R v Webster
[2021] NZHC 1016
•7 May 2021
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS, OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
ORDER PROHIBITING PUBLICATION OF REFERENCES TO AND DETAILS OF MATTERS RELATING TO PERSONS CONNECTED TO THE DEFENDANT AT PARAGRAPHS [20] AND [21]
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2018-070-3720
[2021] NZHC 1016
THE QUEEN v
NATHANIEL EJAY PIKITEA WEBSTER
Hearing: 7 May 2021 Counsel:
A Pollett J Suttonfor Crown
T Rickard-Simms for Defendant
Sentence:
7 May 2021
[REDACTED] SENTENCING NOTES OF WHATA J
Solicitors: Crown Solicitors, Tauranga
R v WEBSTER [2021] NZHC 1016 [7 May 2021]
[1] Mr Webster, you appear for sentence on 30 charges of physical and sexual violence against three young women over a period of about 20 years.1 You were found guilty by jury on 28 of those charges; and on the remaining two, you pleaded guilty. Twenty-four of the charges involve acts of serious sexual violation, each of which carry a maximum sentence of 20 years’ imprisonment.2 The Crown has also invited me to hand down a sentence of preventive detention.
[2]My sentence will be in four parts:
(a)first, I will talk about the facts of your offending;
(b)second, I will talk about your personal circumstances, including the risk factors identified by the psychologists who interviewed you;
(c)third, I will fix your sentence; and
(d)finally, I will assess whether you should be subject to a sentence of preventive detention.
1 Eight charges of sexual violation by rape, six of which are representative: Crimes Act 1961, ss 128(1)(a) and 128B. Each charge carries a maximum penalty of 20 years’ imprisonment.
Sixteen charges of sexual violation by unlawful sexual connection, 13 of which are representative: Crimes Act, ss 128(1)(b) and 128B. Each charge carries a maximum penalty of 20 years’ imprisonment.
One charge of kidnapping: Crimes Act, s 209. Maximum penalty of 14 years’ imprisonment.
Two charges of injuring with intent to injure (manual), one of which is a representative charge: Crimes Act, s 189(2). Each charge carries a maximum penalty of five years’ imprisonment.
One representative charge of assault with a weapon: Crimes Act, s 202C. Maximum penalty of five years’ imprisonment.
Two representative charges of male assaults female: Crimes Act, s 194(b). Each charge carries a maximum penalty of two years’ imprisonment.
2 Crimes Act, ss 128(1)(a), 128(b) and 128B.
Suppression
[3] Before I begin, I need to make some preliminary comments about suppression. All names and identifying features of the complainants are suppressed. I have anonymised my references to them accordingly. In addition, all references to other sexual violence towards persons connected to you, Mr Webster, are suppressed. Finally, I extend the interim order in relation to identifying particulars of your offending until I release the written version of these sentencing notes, at which time I will make a final decision as to whether that suppression should be extended.3
Facts
[4] Mr Webster, as the trial judge, I had the benefit of hearing all of the evidence and, like the jury, I am sure that you offended against three victims B, N and S in the ways I will now describe.
[5] You met B around 1996, or the start of 1997, when she was 16 or nearly 17. She was your girlfriend, and initially you were kind to her. Before long, however, you began to abuse her. On one occasion, B had been invited to a party at what was then your family home. You took her to a nearby field of maize where you had already laid out a blanket on the ground. Treating her like a rag doll, you brutally raped her and forced her to have anal sex with you. She was traumatised by this. This offending formed the basis of Charge 1 (sexual violation by rape) and Charge 2 (sexual violation by unlawful sexual connection).
[6] The next set of offending against B took place in a haybarn. This episode of offending involved kidnapping (Charge 3), multiple vaginal rapes (Charge 4) and multiple instances of anal penetration without consent (Charge 5). In summary, you abducted B from her bedroom, put her in the back of your car and took her to a barn where you had built a cell made of haybales. B tried to climb out but could not. Over the next few days, you left her imprisoned and returned, when it suited you, to have vaginal and anal sex without her consent. You did this on multiple occasions. B only escaped because her cries were heard by a farm hand who helped her out.
