R v Kupa [2014] NZHC 1415 (20 June 2014)

Last Updated: 4 July 2014

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2013-088-000694 [2014] NZHC 1415

THE QUEEN

v

_{TAITE HEMI KUPA}

Hearing:	20 June 2014
Counsel:	NJ Dore and DB Stevens for the Crown SK Ellis for the Defendant
Judgment:	20 June 2014

_{SENTENCING NOTES OF ASHER J}

Solicitors/Counsel:

Crown Solicitor, Whangarei.

SK Ellis, Whangarei.

R v KUPA [2014] NZHC 1415 [20 June 2014]

Introduction

[1] Mr Kupa, you appear today for sentencing having been found guilty on 21 counts involving offending against young children. The counts on which you have been convicted are three rape counts, which carry a maximum term of 20 years’ imprisonment, six unlawful sexual connection counts which carry a maximum sentence of 20 years’ imprisonment, one attempted rape which carries a maximum term of 10 years’ imprisonment, and one attempted unlawful sexual connection which carries a maximum term of 10 years’ imprisonment. These counts are what I will refer to as the sex charges. There are two victims of those charges.

[2] There is also a second group of charges which relate to different offending in terms of its nature and seriousness. These are nine counts of assault on a child and one count of assault on a female.

[3] The charges arose out of your position as an approved Child, Youth and Family caregiver. You were allowed to have up to six children, boys and girls, stay in your care. The children you received to live with you and your wife were children on temporary placement who were unable to stay with their own family.

Facts – assaults

[4] The period of offending covers a relatively short timeframe. The assault counts covered the period from 3 August 2011 to 1 February 2013, and the sex counts the period between 1 October 2012 to 13 February 2013. I will refer first to the assaults and then to the sex offending.

[5] There were eight victims of the assaults, two of whom are also the victims of the sex charges. The assault counts consisted of you kicking children in the bottom, or on one occasion to the upper leg, or tweaking or pulling their ears. Having heard the evidence it is my view that they were spontaneous reactions to particular events when the children were being naughty and you felt you needed to make some sort of disciplinary statement. There were other events referred to in the course of evidence including wetting a child’s bed and holding a child up but these were not the subject of charges, and I put them to one side for sentencing purposes.

[6] The kicks to the bottom were not severe in the sense that they did not cause injury or the make children fall over or hit other objects, save for one occasion of bruising to the leg of BT. The pulling of the ears also did not cause injury or any long term effects. My general perception, having heard the evidence, is that you were trying to do something which made an impression on a child and humiliated the child, rather than to actually hurt the child. I will return to how gravely these events should be considered for sentencing purposes a little later.

Facts – sexual offending

[7] In relation to the sexual offending, there were two victims. As I have said, both of those victims, AS and BT, had been subjected to a minor assault of the type I have described by you. However, the sex offending was of a totally different character.

[8] There were three incidents relating to AS. The first was in her bedroom when she was lying in bed asleep. You came in and lay down with her. There are two convictions arising out of this incident. First, you raped her, and then you put your penis in her mouth. The second incident was also in her bedroom. Once again you came into her bed when she was asleep. You attempted to rape her and you placed your penis in her mouth. The third occasion was in a tent which was erected outside the house. AS and BT were both in the tent. You got into the tent with them. You attempted to put your penis in AS’s anus, and you put your fingers in her genitalia. So there was a total of six convictions in relation to your offending against AS.

[9] In relation to BT, there were three incidents. The first incident was in her bedroom. You came in when she was in bed asleep and you raped her. The second occasion was in the tent. You came in and put your fingers in her genitalia. You raped her and you put your penis in her mouth. The final occasion was in Kaitaia when BT went with you to stay in a house. While BT was asleep in the lounge, you were found guilty of putting your penis in her mouth.

[10] In relation to these two categories of offending of assault and sexual violation, I have victim impact statements, some of which have been read out in court. These have included statements from two mothers.

[11] In relation to the assaults, the victim impact statements record that the children were seriously affected by what you did. It made them nervous, scared, angry and sad.

[12] In relation to the sex offending, the victim impact statements show as can be entirely expected the most serious impacts. AS and BT both spoke with dignity and emotion about how they carry with them every day the effects of what you did and how it affects their attitudes to the people, boys and girls, men and women, whom they associate with on a daily basis. I can only say that there can be no doubt that the effects will remain with them for the rest of their lives. Words are inadequate to summarise the severe consequences that they must live with.

[13] I have had submissions from both the Crown and defence. I thank them both. Their submissions which were measured and responsible. In the end, in oral submissions, it became clear that the differences between them were not great, although there are some real differences.

