R v Te Kira HC Wellington CRI 2010-032-2211

[2010] NZHC 2223

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-032-2211

THE QUEEN

v

TAMA NUI TE KIRA

Hearing:         10 December 2010

Counsel:         M J Ferrier for Crown

R M Gould for Accused

Sentence:       10 December 2010

SENTENCE OF RONALD YOUNG J

Introduction

[1]       Mr Te Kira you are for sentence on the following charges:

a)        sexual violation by rape;

b)        sexual violation by unlawful sexual connection, six such offences;

c)        attempted sexual violation by rape;

R V TAMA NUI TE KIRA HC WN CRI 2010-032-2211  10 December 2010

d)       indecent assault on a girl under 12;

e)        three counts of indecent assault on a girl between 12 and 16; and f)   indecent assault.

[2]      This is historic sexual offending against five victims, all of whom are related to you.

Summary of Facts

Victim 1

[3]      The victim was born in February 1984.  One evening in 1995 or 96 when she was 11 years old, you were drinking at her house with other relatives.  She was sent to bed.  During the night you came into the room where she was sleeping and rubbed her stomach with your hands.  She woke and pushed you away.  You were drinking at the house again the following evening, and again came into her room.  You started to touch her in the same way, and then got on top of her.  The victim pushed you off and wrapped herself in a blanket before going to sleep.   (Indecent assault female under 12)

[4]      On Christmas day in 2005, when the same victim was aged 22, she was celebrating and drinking with her family, including yourself.   The victim became intoxicated and fell asleep on a couch.  You approached the victim and began kissing her and forcing himself on her.  When the victim woke up you covered her mouth and said “Fuck up no one can hear you, they’re all asleep”.  You forced her hand onto your penis and then forced penetration and had sex with her.  You pulled your penis out and ejaculated on the victim.  (Sexual violation by rape)

[5]      You also forced your penis into her mouth and made her perform oral sex. You pulled her legs apart and performed oral sex on her.   You also admitted to penetrating the victim’s vagina with your finger.  (3 x Sexual violation by unlawful sexual connection)

Victim 2

[6]      The victim was born in October 1985.  From 1993 – 1995 she was about 8 years old.   One night over this period you were babysitting the victim and other young cousins.  During the night when the adults were out, you went to the bedroom where all the cousins were sleeping.  The victim was sleeping in between two female cousins in a bed; with male cousins sleeping on a mattress on the floor.   You approached the bed and pulled her pants and underwear down without waking the cousins.  The victim woke up and you stopped.  When the victim stopped moving, you continued to pull down her pants, spat on your hands, and rubbed the victim’s vagina before inserting your fingers inside her vagina.  (Sexual violation by unlawful sexual connection)

[7]      You then knelt between the victim’s legs and pulled her legs apart.   You unbuckled your belt and attempted to penetrate her vagina with your penis.  When you tried this the victim jumped out of the bed and her cousin woke.   You disappeared.   She was distressed and upset but refused to tell any adult what happened.   (Attempted rape)

[8]      Sometime in 1998-99 when the victim was 14 years old, she left a party she attended and walked to a nearby relative’s house to sleep.  At the house you were already lying on the couch.  She went to the first bedroom and closed the door.  You later entered the bedroom.  You put your hand down her top and rubbed her breasts while she pretended to sleep, hoping you would go away.   Eventually you did. (Indecent assault female under 16)

[9]      The victim was born in June 1984.  Between 1996-97 she was 15 years old and lived at the same address as you.  On at least 5 occasions when the victim was asleep you approached her and inserted your finger into her vagina.  You also groped her during this time.    (Sexual violation by unlawful sexual connection (representative)

Victim 4

[10]   The victim was born in October 1984.   From 1995-96 she was aged approximately 12.   You and others were drinking at the victim’s home.   You encouraged her to drink whiskey, which she did until she felt sick.  At this stage all the other family members were in bed.   The victim, feeling sick, went to the bathroom.  You followed her and attempted to soothe her.  She soon went to bed and fell asleep.  You entered the bedroom, lay next to her, and put both your arms around her waist, rubbing her stomach.   At the same time you moved your groin up and down her leg in a humping motion.  This caused the victim to wake up, and she then ran out of the room and got into bed with her brother who was sleeping in another room.  (Indecent assault female aged 12-16)

[11]     During the same period when you would babysit the victim and her siblings, you would enter her bedroom while she slept and rub your hands all over her body under her clothes, including her breasts and vagina.  This happened on three or four separate occasions.  (Indecent assault female aged 12-16 (representative)

[12]     On another occasion when you entered the victim’s bedroom, you inserted your finger inside her vagina.  (Sexual violation by unlawful sexual connection)

[13]     The victim was born in November 1984.  Between January 1997 and August

1998 she was aged 13 years.  During this time on possibly three occasions you felt the victim’s breasts and vagina through her clothing.  In 1999 this victim committed suicide.  (Indecent assault girl aged 12-16 (representative)

[14]    You approached Police in May 2010 knowing they had commenced an investigation to confess to some of the offending.

[15]     I have read the medical reports regarding your circumstances together with the pre-sentence report and of course I take into account your counsel submissions.

[16]     You are 47 years of age.   You were born with Noonan Syndrome which involves webbing of the neck, cardiac abnormalities, brittle bones and lung disease. This has caused you to lead an inactive life.  Prior to your incarceration you had been living with your mother in the house you were raised in.  As to your employment you have not worked since 1996.   You seem to have a long history of alcohol dependency.