3 By minute, dated 7 May 2021, I directed that the order lapse.
[7] The next occasion of offending for which you were found guilty took place in a bedroom in your family home. At one stage you were interrupted by your father, but that did not deter you. This offending involved violation of B’s anus and her vagina with a bed leg (Charges 6 and 7). B has suffered life-long injuries because of this.
[8] Finally, in relation to B, on multiple occasions in the period between 29 March 1996 and 28 March 1998, you raped and digitally penetrated B when she was menstruating (Charges 8 and 9), raped her vaginally (Charge 10) and violated her anally (Charge 13), engaged in non-consensual oral sex (Charge 11) and in non- consensual digital penetration (Charge 12).
[9] I now turn to your offending against N, with whom you had a relationship over a 10-year period from 1997 to 2007 and have two children. You met when she was
16. As with B, initially you were kind and gentle with N and there were occasions through this relationship where you enjoyed periods of a normal life. But there were multiple occasions when you were brutally violent with her. Indeed, over the course of your relationship with N, you raped and had non-consensual anal and oral sex with her on multiple occasions at various locations (Charges 14, 15 and 16). You also raped N and non-consensually licked her vagina when she was menstruating on various occasions (Charges 17 and 18). You sexually violated N’s vagina with your fist (Charge 19) and digitally penetrated her vagina and anus with your fingers (Charges 20 and 21).
[10] You also frequently physically assaulted and injured N over the course of your relationship (Charge 25). For example, N gave evidence that she could not even remember how many “hidings” she received at one house you lived at together; and other times, she was kicked, smacked and punched in the head and other parts of her body, sometimes unable to walk. N also gave evidence that, on another occasion, she was put in a sleeper hold until she was knocked out and she was pregnant at the time.
[11] You are also convicted of a representative charge of assault with a weapon, for example, tying a belt around N’s neck and dragging her around the house in front of your children (Charge 23).
[12] Your relationship with the third victim, S, also lasted about 10 years. S gave evidence she was 16 when you met her. You have two children together. This relationship followed the same pattern as the others; a relationship initially marked by kindness and loving, but later characterised by outbursts of brutal violence. That violence included violent vaginal and anal sex at the last address you lived at together (Charges 26 and 27). You also injured S on another occasion by slamming her head into a truck window (Charge 28). You also raped and had non-consensual oral sex with S on multiple occasions over the course of your relationship (Charges 32 and 33).
[13] Finally, you also pleaded guilty4 to two representative charges of male assaults female for assaulting B and S during the course of those relationships, including hitting, punching, choking, kicking—to the head and other places—and dragging by the hair. These assaults often followed arguments or your jealous accusations.
Victim Impact Statements
[14] I also heard statements from each of the victims. B talks of how young she was at the time of the offending, naïve, and not realising you were much older than her. In addition to the physical and other impacts, B says the psychological impacts of the offending have been “enormous”, including struggling to be intimate with her husband, poor body image, low self-worth, nightmares and panic attacks. She said that the offending made her feel like your “… dog to be pulled out to be used and abused at [your] whim”. Even hearing your name is difficult, and she recalls collapsing on one occasion when she saw you, fainting. She turned to alcohol to deal with it. B also says the impact of the Court process has been immense on her children and parents, as well as herself.
[15] N says, “the sexual and physical abuse was horrendous, but it was the emotional abuse that has been the hardest to deal with.” She speaks of how she used to be – happy go lucky – but during the relationship, N says she lost her identity and didn’t know who she was, becoming withdrawn and with low self-esteem. She says your controlling and manipulative behaviour caused her to believe the offending was all her own fault, and that she would lose her kids if she left. It also isolated her from
4 On 23 March 2020, for charges then-numbered Charge 18 (against B) and Charge 40 (against S).
friends and whānau. Because it was her first relationship, and at the beginning she thought you were the love of her life, N says she didn’t know any better. N says that when she found the courage to leave, she initially turned to drugs and alcohol as a coping strategy and didn’t want to talk to anyone about it because she was ashamed and embarrassed.
