R v Kotara [2019] NZDC 15031 (31 July 2019)

Last Updated: 16 July 2021

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html

IN THE DISTRICT COURT AT WELLINGTON I TE KŌTI-Ā-ROHE KI TE WHANGANUI-A-TARA

CRI-2017-085-002914

[2019] NZDC 15031

THE QUEEN

v

DIETER NEHE KOTARA

Hearing:	31 July 2019
Appearances:	S Carter for the Crown S Robinson for the Defendant
Judgment:	31 July 2019

NOTES OF JUDGE B DAVIDSON ON SENTENCING

[1] Mr Kotara, you appear for sentence on related charges of injuring with intent to injure, assault on a female, kidnapping and sexual violation by unlawful sexual connection; there are 2 charges of injuring and 2 charges of assault on a female.

[2] The charges arise from a somewhat bizarre, but nevertheless violent and dangerous incident on the evening of [date deleted] at a boarding house where you lived with your then partner. I will refer to her as [victim 1]. There are 3 victims,

R v DIETER NEHE KOTARA [2019] NZDC 15031 [31 July 2019]

[victim 1], another female [victim 2], who was the partner of another occupant of the boarding house, and a male [victim 3] who came to their rescue. Two of the charges are representative.

[3] You pleaded guilty to most of the charges in August 2018. On the remaining charge, which relates to [victim 3] you pleaded guilty during a trial earlier this year after the charge was downgraded from one of wounding to one of injuring.

[4] On [date deleted], you were staying at a boarding house with your partner [victim 1]. Early in the evening, an unknown male arrived at the address looking for one of the other boarding house occupants, a [name deleted – witness A]. As a result, [witness A] left the address and the visitor left soon after. All of this seemingly caused you to lose control and become extremely angry. You had it in your mind that the visitor had some sexual intentions towards your partner. You then took your anger and revenge out on [victim 2], the partner of the other boarding house occupant. You followed her into a room where you pushed her onto a bed, you then slapped her heavily, began to sit on her, straddling her and hitting her repeatedly. You pulled her from the bed onto her knees and then dragged her by her hair to another room where you threw her on the bed. You then removed her clothing and tied her up with a belt.

[5] When your partner [victim 1] became upset and concerned about what was happening, you tied her up by her hands behind her back. You also slapped her telling her not to tell anyone. This was done to prevent her from raising the alarm or leaving the address. [Victim 2] then tried to escape, but you grabbed her again by the hair and took her towards another room. There, the two victims were tied together. You then slapped [victim 2] on the backside and digitally penetrated her vagina. You left the

room briefly but when you returned, you tied [victim 2] up even more, this time using a shoelace.

[6] Around this time, [witness A], the other occupant of the boarding house, and [victim 3] returned to the address to try and ascertain what had happened. [Victim 3] was armed with a cricket bat. There was a confrontation between you and [victim 3] outside the room. During this confrontation, you used a knife to stab [victim 3]. He received a fairly significant stab wound to his forehead and other cuts.

[7] You fled from the property and were chased. You were eventually caught by [witness A] who quite badly assaulted you. This resulted in you being taken to hospital. You had a blackened and swollen eye and staples were put in a laceration on your head.

[8] I have seen photographs of all of the injuries received by the 3 victims. [Victim 2]’s injuries were quite significant. They included facial bruising and swelling and a possible head injury. Your partner [victim 1] received a bruised eye. I have already mentioned the injuries received by [victim 3].

[9] I have only seen one victim impact report, that provided by [victim 2]. She was, as I have already mentioned, quite badly injured. Since the attack, she has had feeling of anxiety and flashbacks to what had occurred.

[10] You have a moderate list of previous convictions over a 20 year period from 1999 to 2019 but amongst them violence is a recurring theme. You have convictions for assault with intent to injure in 2002, wounding and assault in 2004, and an assault on a female in 2016. I have seen the sentencing notes relating to your last 2 sentencing

occasions. You were on bail at the time of the 2016 offending which involved an assault on your partner [victim 1]; again there were elements of detention associated with that assault.

[11] You are aged 40. Your pre-sentence report sadly is quite poor. It highlights your sense of entitlement, anger, disregard for females including your own partner, your warped and skewed thinking. Other material I have read, including the drug and alcohol assessment and the forensic report, emphasise your substance abuse issues and your fragile mental health.

[12] The psychological report concludes that you are at medium risk of recidivism for offences of violence and sexual offending. It is clear that you will require intensive management while in prison and when you are eventually released.

[13] The author of the psychological report has outlined how he believes this offending came about. It is an important and unusual feature of your sentencing. The author writes as follows:

Mr Kotara described this is motivated by an eye for an eye attitude, fuelled by feeling threatened and angered by the arrival of a man he knew to be a gang member at his address who was looking for an associate of his. This man’s perceived sexualising of Mr Kotara’s partner and his apportioning of blame on his associate whom he had said he had warned about such a circumstance appeared to have been key triggers for the events which unfolded. Mr Kotara did not confront the man whom he perceived to have behaved inappropriately towards his partner but rather waited for that person to leave before exacting revenge on his associate’s partner violently and sexually while holding her against her will. His own partner was also assaulted and held captive but less

seriously based on Mr Kotara primarily being fearful she would report his actions to the police.

[14] The aggravating features of the offending are self-evident. For [victim 2], she was subject to ongoing assaults over an extended period including repeated punching, striking of her face, pulling of her hair and banging of her head against the ground. She received quite serious injuries which I have already described. She was detained for a significant period. She clearly was vulnerable, unable to protect herself and unable to call for help or assistance. Her trust was breached to some degree; after all, she was the partner of a fellow boarding house occupant and could expect to be treated decently by you. The offending has had a significant effect on her and she had the indignity of being sexually violated in front of your partner. The offending, with her in particular, but as a whole carries a strong flavour of revenge; it carries a flavour, it seems to me, of using serious sexual violence as a tool for revenge.

