R v Te Kira
[2018] NZHC 2086
•15 August 2018
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203
OF THE CRIMINAL PROCEDURE ACT 2011. SEE
THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CRI 2017-096-1614 [2018] NZHC 2086
THE QUEEN
v
STEVEN TE KIRA
Hearing: 15 August 2018 Counsel:
K Feltham for Crown
V C Nisbet for DefendantSentence:
15 August 2018
SENTENCE OF ELLIS J
[1] Steven Te Kira, you appear for sentence today in relation to seven charges:
(a) three charges of sexual violation by unlawful sexual connection and two charges of sexual violation by rape. The maximum penalty for these charges is 20 years’ imprisonment;1
(b)you also appear for sentence today on one charge of male assaults female. The maximum penalty is two years’ imprisonment;2 and
1 Crimes Act 1961, s 128(1)(a) and (b) and s 128B.
2 Section 194(b).
R v TE KIRA [2018] NZHC 2086 [15 August 2018]
(c) one charge of threatening to kill. The maximum penalty for which is seven years’ imprisonment.3
[2] You pleaded not guilty to all charges but you were convicted by a jury on
15 June 2018, after a four-day trial. I gave you a second strike warning that day. A second strike means that any finite sentence I might impose on you must be served without parole. It also means that you have a chance of getting parole earlier if you are sentenced to preventive detention.
[3] The main issue for me to decide in sentencing you today is whether I should impose a sentence of preventive detention, as the Crown asks me to do. Before I get to that point, though, there are quite a lot of things I need to talk about. I start with the offending itself. I will try and confine my description to just the relevant detail. The detail that the evidence at your trial proved.
Your offending
[4] All your offending took place over a single morning on 5 May 2017. Your flatmate had left your flat to attend a course at the local Polytech. He left his girlfriend, T, in his bed at the flat. You arranged your own bed by placing blankets and pillows in one corner. You prepared a bucket of hot water containing some kind of cleaning product, put two flannels into the bucket and put it next to your bed. And you moved a one-metre high bookshelf into a position where it blocked the hallway leading to the door, the only entrance to the property.
[5] At approximately 8:30 am, you went into the bedroom where T was and without warning, jumped on top of her and grabbed her by the throat. You began strangling her, saying “Why are you being a bitch in my house?”. You placed both hands around her throat and said, “This is the day you are going to die”. T tried to get your hands away from her throat. She was terrified, gasping and asking you to please
let go.
3 Section 306(1)(a).
[6] Then you carried T to your bedroom. She could see how you had placed the bookcase to block any escape from the flat. Then you raped her. During the rape, you repeatedly asked her why she was “being a bitch in [your] house”. After the rape, you took a flannel from the bucket and washed around her genital area. She tried to get up, but you pushed her back down. You wrapped the flannel around your index finger and pushed it inside her to try and clean away the traces of semen. The evidence at trial was that after your conviction for rape in 2001 you had given the Police a DNA sample. So, the inference to be drawn was that the washing was about trying to get rid of this evidence.
[7] T asked to use the bathroom and you let her. You accompanied her to the bathroom and while there you lifted her onto the toilet seat and performed oral sex on her. You forced her to kiss you. You made her return to your bedroom where you again performed oral sex on her. You asked her if she liked it and she said she did not. But then you raped her again. And again, you washed her genital area with the flannel and wrapped it around your finger and “cleaned” her inside. You started doing martial arts kicks at the wardrobe and talking about T leaving her boyfriend to be with you. You let her get dressed. You moved the bookshelf back to its usual place. T asked if she could leave, and you told her not to tell anyone.
[8] T left the flat and drove away in her car, immediately texting her boyfriend and Z for help. She drove straight to the Polytech and met her boyfriend there on the street. Z arrived. Ambulance and police were called.
[9] A medical examination later that day revealed injuries to T’s neck consistent with strangulation. She had other injuries that were consistent with her account of what had happened. The doctor also noted that her vaginal canal was filled with a cloudy watery solution.
[10] When you were questioned by police later that day, you more or less accepted that the sexual activity described by T had occurred but that it was she who had violated you. That is still what you say happened. You insisted that she was the dominant one and you were at her mercy. You could not explain the injuries to her neck, and denied strangling her. You also denied the washing and said that she must
have done that herself. You later gave an evidential video interview which was played to the jury at the trial in which you repeated all those things. But the jury’s verdicts show that they did not believe you. They believed T.
