GREGORY DAVID PASK AND THE KING
[2024] NZHC 3037
•17 October 2024
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2024-406-5
[2024] NZHC 3037
BETWEEN GREGORY DAVID PASK
Appellant
AND
THE KING
Respondent
Hearing: 24 September 2024 Appearances:
M Zintl for Appellant by VMR
J M Webber for Respondent by VMR
Judgment:
17 October 2024
JUDGMENT OF GRICE J
(Appeal against sentence)
[1] Mr Pask was sentenced to 15 years and nine months’ imprisonment with a minimum period of imprisonment (MPI) of 10 years1 on charges of sexual violation by unlawful section connection (x 20),2 doing an indecent act on a child under 12 years (x 20),3 knowingly making objectionable publications (x 17),4 and knowingly possessing objectionable publications (x 3).5
1 R v Pask [2024] NZDC 8616 [sentencing notes].
2 Crimes Act 1961, ss 128(1)(b) and 128B; maximum penalty 20 years’ imprisonment.
3 Section 132(3); maximum penalty 10 years’ imprisonment.
4 Films, Videos, and Publications Classification Act 1993, s 124(1); maximum penalty 14 years’ imprisonment.
5 Section 131A(1); maximum penalty 10 years’ imprisonment or $50,000 fine.
PASK v R [2024] NZHC 3037 [17 October 2024]
[2] Mr Pask appeals the sentence on the basis that it is manifestly excessive. He challenges the starting point for the sexual violation, indecent assault and making objectionable publications offending, as well as the uplift for the possessing objectionable publications offending. He also says a discount should have been allowed for remorse, and challenges the imposition and length of the MPI.
Background
[3] The offending occurred over an almost eight-year period, from December 2015 to September 2023. The police identified 144 occasions of “contact” offending, including 60 occasions of sexual violation and 84 occasions of performing indecent acts.
[4] Mr Pask’s “contact” offending was committed against five known female complainants when they were aged between five and 11 years. Of the five known complainants, three attended the gymnastics club where Mr Pask coached, one was a friend of a gymnastic complainant and one was related to Mr Pask.6 He also committed contact offending against an unknown number of unknown children, who were also female. Mr Pask refused to cooperate with the police in identifying the unknown children.
[5] The Judge in his sentencing notes set out the detail of the offending based on the summary of facts.7 The offending occurred while the children were staying at Mr Pask’s house or were travelling with him for gymnastics competitions. In summary, Mr Pask touched and rubbed the children’s genitalia in similar ways, but this differed from child to child. He rubbed their genitalia both over and under underwear, rubbed their clitoris, digitally penetrated their genitalia and performed oral sex on their genitalia. Mr Pask touched various children’s buttocks as well as parted their buttocks to expose their anuses and digitally penetrated their anuses.
6 When interviewed by the police, Mr Pask voluntarily disclosed the offending against the complainant to whom he was related. The police were unaware of any offending against this complainant at that time but were aware of Mr Pask’s offending generally as they had the evidence of Mr Pask’s recording of the offending.
7 Sentencing notes, above n 1, at [2]-[19].
[6] Additionally on some occasions, the appellant manipulated a child’s hand to grip his penis and would thrust back and forth and press a child’s feet against his penis. In some instances, he inserted his finger into a child’s mouth. There were also instances where he manipulated a child’s body into vulnerable positions and pressed his exposed penis against their underwear, exposed genitalia, and tucked his penis underneath their underwear. He also rubbed a child’s chest. The appellant also poured an unknown substance directly onto one child’s underwear, on top of her genitalia. Mr Pask urinated during his offending on at least 14 occasions including when a child’s feet were pressed against his genitalia. He used the urine as lubricant to rub his penis and scrotum.
[7] Most of the offending occurred while the children were asleep. On some occasions the violation was repeated and prolonged, occurring over several hours.
[8] On 109 occasions, Mr Pask took pictures and videos of children’s genitalia and anuses, of children in different vulnerable positions and of him violating them. He arranged the recordings of his offending into different folders, sorted by date. There were a total of 1,477 images and 99 videos with a total length of 103 minutes.
[9] When executing a search warrant on 12 September 2023 in relation to offending against one complainant, the police discovered child sexual exploitation material depicting females aged from infants to around 10 years. There were approximately 9,000 images and videos analysed, this figure not including the over 6,600 other images not analysed. The files had been downloaded as early as January 2001, over 22 years before Mr Pask’s arrest.