[16] S says she feels “anxious, hurt[s] to the point of anger, frustrated and mentally unstable at all times” as a result of the offending. She feels isolated and she feels like you are still controlling her every move, she lives in fear of you. As a result of these feelings, S says people have accused her, a solo mother, of being unfit to parent. She fears sleeping because of the nightmares and thoughts of the abuse, and she feels she can never cleanse herself of it. She says she has little whānau support and has also suffered financially from the relationship and that, if not for her children, she feels she would struggle to survive.
Personal circumstances
[17] I turn now to your personal circumstances, Mr Webster. For this purpose, I have the benefit of your pre-sentencing report, a s 27 report5 and two health assessors’ reports.6
[18] You are 43 years of age. You have four children to two of the victims. Your pre-sentencing report records that you are of Ngāti Rehua, and your s 27 report, which is also based on discussions with your mother, identifies whakapapa links to Waitaha and the Ngā Pōtiki iwi. You were raised, in your early years, by your grandparents. But you were returned to live with your parents at a young age, shortly before your grandfather passed away, which was a major loss for you. Your father was a patched gang member and lived a lifestyle characterised by heavy drinking and parties. Your mother struggled to look after you and your seven siblings, and your father used “hidings” to discipline you, which you say you took the brunt of as the eldest child. You regularly changed schools and left school at about the age of 13 or 14 to put food
5 Sentencing Act 2002, s 27.
6 Sentencing Act, s 88.
on the table. You then joined the Mongrel Mob at about the age of 15 and wore their colours for about four or five years.
[19] The s 27 report notes that you lived your whole life seeing, experiencing and being the perpetrator of excessive violence. You saw your father “kick people’s heads in” and uncles smash-up people over; you remember witnessing your uncle viciously beating an aunty until she was unrecognisable, hitting her like she was a man. The report records that you take responsibility for your physical (but not sexual) violence towards your partners, that you are not proud of it, but you came from an environment where it was okay to do that.
[20] The report also refers to trauma suffered by your mother. [Redacted] It notes that this trauma, in combination with abuse and poverty, impaired her ability to make rational choices which had a direct impact on her children, including you.
[21] In your pre-sentencing report you are recorded as stating that you knew about what had happened to your mother and that “you don’t take that from a woman like that” and that you say you have been stitched up by your three victims. You also refer [Redacted]. The report also records you became very emotional at this point.
The health assessors’ reports
[22] You also denied the offending when interviewed by the health assessors, Dr Singh-Pillay and Dr Brunskill.
[23] Dr Singh-Pillay noted that your claims to not being smart and not understanding big words appeared inconsistent with behavioural evidence in the assessment period as you possessed very good vocabulary. Dr Singh-Pillay also notes that you have not completed any relevant treatment outcomes, but that there have been treatment gains in terms of anger management and self-control.
[24] Dr Singh-Pillay observed that your disengagement of your own feelings was developed as a way to cope, is likely to have rendered you emotionally shallow, such that you avoid close and affectionate relationships, enabling you to perform cruel and instrumentally violent sexual acts. It is also noted that your offending appears to be
driven by deviant sexual fantasies, and that overall early attachments, trauma, mistrust of others, cognitive distortions and delusions, lack of insight, as well as failure to manage emotions, played a significant role in your offending. In addition, deviant sexual arousal and preoccupation (the development of which is unclear), sense of entitlement and need for power would have contributed to your continued violent sexual offending over the years.
[25] Dr Singh-Pillay assesses you are well-above average on the Violence Risk Scale: Sexual Offence version (VRS:SO) risk category, and that your assessment suggests your offending is likely driven by both sexual deviant preference and an anti- social orientation, with your risk of reoffending inextricably linked to your denial. Similarly, in terms of the Psychopathy Checklist: Screening Version (PCL:SV), you fall in the high risk of serious offending within five years and very high risk of sexual recidivism. Overall, you are assessed as a high risk of violent offending and a very high risk of sexual violence offending. It is also noted that the victim is most likely to be an intimate partner, that you are likely to use physical force and coercion to gain a sense of control prior to rape. Based on your continued denial of violent sexual offending, Dr Singh-Pillay concludes the likelihood of you genuinely engaging and benefiting from relevant treatment appears low.