Victim impact statements
[11] Now this morning, T and Z have told the Court about the dreadful effect on them of what you did that day. I cannot say it better and I will not try. I suspect you were not really listening because you have somehow still persuaded yourself that what they say is a lie and that you are the real victim here. I am going to come back to that later. But what I do want to say about T now is that in my nine years as a Judge I have never ever seen an evidential statement like the one she gave to the police about what happened. No-one who saw and listened to that really remarkable statement could have had any doubt that every word of it was true. And I also want to say to you, T, T, that you should be very proud of yourself for that. You can get over this and I hope very much that you will.
Your personal circumstances
[12] Now Mr Te Kira I need to say something about you, personally.
[13] You are 45 years old. You have over 20 prior convictions. These include a number convictions for serious sexual offending. You were convicted in 1992 on two charges of sexual violation by rape and were sentenced to three years and nine months’ imprisonment. And in 2001, you were convicted on two charges of sexual violation by unlawful sexual connection and one charge of sexual violation by rape. For these offences, you received a sentence of nine years’ imprisonment. In 2014, you were convicted on two charges of indecent assault, one against a girl aged between 12 and
16. For this offending, you received six months’ supervision with special conditions,
130 hours of community work and a first strike warning.4
4 Sentencing Act 2002, s 86B.
[14] You also have a number of other convictions spanning nearly 30 years. These include charges of assault, breaching periodic detention, breaching parole conditions, contravening a protection order and possessing an offensive weapon. But it is the seven previous convictions for sexual offending that are the most relevant to the sentence that I am required to impose today.
[15] I have also read the Probation Officer’s report about you and the two health assessors’ reports that were prepared to help me decide what is the right sentence today. I will come back to those two reports in a bit more detail later. I have read what you have told the report writers about your childhood which you report was not all together easy, although you say you did well at school and were good at sport. You no longer have any real contact with your parents.
[16] The potentially significant thing about your early life, though, is the very serious car accident you had when you were 14. You suffered a serious injury to the left side of your brain. You were unconscious for three weeks and you had to relearn how to eat, walk and speak. You also say it marked the end of a promising sporting career and to your family’s hopes and dreams for you. The accident has also left you with some ongoing medical issues. Although the actual medical records relating to your injuries are not available I do accept what you told the report writers about that.
[17] The one thing that troubles me about all of this is the possibility that your brain injury may well have played a part in your offending and, more particularly in the way that you have processed it afterwards – your continued denial of all your offending – which I confess I find completely mystifying. But because you have refused to engage with the report writers about most matters they have really not been able to reach any reasoned or useful conclusions and it is simply impossible for me to conclude that there is a connection. I can only record that Mr Nisbet has consistently expressed concern about your mental state. You were, however, found to be fit to plead and to stand trial.
Sentencing
[18] So, with that I turn to the sentencing itself. As I said earlier, Ms Feltham wants me to sentence you to preventive detention because of the ongoing risk she says you pose. In order to decide whether that is the right sentence there are a number of things I have to consider. The first of these things is what your sentence would be if I do not sentence you to preventive detention.
Starting point
[19] In terms of the starting point I treat the sexual violation charges as the lead offences. I do not deal with them individually; it is their combination, and the particular features of each that inform the starting point.5 There are a number of things that make the offending particularly serious. The planning and premeditation involving the moving the bookcase, preparing your room and the bucket of water. You also began your attack when T was particularly vulnerable – asleep or sleepy and in bed. She is much, much smaller than you. You stopped her resisting by threatening to kill her, and strangling her. You made sure she could not leave or get away for quite some period of time. Then there were repeated violations. And the final degradation involved in your washing her afterwards. 6
[20] In my assessment, all these matters would warrant a starting point of 13 years’
imprisonment on the lead charges.
[21] Once that point is reached I need to think about the number, seriousness, date and nature of your previous convictions.7 Of relevance are your five previous convictions for sexual violation and the two for indecent assault. These convictions
would usually warrant an increase in the starting point.
5 In terms of the aggravating factors regarded as relevant in R v AM [2010] NZCA 114, [2010]
2 NZLR 750.
6 In AM terms, I consider your offending lies at the lower end of the third of the rape bands: [105]–[107].
7 Sentencing Act, s 9(1)(j).
[22] As I said earlier, you have now had your second strike. So, you would be required to serve the entirety of any finite sentence without parole. In my view, this does count against any significant uplift for your convictions.8 In my view, an increase of six months’ imprisonment would nonetheless be appropriate.
