R v Owen [2012] NZHC 499 (21 March 2012)

Last Updated: 29 April 2012

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

_1985.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-009-008754 [2012] NZHC 499

REGINA

v

KURT OWEN

Appearances: MAV Raj and T J Mackenzie for Crown

JHM Eaton for Prisoner

Judgment: 21 March 2012

_{SENTENCE OF HON JUSTICE FRENCH}

[1] Mr Owen, following pleas of guilty, you appear for sentence on two counts: (i) assault with intent to commit sexual violation;

(ii) threatening to kill.

The facts of the offending

[2] On 27 July last year you were at a bar with the victim and some other people. You had met the victim once before.

R V OWEN HC CHCH CRI-2011-009-008754 [21 March 2012]

[3] After approximately 1 a.m., the victim called a taxi. It was agreed that you would share the taxi with her and her female friend so as to defray costs.

[4] On the way to their destination, the two women repeatedly asked you where you lived, so they could drop you off. You would not provide an address, and suggested you could come and stay on their couch. The victim vetoed that suggestion, having already told you three times, back at the bar, that she was not going to your place, and you were not coming to stay with her.

[5] When the taxi arrived at the women’s address, you again asked to sleep on the couch, and they again refused. The victim even gave the taxi driver $20 and asked him to take you wherever you wanted to go.

[6] About ten minutes later, however, you returned to the women’s address, banged on the door and asked to stay the night. They reluctantly let you in, and said you could stay in the lounge on a fold-out couch.

[7] You were making a lot of noise, however, so the friend asked the victim to go and tell you to keep quiet. The victim duly went into the lounge and told you go to sleep. However, you stood up and said “You're sleeping with me tonight”. She rejected that overture, but despite this you persisted, repeatedly saying “You're sleeping in my bed”.

[8] Then you turned off the light and pushed her forcibly backwards, and she fell onto the bed. You then knelt over the top of her. She said to you in no uncertain terms that you were to get off, and this was not happening. However, you lowered yourself down on top of her so she was pinned on the bed and could not move. You tried to open her shirt with one hand, so she crossed her arms across her chest to prevent that happening. You then used your forearm to pin her arms to her chest, and tried to kiss her. The victim turned her head to one side, and again told you in no uncertain terms to get off. You attempted then to pull her tights down and she said “Get off me, this is rape.” She repeated this a number of times, but you did not take any notice, saying “Shut the fuck up, bitch.” The victim struggled as hard as she could, but you were strong and heavy on top of her. She could not move, as you had

pinned her arms and legs. You then grabbed her round the throat with one hand and squeezed hard, choking her. She told you she could not breathe, and continued to struggle. You replied, “Just shut the fuck up.”

[9] You continued to choke her, and she told you she would scream, at which point you said “Make one fucking sound and I'll kill you.” She did scream, however, and this alerted other females at the flat, who came running into the room and turned the light on. You were on top of the victim with your pants and underwear pulled down.

[10] When later located by police you declined to comment, saying you had done nothing wrong.

Reports

[11] I have read the victim impact report.

[12] It is clear that this attack has had a profound and damaging effect on the victim, particularly on her emotional wellbeing. She speaks of the terror she felt that night, and how the experience has robbed her of her sense of security and enjoyment of life. She has been diagnosed as suffering from post-traumatic stress disorder, which left her reclusive and depressed for several months. She became fearful and anxious even about leaving her house. There were, of course, physical injuries, bruising and a strained shoulder. Her studies have been disrupted, and she has also suffered financially.

[13] In addition to the victim impact report, I have read the pre-sentence report, the report of two health assessors and the report from a psychologist who has been treating you privately.

[14] The reports tell me you are 24 years of age, intelligent, well educated, a high achiever who excelled at sport. You also come from a loving and stable family.

[15] However, in 2005, when you were still only in the seventh form at school, you raped a female school friend. You performed oral sex on her, made her perform oral sex on you, stuck your fingers up her anus, raped her both vaginally and anally and masturbated in front of her face. A jury found you guilty of those charges, and you were convicted in 2006 of rape and four counts of sexual violation. At the time you steadfastly denied your guilt of any of these offences, and appealed unsuccessfully to both the Court of Appeal and the Supreme Court. You were sentenced to six years’ imprisonment.