[10] The appendix to the summary of facts indicates of those publications which have been analysed, there are Category A, B and C publications, those being the sentencing band guidelines used in the United Kingdom and adopted in New Zealand.
Sentencing decision
[11] At sentencing, the Judge adopted the sexual violation, doing an indecent act and making of objectional publications offending as the lead offences.8 The Judge observed that the parties agreed that the offending fell within the third unlawful sexual connection band of the Court of Appeal’s guideline judgment of R v AM, warranting a starting point of nine to 18 years’ imprisonment.9 However, the parties disagreed on whether the offending fell at the lower or higher end of that third band.10
[12] The Judge identified that the R v AM aggravating factors including the scale of the offending, planning and premeditation, vulnerability of victims, harm to victims and breach of trust were present in this case, all to a high degree.11 He found that Mr Pask’s offending fell within the upper end of band three of R v AM.12 The Judge arrived at a starting point of 17 and a half years’ imprisonment for the sexual violation, doing an indecent act and knowingly making objectionable publications offending.13
[13] Turning to the knowingly possessing objectionable publications (of child sexual exploitation material) offending, the Judge observed that there was no guideline case. However, he referred to a number of authorities and concluded the possession offending justified a starting point of seven years’ imprisonment if it were the only offence.14 Therefore, the Judge applied an uplift of three and a half years’ imprisonment for the possession offending.15
[14] This resulted in an overall starting point of 21 years’ imprisonment for all the offending.16
[15] The Judge gave a 25 per cent discount for Mr Pask’s early guilty plea.17 He gave no credits for remorse, previous good character or his disclosure of his offending
8 Sentencing notes, above n 1, at [34] and [62].
9 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [120].
10 Sentencing notes, above n 1, at [36].
11 At [56]–[59].
12 At [59].
13 At [62].
14 At [72].
15 At [73].
16 At [74].
17 At [77].
against the complainant to whom he was related.18 The result was an end sentence of 15 years and nine months’ imprisonment.19
[16] The Judge then considered whether to impose an MPI. He observed that Mr Pask’s offending was extremely serious. He also highlighted the pre-sentence report’s assessment that Mr Pask, in the absence of treatment, possessed a very high likelihood of re-offending and very high risk of harm to others. The report noted that Mr Pask could not understand why he committed such offending and that he could not help himself.20
[17] The Judge determined that the default MPI under the Parole Act 2002, being one-third of the sentence, would be an insufficient response in the eyes of the community, particularly as it would not sufficiently protect the community. Therefore, he imposed an MPI of 10 years’ imprisonment.21
Principles on appeal
[18] The appellant’s right of first appeal against sentence is under s 244 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against the Judge’s discretion.22
[19] In order to succeed, Mr Pask must show that there was an error in the sentence reached and that a different sentence should have been imposed.23 The Court will not intervene where the sentence is within the range available to the sentencing Judge.24 The Court will intervene only if the sentence is manifestly excessive.25
Issues on appeal
[20] Mr Zintl, for Mr Pask, submits that the sentence imposed is manifestly excessive on the grounds that the starting points taken were too high separately and as
18 At [78]–[88].
19 At [89].
20 At [95].
21 At [96].
22 Filivao v R [2024] NZCA 103 at [30].
23 Criminal Procedure Act 2011, s 250(2).
24 Tutakangahau v R [2014] NZCA 279 at [36].
25 Kumar v R [2015] NZCA 406 at [81].
a matter of totality, there was double counting in relation to the objectional publications offending, a five per cent remorse discount should have been allowed and the imposition and length of the MPI was in error.
Was the starting point for the sexual violation, doing an indecent act and knowingly making objectionable publications offending too high?
[21] R v AM is the guideline decision on sentencing for unlawful sexual connection. The parties agree that this offending falls into band three, which warrants a starting point between nine and 18 years’ imprisonment.26 The Court of Appeal in that case indicated that band three was appropriate for the most serious offending. It noted that it would involve two or more of the increased culpability factors to a high degree or more than three factors to a moderate degree.27 R v AM refers to three cases as examples of offending falling towards the upper end of band three. The first exemplar case was R v H, summarised in R v AM as follows:28
The offending involved 13 charges and eight female Vs over a 15 year period (1990–2005). The majority of the offending occurred when O babysat for families he met through church activities. The most serious charges involved O’s own daughter, and commenced when she was six months old. O fondled her genitalia on at least 20 occasions, kissed her genitalia on other occasions and attempted digital penetration. He also placed his penis on V’s exposed genitalia. The offending against the other victims, who ranged in age from four to 15 years, involved genital fondling, touching of breasts and digital penetration.