[23] There is nothing in the material before the Court of a positive or mitigating kind that would appear to warrant a discount from that 13 and a half year starting point. Although there may be some kind of connection between your serious head injury and your offending, my hands have been tied, really, by the difficulties I talked about earlier and your refusal to engage properly with any of the report writers.
End point: finite sentence
[24] So, if I were to impose a finite sentence it would be one of 13 and a half years’ imprisonment. As I have already said the three strikes law means that you would be required to serve the whole of this sentence without parole.
[25] Had the three strikes law not applied I would have ordered a minimum non-parole period of two thirds of that sentence, namely nine years’ imprisonment.9 A minimum period in that order would have been necessary to deter and denounce your offending and to protect the community.
[26] But now I must consider whether to sentence you to 13 and a half years’
imprisonment or to make an order for preventive detention.
Preventive detention?
[27] A sentence of preventive detention is aimed at protecting the community from
“those who pose a significant and ongoing risk to the safety of its members”.10
[28] Three conditions need to be satisfied to be eligible for such a sentence. There is no doubt that the first two conditions are met here. You have been convicted of a
qualifying sexual offence and you were over the age of 18 when you committed it.
8 Wipa v R [2018] NZCA 219.
9 Sentencing Act, s 86C(5).
10 Section 87(1).
The third requirement is that I be satisfied that you are likely to commit another qualifying sexual or violent offence if you are released at the expiry date of the finite sentence that I would otherwise impose.11 There are five things I must consider when assessing that risk.12 I also have the reports of the two health assessors – Dr McMinn, a psychiatrist, and Mr Vasbenter, a registered clinical psychologist – to help me.
A pattern of serious offending?
[29] The first of the five things I must consider is whether there is a pattern of serious offending. As I said earlier you have five previous convictions for sexual violation and there can be no doubt that there is a pattern here. More widely, your sexual offending spans 26 years and involves five different women. Two of the women were entirely unknown to you. Two were known to you indirectly. One was your former domestic partner of nine years with whom you have three children. There are particular similarities between your present offending and the offending against her, which meant that the evidence of that offending formed part of the evidence at your recent trial. As with the offending against T you tried to say that it was your partner who had been the aggressor and it was she who had instigated the sexual activity. In that case there were also repeated violations over a protracted period and in that case, you had pushed the complainant’s face into a pillow so she could not breathe.
What is the seriousness of harm to community caused by your offending?
[30] The second thing I must think about is the seriousness of the harm you have caused to the community by your offending. You have on three occasions been convicted of multiple counts of the most serious sexual offences known to New Zealand’s criminal law. Self-evidently, your 10 convictions for sexual violation against three different women have caused significant and ongoing harm. I think T’s victim impact statement that she read today explains very clearly the harm your offending has caused her daughter, herself and their whanau. There is not just the physical and emotional cost but a real and ongoing financial cost too. Your offending
has affected T’s ability to work, to contribute to society and to be self-sufficient. That
11 Section 87(2).
12 Section 87(4).
is undoubtedly to her great detriment but it’s also a real loss to society, although it is a loss that I hope will eventually be remedied. But the simple point is to hurt, to violate, any woman in the way you did hurts all women and it seriously damages the wider community as well.
Do you demonstrate a tendency to commit serious offences in the future?
[31] The third matter to consider relates to risk and it is here that the two health assessors’ reports come in.
[32] Mr Vasbenter noted that your own sexual development was likely to have been influenced by abuse, resulting in significant distortions about sexual behaviour. He said you have developed beliefs supportive of the use of violence to control others over whom you appear to have a strong sense of sexual entitlement. On the basis of the risk assessment tools he used, Mr Vasbenter concluded that you present a high risk of re-offending sexually. His opinion is that such offending is most likely to be against an adult woman whom you believe you are entitled to use to satisfy your sexual desires. His view is that any further such sexual assault would likely be severe, prolonged and include violence and threats to kill or harm the victim.