[14] The Crown suggested a starting point in the vicinity of 16 years. The Crown acknowledged that some discount for good character was appropriate. It asked for a specific uplift or cumulative sentence in relation to the assaults, while accepting they were not of the most serious type.

[15] Ms Ellis for the defendant submitted a starting point in the vicinity of 14 years. She suggested there should be no specific uplift in relation to the assaults. She emphasised your good character and referred to an end sentence in the area of 14 to 16 years’ imprisonment.

Starting point for the assaults

[16] I am going to deal with the less serious charges first. These are the assault counts. As Ms Ellis in her submissions to me pointed out, until the recent changes in the law your conduct towards the children in terms of your kicking them in the bottom and pulling their ears would not have warranted Police intervention. However, as she rightly acknowledged, we have a new regime now and the public expectations of what is acceptable behaviour in disciplining children has changed.

The jury had to assess whether your conduct was reasonable and found beyond reasonable doubt that it was not.

[17] I have been referred to a number of cases. It is not appropriate for me to spend time going through caselaw when I sentence you, but I do note the Court of Appeal decision S v R which involved much more serious offending than yours, where the children were hit around the face and body with a belt, a starting point of

18 months’ imprisonment was considered appropriate and a final sentence of nine months’ home detention was the outcome.¹ At the other end of the spectrum I note a decision of Clifford J Hendry v Police where the end sentence was 100 hours community work with six months supervision.²

[18] Your assault offending was not of a high order of culpability in that you did not attack the face or other vulnerable parts of the body, you did not use any implements and you did not seriously hurt the children. However, you did humiliate them and put them through ordeals that they will not forget.

[19] Ordinarily a sentence of imprisonment would not be contemplated on these counts, given other factors including your good character. However, I do not have the option of other sentences. I agree with Ms Ellis that if it were not for the fact that you must go to prison on the sex counts, the likely sentence would be community work, or at worst community detention. However, I must fix a notional sentence for your offending. I fix that at six months’ imprisonment, but that is not going to be the end result in sentencing terms. It is a notional figure which I use as a starting point before considering personal factors and totality.

Starting point for sex offending

[20] I now turn to the real sentencing exercise that must be undertaken here and which is why there has been a trial and a sentencing in the High Court. This is your

_{sex offending.}

¹ _{S v R [2011] NZCA 178.}

² Hendry v Police [2012] NZHC 3581.

[21] In relation to that sort of offending there is a Court of Appeal decision which sets out what is known as a sentencing range or tariff for sex offending. This case operates as a guiding judgment to sentencing Judges. It is called R v AM and it characterises sex offending involving penetration into four categories of ascending seriousness, called “bands”.³

[22] Your offending clearly falls into one of the two most serious bands, being rape band three and band four. Rape band three involves sentencing of 12 to 18 years’ imprisonment, and rape band four sentencing of 16 to 20 years’ imprisonment.

[23] Sentencing is not something done mathematically or by strictly following criteria, but in finding a starting point I must look at the features that I can identify that are relevant to your culpability, your blameworthiness, for what you did.

[24] Ms Dore for the Crown suggests that you are particularly blameworthy in five ways. She says that your offending involved five separate incidents and two children, and the various circumstances featured offending on a significant scale, vulnerable victims, planning and premeditation, harm to the victims and breach of trust. She submits there are five aggravating features.

[25] I consider that there is a degree of overlap in her identification of those five features, while I accept that they all do exist. I think it is more appropriate to focus on three particular aggravating features of your offending.

[26] The first is its scale. There are two victims, AS and BT. They were sexually violated on three occasions each. Your sexual acts, save where they were attempts, were penetrative and significant. So there is a real scale to your offending and the Crown rightly points to that.

[27] However, although it is regrettable to have to do so in sentencing, it is part of my task to compare this offending to other cases. Many of the more serious sentencing decisions referred to in the R v AM involve far more victims and offending over a much longer period of time, or more damaging violence. There was

no extra violence or extreme pain inflicted, save that which is inherent in the rape of children. So, insofar as I have to fix the scale of offending, I would say that the scale of offending is at a moderate level. It is certainly an aggravating factor that this just did not happen once. You did it repeatedly and to two young victims.

[28] However, the other two aggravating features are right at the top end of the scale and you are very culpable for what you did. The first is breach of trust. These were vulnerable children who trusted you. You were in the position of a parent to them. They placed themselves in your hands with all the innocence and trust of children and you abused that trust in the most severe way that can be imagined by forcing yourself on them sexually. You breached not only their trust, but also breached the community’s trust in you because you had the responsibility given by your community to look after these children who have come from other homes.

