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A man who groped a sleeping woman provided the most damning evidence at his own trial — photos of the sex attack.
Dion Shane Kyle (39) was found guilty by a jury before the Dunedin District Court of indecent assault, and pleaded guilty on the final day of the trial to making an intimate visual recording.
Judge Michael Turner said the victim, who had taken sleeping pills and other medication before the 2018 incident, could not have given consent as she was unconscious at the time.
The six images were discovered only when police seized Kyle’s phone over a different matter.
When the victim was informed, about a year after the incident, she was shocked.
She called it the “most brutal” of betrayals.
It was not the first time Kyle had displayed criminal sexual behaviour over the past decade.
He told Probation recently he had “a very different sex life”.
In 2004, Kyle was convicted of having sex with a 14-year-old girl and molesting a 12-year-old at Moana Pool; and eight years later he admitted performing an indecent act in a library.
He was also sentenced to intensive supervision and community work in 2014 after he posted explicit photos of a woman on a pornographic website because he believed she had egged his car.
Counsel Anne Stevens QC said her client had retained the photos featured in his most recent case for his own gratification
“He didn’t mean her any harm by it,” she said.
But the victim said she suffered significant emotional harm and financial cost, undertaking treatment to overcome the effects of the crimes.
Judge Turner called it a “gross invasion of her privacy and dignity” and said he was stunned Kyle was assessed as being at only a low risk of reoffending and at a medium risk of harm to others.
The fact he had not undergone any rehabilitative programmes to address his sexual predilections should surely put his risk at a higher level, he said.
Despite a history of sex and violence offending, Kyle had a girlfriend in the North Island who stood by him and wrote to the court in support. Her partner was truly sorry, she said.
Similarly, Kyle’s father opined about how his son had shown remorse “throughout this ordeal”.
Judge Turner rejected those statements.
Kyle, he said, had taken the case to trial during which the victim had endured an “embarrassing and awkward” cross-examination.
“I don’t consider, in all the circumstances, your remorse to be genuine or sincere,” the judge said.
Kyle was sentenced to two years, one month’s imprisonment.
Had the sentence been less than two years, Judge Turner said, he would still have refused to convert it to home detention.
Kyle had 28 convictions for breaching court orders and was not suitable for a community-based penalty, he said.