[26] Dr Brunskill also concludes that you present with an elevated risk for committing further qualifying sexual offences of a similar nature (ie, a very high risk of sexually violent recidivism). Dr Brunskill identifies particular risk in your denial of any sexual offending, which he identifies may be tied to a pathological ability to compartmentalise, or a pathological ability to hide emotions, motivations and arousals behind a façade. Dr Brunskill notes your denial is despite “having the intellect” to realise you will need to accept your offending to participate in sexual offender treatment programmes.
[27]Dr Brunskill identifies, in particular:
(a)you have a low threshold for discharge of aggression or anger;
(b)you have a lack of remorse. You do not take personal responsibility for your actions but seek to attribute them to external factors;
(c)you have an egocentric outlook; and use psychological defence mechanisms such as denial, as well as a demonstrated tendency toward entitlement, self-justification, obfuscation, intellectualisation and harm minimisation;
(d)you have a strong apparent need to control others, and to manage your own image in a positive light, in contrast to the fact of your convictions; and
(e)you have a demonstrable capacity for vengeance and sadistic cruelty and use all types of aggression instrumentally.
Sentencing Approach
[28] I turn now to fixing your sentence. This involves fixing a starting point for a term of imprisonment for the most serious offending, namely the sexual violations. To do this, I must have regard to any factors of the offending that make it worse or less serious than other sexual offending. I will then uplift this starting point to take into account your other offending to arrive at a starting point overall. I will then assess whether there are any personal factors that mean I should increase or decrease the starting point. Finally, I will fix a sentence for your sexual violation offending. This sentence will apply to the sexual violation by rape charges. I will also state my sentences for the other offending, which will be served concurrently with the lead sentence.
[29] The Crown submits that the starting point for your sexual violation offending should be 19 years’ imprisonment, together with an uplift of two to three years for your other offending. Your counsel accepts your offending falls within the most serious category and suggests a starting point of 18 years’ imprisonment.
[30] I satisfied that an initial starting point of 18 years is appropriate with respect to the eight charges of rape and 16 charges of sexual violation by unlawful sexual
connection.7 That is assessing that offending in totality. In this regard, your sexual violation offending is well within the category of offending that is most serious of its kind, which attracts a starting point of between 16-20 years for rape and 9-18 years for unlawful sexual connection.8 It involved multiple acts of serious violent, degrading and physically traumatising abuse over the span of 20 years against three vulnerable victims. Some of the offending involved high levels of physical brutality, callousness and subjugation including, for example, the violations in the maize, the haybarn, with the bed leg and the offending with a fist. Some of the sexual violation offending was clearly pre-planned, including the maize and haybarn incidents. Your victims were all young women who had become enthralled by you and trusted you. That trust was thoroughly abused. N and S were also much younger than you when the offending occurred. The sexual violence happened so often that your victims lost count of the number of rapes and other violations. Some of the offending was also punitive in character, carried out when you were displeased with the victim or jealous. The final episode of rape and anal penetration of S at the last address had this distinct character. While all of the harm to the victims was significant and lifelong, the effects of the use of a bed leg on B were and remain extreme. B has been left with a disfigured anal area, and still requires ongoing treatment some twenty years later.
[31] For completeness, I have compared the starting point with the starting points for comparable offending in other cases, including R v Gage which attracted a starting point of 17 years for four charges of serious sexual violation by rape, one of which was a representative charge, and three of sexual violation by unlawful connection against five victims9 and R v Bruce, which also involved five victims and 11 charges of sexual violation by rape and four charges of sexual violation by unlawful sexual connection, in which a global starting point of 19 years was adopted.10 Both the volume and the severity of the offending by you is materially worse than the offending in Gage. Although the worst episodes of offending R v Bruce and the present case are similar, both involving the use of objects causing serious physical harm, the offending
7 Above n 1.
8 Falling within “band four” for rape and “band three” for unlawful sexual connection of R v AM
[2010] 2 NZLR 750 (CA) at [108]-[116] and [120]-[124].