[33] Although, like many psychiatrists, Dr McMinn was reluctant to predict the likelihood of reoffending, he noted that you presented with repeated episodes of sexual violence and, quote, “with a remarkable denial of responsibility running as a persistent theme throughout”. Particular risk factors of concern to him were your use of physical coercion, your deficits of self-awareness, substance abuse, the effects of childhood abuse, poor social adjustment and previous problems with treatment and supervision. He noted that past persistence and frequency of sexual violence is one of the factors most reliably associated with recidivist sexual violence. He said your “extreme minimisation or denial of sexual violence” contributed to your risk of reoffending. He concluded that if you were released without supervision or rehabilitation “it would be reasonable to expect [you] to commit further qualifying offences”.
[34] On the basis of these reports I am satisfied that you pose a high risk of committing serious offences in the future.
[35] The fourth thing I must consider is any efforts you have made to address the cause of your offending. The obvious problem here is that you have never admitted any of it. Mr Vasbenter notes that you not only still deny all of the present offending but all of the historic sexual offending. You say that the “system is corrupt” and that racial discrimination is to blame for all of your convictions. You also denied the present offending to the writer of your pre-sentence report, saying that you were “shocked” at the guilty verdicts. You similarly told Dr McMinn that T “sexually manipulated” you and sought for you to be charged. I am afraid all of that is just complete nonsense, Mr Te Kira, even if you are presently unable to see it.
[36] Mr Vasbenter noted that you have previously been offered treatment to address the risks of re-offending and that you attended 16 treatment sessions between May and October 2006. But because you declined to consent to Mr Vasbenter reviewing the notes relating to those treatments, he was unable to comment further. However, he said that your categorical denial of the sexual offending means you were and are not psychologically ready to address the causes of it. That is really self-evident. And it also goes without saying that your most recent convictions show that any treatment you have received to date has not been sufficient at least in the longer term.
[37] Contrary to Mr Vasbenter’s understanding, you told Dr McMinn that you had never had any rehabilitation for sexual offending, saying it was not available. To him you expressed no interest in any such rehabilitation or desire to address the causes of your offending and you said that when speaking with the pre-sentence report writer and also, I think you expressed no such desire during your conversations with
Mr Vasbenter or Dr McMinn. Although Mr Nisbet told me this morning that you now say you would accept treatment I think you’re continuing and complete denial of any and all offending still paints a very bleak picture in terms of future risk.
[38] The last thing I must consider is whether a 13 and a half year sentence will provide adequate protection for society. For the reasons, I have just outlined I do not. Notwithstanding your denials, you have been committing serious sexual offences for a period of 26 years. Neither the passage of time nor lengthy imprisonment and rehabilitative courses have stopped your re-offending. You necessarily (in light of your denials) display a complete lack of empathy for any of the women you have hurt so very seriously. Indeed, you continue to say you are the victim in all of this. And lastly, as Ms Feltham said, when you were sentenced for three charges of sexual violation in 2001, the Crown sought preventive detention, but it was not ordered. So, you must have been well aware that such a sentence was on the cards if you reoffended.
[39] For all these reasons, I am satisfied that even if a finite sentence was imposed and served (as it would be required to be) without parole, it would be inadequate to protect the community from you. As things presently stand, there is no suggestion that you have any motivation to get better. Without that motivation, there seems little hope of changed behaviours and, so, a high likelihood of your committing serious sexual offences in the future. I agree with Ms Feltham that the possibility of an ESO on release from a finite sentence would not adequately address the risks you pose.
[40] The cases say that a sentence of preventive detention can operate to motivate reform in circumstances where the offending is denied.13 And as I said earlier this morning, a sentence of preventive detention will actually give you the opportunity – if you choose to take it – that is to confront and address what you’ve done. It gives you that opportunity to be released earlier from prison than the finite sentence I would otherwise give. So, preventive detention will be the sentence here. In light of the gravity of your offending and the risks you pose to the safety of the community a
minimum term of imprisonment of two thirds is necessary.
13 R v Matete CA100/06, 17 October 2006.
Final sentence
[41] So, Mr Te Kira, if you could please stand now.
[42] On the charge of male assaults female, I sentence you to one year’ imprisonment. On the charge of threatening to kill I sentence you to one year’ imprisonment. On each of the charges of sexual violation by rape and sexual violation by unlawful sexual connection, I sentence you to preventive detention with a minimum period of imprisonment of nine years. All sentences to be served concurrently.
[43] Please stand down.
Rebecca Ellis J
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