[29] The related factor, and I am careful not to double up, is the utter vulnerability of the children. They were young, smaller and weaker and you were able to exploit that. They were doubly vulnerable. They were vulnerable not just because they were children, but because they were children who were not in their homes. They had gone to your place because it was judged that would be the best place for them, where they would be protected and looked after. They were very vulnerable to being hurt further, and you hurt them in the most severe way imaginable. So this is what makes your offending so serious. I do not place great weight on premeditation, as the offending was in my view largely a consequence of the moment and opportunistic.

[30] Now where do I place it in the scale that I have to consider? I compare it to a Court of Appeal decision of R v Gordon where there were again two victims of sex offending.⁴ A starting point of 16 years was approved there. The actual nature of the offending was not much different and there were one or two less incidents. Both of the children were young, younger on an overview than these victims, and the offending was over a much longer period of time. So I see that case which is a case that has been put in the bottom end of band four as just a little more serious than this.

[31] As I have said, sentencing is not a mathematical exercise but I identify your sentencing as somewhere towards the top of band three, or just a little below band four. I think the right starting point is 15 and a half years’ imprisonment for you.

Overall starting point taking into account totality

[32] Now before I get on to matters relating to you personally, I need to take into account the assaults. As I have said a number of times, these are in a totally different category. This is a totally different type of offending and level of offending. The six month starting point I fixed for that offending is notional and in a sense unrealistic because if these were the only charges you faced you would not have gone to prison. I cannot, however, accept Ms Ellis’ proposal that I should not effectively increase your sentence at all, and thereby not punish you at all for that offending. There has to be some mark made in relation to it.

[33] I have considered the Crown’s invitation to impose a cumulative sentence for the assaults, but I consider that to be unrealistic for reasons relating to the degree of your culpability which I have already mentioned. I consider in the end I should increase your starting point for sentence by a month for the assaults, to 15 years and seven months’ imprisonment to reflect the assaults taking into account the totality principle and the other factors I have mentioned.

[34] I now turn to matters relating to you personally. There are two matters I must consider. The first is your character. You are entitled to a credit for your good character. I have no doubt that you have been a well regarded and functioning member of our community. I say that not only because you were given this responsibility of looking after vulnerable children, but also because I heard witnesses at the trial who spoke about you with clear respect and gratitude for things you had done. You have no previous convictions, save for some very minor matters and traffic convictions.

[35] I have to be careful in this area because of course this offending arose in a way because you were trusted and because of your good character, that is why you were given these tender children into your care. But in the end I am going to give

you what I regard as a generous discount for good character which is in excess of the five per cent suggested, and deduct a year off your sentence for your good character.

[36] I am also going to recognise, although only in a modest way, the point made by Ms Ellis about your co-operation during the trial. You defended the trial as you were entitled to do, and you did through your lawyer Ms Ellis, co-operate in every sensible way possible to make the trial run quickly. This to an extent, and I recognise only in a small way, helped things run more smoothly for the victims. There is now expressed recognition of this factor in s 9(2)(fa) of the Sentencing Act

2002. So I am going to deduct a month on account of that factor also. This means that the end sentence that I impose will be 14 and a half years’ imprisonment.

[37] So could you stand up please Mr Kupa.

[38] Mr Kupa, on each of the three rape and each of the six unlawful sexual connection counts, I sentence you to 14 and a half years’ imprisonment. In relation to the one attempted rape and one attempted unlawful sexual connection counts, I sentence you to seven years’ imprisonment. On the one male assaults count, and nine assault on a child counts, I sentence you to one month imprisonment.

[39] All these sentences are concurrent, which means that your end sentence is 14

years and six months’ imprisonment.

[40] I have to address the minimum period of imprisonment Mr Kupa. Under the Sentencing Act 2002 I can sentence you to a minimum term of imprisonment of up to two-thirds of the sentence of imprisonment. Normally prisoners are eligible for parole after one-third of their period of imprisonment, but the net effect of imposing the maximum term of minimum term on you would be that you would not be eligible until two-thirds of your sentence was served.

[41] There has to be a particular reason for me to impose a minimum term of imprisonment and there are various factors I must take into account. These include any particular need to denounce your offending or to deter you or other offenders.

[42] I do take into account your good character, but I cannot avoid the fact that you have been guilty of this most serious breach of trust. You have exploited the most vulnerable members of our community, young children, and you have done so from a position of absolute trust. You have inflicted a life-long hurt on the sex victims. I am driven to the view I must mark your offending and denounce and deter others from the same offending by giving you a minimum term.

[43] The minimum term that I fix is 50 per cent, one half of your sentence, which is seven years and three months’ imprisonment. So that is the minimum term that I impose.

[44] You may stand down Mr Kupa.

...................................

Asher J