9 R v Gage [2013] NZHC 2053.
10 R v Bruce [2021] NZHC 880.
in R v Bruce involved five not three victims. I therefore consider the gravity, scale and range of your offending, Mr Webster, falls between that in R v Gage and R v Bruce.
[32] I have also considered the proper starting point for sentence assuming individual start points for the sexual offending against each of the victims. B’s offending is marked by premeditation, brutality, her vulnerability and the extreme nature of the physical harm done. It falls within the category of offending, which is near to the worst of its kind, attracting a starting point of 14 to 15 years. The offending against N is marked by its length, frequency and scale. It also attracts a starting point of 14 to 15 years. While S’s was less frequent, it was brutal and degrading. Starting points in the range of 13 to 14 years are also available for that offending alone. Collectively, therefore, a starting point of 18 years’ is justified.
[33] In terms of uplift, in R v Bruce and R v Gage, the other violent offending in those cases attracted an uplift of two years each. But, in this case, I consider the kidnapping of B and the relentless violent assaults of all three complainants, as well as the representative charges of male assaults female, attract a larger uplift of three years.
[34] As a consequence of this, a starting point of 21 years for all of the offending is justified.
[35] I am now at the point where I must examine whether there are any personal factors which suggest that there should be an uplift or a reduction in sentence. While you have prior convictions for male assaults female and breach of protection orders, I do not consider your prior convictions warrant a further uplift.
[36] In terms of your personal mitigating circumstances, it is evident to me that after you left the care of your grandparents at around the age of eight, you were regularly exposed to violence to yourself and to others around you, including brutal violence to women. You also gravitated to gangs in your teenage years. The Crown accepts that there may be some nexus between the violent offending and your background but says this cannot extend to the sexual offending. I disagree. While sexual deviance appears to be a contributing factor to your offending, these early life experiences, marked by
violent abuse and deprivation, shaped you. They are experiences which no young child should be subject to. How and to what degree this upbringing affected you is not capable of fine-grained evaluation in this context. But, as Dr Singh-Pillay explained, your disengagement from your own feelings was developed as a coping strategy and has likely made you emotionally shallow so that you avoid close and affectionate relationships, enabling you to perform cruel and violent sexual acts. As Dr Singh-Pillay also explained, a combination of factors contributed to your offending, including early attachments, trauma, mistrust of others, cognitive distortions and delusions, lack of insight, as well as failure to manage emotions, played a significant role in your offending. I am therefore satisfied that there should be some discount to account for the violence, abuse and deprivation suffered by you as a child, which was exacerbated in your teenage years by direct exposure to gang life.
[37] However, your ongoing firm denial of your offending and, indeed, your blaming of the victims in some respects, together with the seriousness of your offending, mean that you cannot receive a further discount for your potential to rehabilitate. This is not because principles of denunciation and deterrence and community protection must prevail, as suggested by the Crown. Those factors assume prominence when fixing the starting point and discounts for genuine prospects of rehabilitation further the goal of community protection. Rather, you are not entitled to a further discount because your prospects of rehabilitation are so low at present, and conversely, your risk to the public is so high, that a cautious approach is needed.
[38] In these circumstances, a discount of 10 per cent is justified. There can be no discount for remorse in relation to the lead charges of sexual violation.
[39] In the result, I would fix your sentence at 18 years and 10 months’ imprisonment for the lead sexual violation offending.
Minimum Period of Imprisonment
[40] The Crown seeks, if I fix a fixed term of imprisonment, a minimum period of imprisonment. Your counsel does not advance a position either way. I am satisfied that a minimum period of imprisonment is plainly necessary to hold you accountable
for the harm you have done, to denounce your conduct, to deter you from further offending and to protect the community from you. If I impose a finite sentence on you therefore, I will impose a minimum period of imprisonment equal to one-half of the finite sentence. That amounts to nine years, five months’ imprisonment.