[16] Your refusal to acknowledge your guilt was an obstacle to any offence- specific treatment programme. You were, however, otherwise a model prisoner and did attend three treatment sessions where you were taught about the importance of developing an offence map and safety plan.

[17] On your release you at first made good progress, finding a job and achieving well in your university studies. You also underwent some psychological treatment. However, when the release restrictions were relaxed and you went flatting, you started drinking heavily again, alcohol being, in the view of the report writers, a key factor in your offending.

[18] Since the date of these offences at issue today, you have been in custody, having been recalled to serve the balance of the previous sentence, which does not expire until August 2012.

[19] You have expressed deep remorse and shame for what you have done. You have offered to attend a restorative conference with the victim and offered to pay compensation. Those offers have been rejected, but the fact they have been made is not without some significance. You have also expressed motivation to change and address the causes of your offending. To that end, you have voluntarily undergone private psychological treatment funded by your parents. That appears to be going well, and the reports on that are positive.

[20] In the view of the health assessors, you pose a moderate to high risk of further sexual offending. However, they also consider that your level of risk is likely

to reduce provided you engage in an intensive offence-specific treatment programme. As I read the reports, both are optimistic about the chances of treatment being successful, primarily because of your attitude and your new insights. You have, for the first time, admitted that you were guilty of at least one of the offences in 2005, and of course you have admitted the current offences.

[21] Equally, both assessors are clear that if you do not successfully engage in treatment and if you do not address the alcohol problem then apart from getting older, the risk you pose is likely to endure, with all that means for the safety of the community, especially young women.

[22] Mr Eaton has provided me with a number of letters. One of the letters is a letter you have written yourself. In your letter you stress that your remorse is genuine, and that you are determined to serve your sentence in a positive manner.

[23] The other letters are from family members, and an employer. It is clear to me that you enjoy very strong support from your family, even although you have let them down so very badly. You are very fortunate. Not many offenders in this Court have that advantage.

[24] Finally, for completeness in this summary of the various reports and letters, I should mention that in the health assessors’ reports there is reference to charges of sexual offending that were laid against you by another teenage girl. There were two trials, both resulting as I understand it in hung juries. Mr Eaton says that the defence was not consent, but an alibi. I only mention those matters to confirm that I have not taken them into account in my consideration today.

Sentencing analysis

[25] I now turn to explain the sentencing analysis that I have to undertake, the basic methodology, so that you can understand how sentences are arrived at under our law.

[26] First I have to be guided by what are called the purposes and principles of sentencing, and those are set out in the Sentencing Act 2002.

[27] In terms of the purposes of sentencing, there is a need to hold you accountable for the harm you have done, and to promote a sense of responsibility in you. I have to provide for the interests of the victim, and on behalf of the community I must express society’s condemnation of what you have done. I am also required to deter you and others from committing similar offences. There is a requirement also to protect the community and to help you change.

[28] I must also have regard to the principles of sentencing, and in particular in this case the seriousness of the offending, the degree of blameworthiness and the need for my sentence to be consistent with what other Judges have done in similar cases. Importantly, I am also under a duty to impose the least restrictive outcome that is appropriate in the circumstances.

[29] One of the key issues I have to decide today is whether it is appropriate to impose a sentence of preventive detention upon you to protect the public, as the Crown advocates, or whether a fixed term sentence will suffice.

[30] Preventive detention is one of the most serious punishments in our legal system. It is imprisonment without any specific end date. A prisoner’s release is entirely at the discretion of the parole board. Further, even when the prisoner is released, they are subject to parole for the rest of their life.

Finite term sentence

[31] I turn first to consider the sentencing range that would apply for a fixed term sentence, before going on to examine preventive detention.

[32] In applying the principles and purposes of sentencing, I must follow what has been called a two-stage approach. In the first stage I have to identify what you have probably heard the lawyers today call the starting point. That simply means the

sentence that reflects the blameworthiness or degree of culpability of your offending. So that that is the first stage, fixing the starting point.

[33] The second stage is that, having fixed the starting point, I am then required to consider whether there should be any uplift or reduction on account of factors that relate to you personally, as distinct from factors relating to the offending.