[17]     The psychiatric report records that you were bullied extensively at school due to your unusual facial appearance and short statute.  The psychiatrist accepted that given  your drinking  you  would  be  regarded  as  an  alcoholic  and  that  you  have abnormal liver function tests suggesting significant alcohol abuse.   You have no history of psychiatric problems.  You are of average intellectual ability.

[18]     As far as the pre-sentence report is concerned I note you told the report writer that you could not remember these events and indicated that you may have been intoxicated at the time.

[19]     You do have previous convictions primarily property offences.  You do not have  a  long history of  convictions  none  of  which  involve  any  previous  sexual offending.     I  treat  your  previous  offending  as  irrelevant  for  the  purpose  of sentencing.

a)       you have confessed to the abuse or at least most of the abuse and pleaded guilty to some of the charges almost immediately and to other charges later after negotiations with the Crown.  As a result a trial was avoided and a discount for your guilty plea of 33% is suggested;

b)she stresses that you have expressed sorrow and remorse for your victims and have taken full responsibility;

c)       she  stresses  that  you  do  not  have  any  other  serious  criminal convictions;

d)as to your Noonan Syndrome she says that this condition was a contributing factor to your offending and should result in a discount of your sentencing.

[21]     The Crown submit that the aggravating features relating to the offending include the scale of abuse and the number of victims, the breach of trust and the extent of harm relating to the offending.  The vulnerability of the victims, they say, was high given their age.

[22]     As to personal features the Crown accept the prisoner’s previous convictions are no longer relevant.  They acknowledge the remorse shown by the offender in his frank admissions.   The Crown accept that a relatively generous discount may be appropriate for both the guilty plea and remorse.

[23]     The Crown say, therefore, that a global starting point for all of the offending somewhere between 12 to 15 years is appropriate and some discount for both the guilty plea and remorse is appropriate.

[24]     I have read the victim impact reports.  One is from the mother of the young woman who killed herself.  Less than a year after your sexual abuse of this young woman  she committed  suicide.    Her  mother says  that  you  have destroyed  “my family, my life and that of my children”.

[25]     Another  victim  describes  how  she  felt  suicidal,  angry,  embarrassed  and ashamed at what you had done to her.   Her life deteriorated and she had serious problems with drug abuse. Slowly she has been putting her life back together.

[26]     Still another victim also describes how she turned to alcohol and drugs to block out what had happened to her.

[27]     I wish to stress that this was horrifying sexual abuse of young girls in your family.   Such gross abusive behaviour so often blights young women’s lives both emotional and physical.  So often there is a lifelong effect from this abuse.  These are courageous women who have been prepared to stand up and confront your abuse of them.

[28]     I think the proper approach to sentencing here is to begin with your rape offending.  The rape involved your niece.  You took advantage of her intoxication and there was an element of aggression in your rape.  Other sexual indignities were performed on her.  Further, as a young girl you had also sexually touched her.

[29]     I consider the proper starting point, therefore, to be eight years’ imprisonment for that offending.

[30]     As to the other sexual offending all of the sexual offending was to some degree opportunistic but clearly with some premeditation or planning.   You chose young girls whom you knew and took advantage of opportunities as they presented themselves so there was some although not extensive planning and pre-meditation.

[31]     The victims were all vulnerable.   They were vulnerable for two reasons. Firstly, because they knew you and you were often in positions of authority over them.  And secondly, they were vulnerable because of their age.

[33]     The scale of offending was very wide.  The offending began at about 1993 and continued but with some break in the early 2000’s until 2002.  It involved five victims.  It involved penetrative touching on many occasions.  It did, has I have said, involved a fundamental and serious breach of trust.  In my view a starting point of around about eight years’ imprisonment for this offending is appropriate.   The offending against each of the five girls was separate offending which could justify a cumulative sentence on each.

[34]     I have divided the offending between the rape charge and the other offending. Adding  the  two  start  sentences  of  eight  years  for  each  set  of  offending  totals

16 years.  Assessed overall, however, I consider this is too long a start sentence.  I have decided based on the facts and the aggravating and mitigating features relating to the facts alone that a proper starting point would be 14 years’ imprisonment.

[35]     I accept that to a modest degree your medical disabilities have contributed to your offending in that it has contributed to your inability to form relationships.   I accept that to some degree a sentence of imprisonment will be harder on you given your health and medical condition.   I reduce the starting point, to reflect this, to

13 years’ imprisonment.

[36]     As to a deduction for your plea of guilty and a separate deduction for remorse I accept that a significant reduction for your approach to the police and your guilty pleas which avoided the complainants giving evidence is appropriate.  Some of your guilty pleas were early, some late although after some negotiations with the Crown.

[37]     I also accept that you are remorseful and that to a degree the fact that you went to the police and confessed at least some of this offending emphasises that point.  In those circumstances I consider overall a deduction of 30% is appropriate or a reduction of 52 months resulting in a sentence of eight years, eight months.

[39]     On the rape charge you are sentenced to five years’ imprisonment.   The sentences on each of the other charges are concurrent with each other but cumulative on the five years’ imprisonment.   On the other sexual violation charges and the attempted rape you are sentenced to three years, eight months’ imprisonment; on the indecent assault under 12 years and between 12–16 years, two years’ imprisonment and  on  the  indecent  assault  charge,  one  year  imprisonment.    I repeat  the  total

sentence is eight years and eight months’ imprisonment.

Ronald Young J

Solicitors:

M J Ferrier, Luke Cunningham & Clere, PO Box 10357, Wellington, email:  [email protected]

R M Gould, Blackstone Chambers, PO Box 12 549, Wellington