Preventive detention
[41] For the reasons just mentioned, I consider you are eligible to be considered for preventive detention. Preventive detention is a protective sentence to be imposed if and when necessary.11 I have carefully considered the criteria I must assess in determining that question. They are:12
(a)any pattern of serious offending disclosed by your history;
(b)the seriousness of the harm to the community caused by your offending;
(c)information indicating a tendency to commit serious offences in future;
(d)the absence of, or failure of, efforts by you to address the cause or causes of the offending; and
(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[42] First, it is clear you have a pattern of serious offending disclosed by your history, Mr Webster, and there is no doubt [about] the extreme seriousness of the harm you have caused to the community. I also have before me the two health assessors’ reports which, as I have noted, identify very concerning personal traits and correspondingly very high risk of serious sexual offending against intimate partners, including deviant sexual arousal, cognitive distortion, sense of entitlement, denial, lack of remorse, attribution of cause to external factors and your capacity for vengeance and sadistic cruelty. They say your denial, in particular, appears to be a barrier to any willingness to participate in treatment that may address the causes of
11 R v C [2003] 1 NZLR 30 (CA) at [6].
12 Sentencing Act, s 87(4).
your sexual offending and reduce your risk of future offending. I acknowledge this is first time you have been sentenced for offending of this kind, so you have not had yet the opportunity to address the causes of your sexual offending. That is a factor against imposing a sentence of preventive detention. I also acknowledge that, if you did accept responsibility for your offending, the underlying causative factors, including your emotional detachment, deviance, cognitive distortions and trauma, can be addressed through appropriate rehabilitation. But, even so, the combination of the pattern of your offending, your trenchant denial of it, the very high risk of offending posed by you, mean that I consider preventive detention is necessary to protect the public from you.13
[43] In this regard, unlike Brewer J in Bruce, a sentence circulated by me to counsel in advance of sentencing, I am not satisfied that the proposed finite sentence will provide adequate protection for the community or that the principle of a lengthy determinate sentence is preferable, even with the benefit of the ESO regime. Unaddressed, your clear tendency to manipulate and then to grossly abuse your victims is not something I can be satisfied will be addressed over time, even the lengthy sentence of imprisonment that you must face. On the other hand, if you do take responsibility for your offending, and seek the rehabilitation that you need, earlier release is, and should be, a realistic prospect. As the Crown says, your fate will be in your hands in that respect.
[44] In the result, I am satisfied that a sentence of preventive detention is necessary. I am also satisfied, for the reason already expressed, that a minimum period of imprisonment of nine years and five months is also necessary.
Final sentence
[45]Mr Webster, please stand.
[46] I sentence you to a sentence of preventive detention with a minimum period of imprisonment of nine years and five months.
13 I have corrected what I said at sentencing, namely, “to protect you from the public”.
[47] The sentences attached to the 30 charges of which you have been convicted will be served concurrently with each other, are as follows:
(a)Sexual violation by rape:
Charges 1, 4, 8, 10, 14, 17, 26, 32
— preventive detention with a minimum period of imprisonment of 9 years and five months.
(b)Sexual violation by unlawful sexual connection:
Charges 2, 5, 6, 7, 9, 11, 12, 13, 15, 16, 18, 19, 20, 21, 27, 33
— 15 years’ imprisonment.
(c)Kidnapping:
Charge 3 — six years’ imprisonment.
(d)Assault with a weapon:
Charge 23 — two years’ imprisonment.
(e)Injuring with intent to injure
Charges 25 and 28 — five years’ imprisonment on each charge.
(f)Male assaults female
Formerly Charges 18 and 4014 — one year’s imprisonment on each charge.
14 The charge numbers on all remaining charges were amended after Mr Webster pleaded guilty to the two representative male assaults female charges in March 2020. See above n 3.
[48] I note you have outstanding fines. There is no prospect of you paying them. They are remitted accordingly.
Strike warning
[49] Finally, Mr Webster, because you have been convicted of “serious violent offences” under what is known as the “three strikes’ regime”,15 I must give you a first strike warning.16 You will also be given a written notice with the details of the warning and its consequences.
[50] Mr Webster, if you are convicted of any serious violent offences other than murder committed after this warning and if a judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event, the judge must sentence you to a minimum term of imprisonment.
15 Triggered by Charge 26: Sentencing Act, s 86A.
16 Sentencing Act, s 86B.