[15] As far as the other two victims are concerned, your partner’s trust in you was abused. She likewise was vulnerable and detained; she likewise suffered actual violence and an associated threat. She received moderately serious injuries. [Victim 3] received a nasty wound to his forehead, an area where far more serious injury can easily result. A weapon was used against him.

[16] You were on bail at the time of this offending. You have previous convictions for violence including an assault conviction where you detained your own partner.

[17] It seems to me that there are really only 3 truly mitigating features.

[18] The first, your pleas of guilty. I will give you a full credit for your pleas of guilty.

[19] Secondly, some discount should be afforded for the beating that you received.

After all, it is what is commonly known as summary justice being meted out against you.

[20] Thirdly, as Mr Robinson emphasises, particularly through the forensic report and the drug and alcohol assessment, there is a glimmer of hope that you are prepared to address the causes of your offending.

[21] The Crown submit that the appropriate starting point for the offending in respect of [victim 2] is imprisonment of at least 7½ years, possibly more. While acknowledging that the sexual violation in itself was fairly brief, Ms Carter for the Crown emphasises its association with the detention and the violence. The Crown submit there should then be an uplift for the assault on your partner [victim 1] of some 12 months, and an uplift for the injuring of [victim 3] of some 2 years. The Crown note that charge involves the actual use of a weapon resulting in a nasty stab wound. All of that would lead to, in the Crown’s submission, an overall starting point of around 10½ years, possibly more.

[22] Adjusting that for totality considerations, the Crown submit the true starting point should sit at around 8½ to 9½ years with an uplift for your prior convictions and your offending while on bail. The Crown seek the minimum period of imprisonment of 50% of the end sentence given the serious nature of the totality of the offending.

[23] On your behalf, Mr Kotara, it is submitted that the offending can be perhaps better categorised as impulsive and irrational, perhaps explained by your substance abuse, your mental health issues and your warped thinking. Mr Robinson submits that the actual violence inflicted is best described in the moderate range, involving manual assaults on 2 of the victims. Mr Robinson emphasises that a weapon was only used in relation to [victim 3] and then only in circumstances where you were confronted with him armed with a bat.

[24] He urges me not to over value or double count some of the features of the offending.

[25] It seems implicit, in his submission, that the offending sits within the mid-range of band 2 of R v AM.1 with a starting point of something around 7 years’ imprisonment. He says that the offending in respect of your partner and [victim 3] should be treated by me in a concurrent fashion. He accepts a small uplift for your previous convictions and offending while on bail might be warranted and he urges me not to impose a minimum period of imprisonment, submitting that the glimmer of hope in the reports to which I have referred should be matters left for the Parole Board’s consideration.

[26] Mr Kotara, although the offending against [victim 2] is the most serious and should set the benchmark for your sentencing, it is important to not lose sight of the criminality of the incident as a whole. As the Crown note, and indeed as you confirmed to the probation officer and the psychologist, this was a bizarre revenge-type incident where you essentially detained 2 victims, one your partner,

1 R v AM [2010] NZCA 114.

badly assaulting both, injuring the other by repeated punching and then digitally penetrating her, and stabbing a third victim who came to their assistance. In my view, it is a clear case where the sexual offending is more about power, control and revenge.

[27] In and of itself, the most serious charge, the sexual violation by unlawful sexual connection, might attract a starting point around 4 to 5 years, but in combination with the detention, the assaults, the threats, the degree of premeditation and revenge, a starting point of 7 years is entirely justified. It is the starting point for the offending in respect of [victim 2] which I adopt. Necessarily there must be an uplift for the other offending against your partner [victim 1]. I set that at around one year; and in respect of the male [victim 3] which I set at around 18 months. That reflects that there may just be some element of excessive self-defence in your response to [victim 3]. He, of course, was entitled to use force to rescue your victims.

[28] All of that would lead to an overall starting point of around 9½ years. Standing back from that and reflecting on your overall culpability, the starting point will be one of 9 years’ imprisonment. There needs to be an uplift to mark your previous convictions and offending while on bail. The reality is that you were on bail for assaulting your partner, an assault which included aspects of detention as well. The uplift for that is some 6 months.

[29] I mentioned before that there were really only 3 areas of sentencing discount available to you. The first concerns the fact that you were the victim of a fairly significant assault as a result. I set the discount for that at around 6 months.

[30] I give you a further discount of some 3 months recognising the glimmer of hope in the reports which I have read.

[31] There should then be a full discount for your pleas of guilty. All of that would lead to an end sentence of 6 years and 8 months’ imprisonment.

[32] The sentence will be imposed in the following way.

[33] Mr Kotara, on the charge of sexual violation by unlawful sexual connection, you are sentenced to imprisonment for 6 years and 8 months.

[34] On the 2 charges of injuring, imprisonment for 2 years.

[35] On the charge of kidnapping, imprisonment for 2½ years.

[36] On each of the 2 charges of assault on a female, imprisonment for one year.

[37] The imprisonment sentences are all concurrent. The actual sentence imposed is 6 years and 8 months’ imprisonment.

[38] I impose a minimum period of imprisonment of 3 years and 4 months on the charge of sexual violation by unlawful sexual connection. In my view, the imposition of a minimum period of imprisonment is warranted in your particular case, most importantly because of the concerning feature of the use of sexual violence as a tool of revenge which emerges in the way I hope I have described.

B Davidson

District Court Judge