The starting point

[34] Taking the assault with intent to commit sexual violation as the lead offence, I identify the aggravating features of that offending as being as follows:

(i) The threat to kill.

(ii) Although not in the pre-meditation category of Keen,[1] I nevertheless consider there was an element of pre-meditation in your offending.

(iii) The effect on the victim, which as I have said has been profound.

(iv) The element of an abuse of trust in the sense that you had been

invited into the victim’s home or address.

[35] In my view, having regard to those aggravating factors and similar cases, an appropriate provisional starting point would be in the vicinity of six years’ imprisonment.

_{[36] So that is stage one, fixing the starting point based on your offending.}

Personal factors

[37] Stage two, the adjustment to that provisional starting point of six years, on account of factors relating to you personally.

[38] Unfortunately, there are two significant aggravating factors relating to you personally, and those are first, your previous convictions, and secondly the fact that this offending occurred while you were still on parole. On account of those factors, I consider an uplift of 18 months would be justified. However, that does need to be reduced by six months to take account of the fact that you have been recalled to prison.

[39] A further reduction is required on account of mitigating factors relating to you personally.

[40] Mr Eaton has identified your early guilty plea, your remorse, and the efforts that you are making to rehabilitate yourself.

[41] The guilty plea was made at the first reasonable opportunity, and has spared the victim the ordeal of having to give evidence.

[42] On the other hand, the Crown case was strong given the presence of the other female flatmates and of course the physical injuries suffered by the victim.

[43] On account of the guilty plea alone, I would have been prepared to give you a discount of only 20 per cent, but having regard to the other factors I have mentioned, I concur with Mr Eaton that 25 per cent is warranted.

[44] That then by my calculations would result in a sentence of imprisonment of five years and three months.

[45] Counsel agree that the imposition of a minimum period of imprisonment or non-parole period is warranted. I also agree with that view. The usual minimum non-parole period of one-third would not be sufficient to achieve the purposes of

accountability, denunciation, deterrence and protection, given the seriousness of this offending and your record.

[46] As to the length of that minimum period of imprisonment, Mr Eaton says 50 per cent; the Crown say more, and seek the maximum of two-thirds.

[47] Having regard to all the circumstances and sentencing principles and purposes, and in particular the availability of treatment, I err on the lighter side and consider that 50 per cent is the appropriate period.

Preventive detention

[48] That then brings me to the question of preventive detention and whether I am satisfied that a term of five years and three months’ imprisonment with a minimum non-parole period of two years and seven months is sufficient to protect the public.

[49] After careful consideration of all the circumstances and the statutory factors, I have come to the view that preventive detention is not justified.

[50] I have reached that view principally because of the fact that you have never received the treatment that you obviously so desperately need, and because the health assessors are optimistic about the chances of success for treatment.

[51] Rest assured, however, Mr Owen, that if you ever offend again in this way, preventive detention will be very much on the cards and you could face the prospect of having to spend the rest of your life in prison. I am sure that you will not let that happen. Please do not.

Sentence

[52] On the offence of assault with intent to commit sexual violation, you are convicted and sentenced to a term of imprisonment of five years and three months. I impose a minimum period of imprisonment of two years and seven months.

[53] On the offence of threatening to kill, you are convicted and sentenced to a concurrent term of imprisonment of 18 months.

First strike warning

[54] I must also give you a warning under the three strikes law. It is a first warning.

[55] Given your conviction for assault with intent to commit sexual violation, you are now subject to the three strikes law. I must give you a warning of the consequences of your committing another serious violence offence. You will be given a written list of these serious violent offences.

[56] If you are convicted of any one or more 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.

[57] If you were to be convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. If a Judge came to the view that it would be manifestly unjust to sentence you to life imprisonment without parole, then that Judge must sentence you to a minimum term of imprisonment.

Suppression

[58] Finally, I order that the name of the victim be suppressed. I make that order on the grounds that she is the victim of a sexual offence and that it would cause real harm were her name or identifying particulars to be published.

Solicitors:

Crown Solicitor’s Office, Christchurch

JHM Eaton, Christchurch

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[1] R v Keen [2010] NZCA 112.