole, receiving psychological treatment in the community and being monitored by probation, you were putting yourself in the position to offend again. This goes directly against an extended supervision order being appropriate for you.
[40] You said that you tried to place your victims in sleeping environments where you would not offend. But you said you could not resist. I note that you have said that you have not offended since 2009, because your eldest daughter reached the same age as your victims, and because your libido has dropped with age. Whether or not this is true, it is easily outweighed by the risk of reoffending I have identified. It is also of concern that empathy for your victims played no part in your decision to stop offending.
[41] I find that a lengthy determinate sentence is not preferable and will not provide adequate protection for society. The availability of extended supervision at the end of your sentence also does not convince me that a determinate sentence is more appropriate, given your tendency to offend within your family network, and your persistent offending even when subject to controls, as I have already said.
[42] I am satisfied that you are likely to commit another qualifying sexual offence, and that a sentence of preventive detention is required. I must also sentence you to a minimum period of imprisonment. This must be a least five years and must be the longer of the minimum period required to reflect the gravity of the offences or the minimum period of imprisonment required for the purposes of the safety of the community in light of your age and the risks you pose to the community’s safety.
imprisonment which I set out earlier. That is seven years and six months’ imprisonment. This takes into account the offending itself, and the factors personal to you, including your guilty pleas. I can impose a longer period if I am satisfied that the risk to the community’s safety justifies it.8 You have heard why you are a risk to the community. You are also only 45 years old. However, in this case, particularly because of the insight that you display into the causes of your offending and the cautious optimism that you might respond to intensive comprehensive treatment, I do not think that the risk to the community clearly outstrips the gravity
of your offending.
[44] Seven years and six months is sufficient time for you to demonstrate whether you are able to change or whether you remain a risk to the community. If the Parole Board considers that you are still at risk at the end of that time, it will not release you. I note that you have expressed willingness to attend treatment in prison to manage your risk of sexual offending in the future. I urge you to do so.
[45] Mr Kurei, preventive detention does not mean that the keys have been thrown away so far as you are concerned. Preventive detention is not a punishment. It is a precaution. If you can change then you will be released. If you cannot change then you will not be released. Your future is in your hands.
Sentence
[46] Mr Kurei, please stand. For each of the charges of sexual violation against L or A, you are sentenced to preventive detention with a minimum period of imprisonment of seven years and six months. For each of the charges of sexual violation against E, you are sentenced to three years’ imprisonment. For each of the charges of indecent assault, you are sentenced to 18 months’ imprisonment. All
sentences are to be served concurrently.
8 R v Reekie CA339/03, 3 August 2004; R v C, above n 7, at [39].
Brewer J
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