[22] Mr Zintl acknowledges that the offending in R v H has some similarities to Mr Pask’s offending in respect of the number of complainants and acts committed. However, he observes that the 15-year period of offending is greater than the eight-year period here, the complainants there were younger and one of the complainants was the offender’s daughter. However, I note against that, Mr Pask urinated on some of the children which adds to the degrading nature of the offending and so increases its seriousness. In addition, he took pictures and videos of children, which also increases the seriousness of the offending.
26 R v AM, above n 9, at [120].
27 At [120].
28 R v H (CA101/06), 18 September 2006; cited in R v AM, above n 9, at [121].
[23] R v AM also referred to R v Grinder as a second example, and summarised it as follows:29
O, male, offended against 13 children over a 25 year period. The Vs, aged four to 16 years, were both male and female. There were 24 charges, most representative. The historical nature of the offending meant O was charged with only one count of sexual violation (digital) however much of the conduct charged as indecent assault involved “oral contact”. It is not clear that this was non-penetrative. The other offending involved masturbating the male Vs, touching the breasts, genitalia and buttocks of the female Vs and self-masturbation in the presence of the Vs. The case does not give details of who the Vs were and how O came into contact with them.
[24] Mr Zintl acknowledges that the described offending in R v Grinder has some similarities to Mr Pask’s offending but distinguishes it on the basis of the longer period of offending and the younger complainants. I note there are several elements of Mr Pask’s offending that are not present in R v Grinder. The first is the urination element, secondly the connection between the offender’s penis and the childrens’ genitalia and thirdly the photographing and filming the offending. Additionally, it is unclear whether there was a breach trust element in R v Grinder. In the present case the breach was significant as Mr Pask gained access to many of the children through his position as a gymnastics coach and gained the trust of their parents. His offending also involved a degree of planning to have the children entrusted to his care.
[25] The last case offered by R v AM as an example of offending towards the upper end of band three is R v Te Tauri, which the Court summarised as follows:30
The offending involved three female Vs, aged three and a half to nine years, all children who were in daycare in the male O’s home. The most serious offending was against the three and a half year old. It continued for two and a half years. O touched her vagina, kissed and licked her vagina, made her hold his penis, and, wearing a condom, placed his penis between her thighs and simulated intercourse until he ejaculated. O admitted the kissing of the vagina occurred on at least 20 occasions, the licking on at least 10 and the simulated intercourse occurred 20 times.
[26] The offending in R v Te Tauri is of a similar nature to the offending here. As with the other cases provided by the Court of Appeal in R v AM, this offending involves younger children. However, the present offending is more serious as there were more
29 R v Grinder CA78/03, 26 August 2003; cited in R v AM, above n 9, at [121].
30 R v Te Tauri CA188/02, 15 July 2003; cited in R v AM, above n 9, at [121].
children, it occurred on more occasions and over a longer period of time. The present offending also saw Mr Pask urinate on the children, and Mr Pask photographed and filmed his offending.
[27] Comparing the present offending with these cases reveals that a starting point at the upper end of band three in R v AM was open to the Judge here and reasonable.
[28] I must bear in mind the need to treat comparator cases pre-R v AM with caution.31 Mr Zintl provided three additional authorities. The first is McArthur v R, which saw the Court of Appeal uphold a starting point of 17 and a half years.32 The appellant had persistently offended against four complainants aged between six and 17 years, over a 17-year period. The most serious of the offending saw the appellant rub and digitally penetrate a female complainant’s genitalia, and masturbate and perform oral sex on a male complainant and show him pornography. The appellant would masturbate himself at the same time. The appellant also performed oral sex on another male complainant, and required the complainant to put the appellant’s penis in his mouth. The offending in McArthur v R took place over a longer period of time, and seemingly at a greater frequency (on a weekly basis at times). However, the nature of Mr Pask’s offending is more serious, involving digital penetration, urination on the children, and photographs and video recordings. Further, the children here tended to be younger.
[29] Mr Zintl also referred to R v P, which saw the High Court impose a starting point of 15 years’ imprisonment.33 The defendant offended against five complainants to whom he was related aged six to 13 from 1993 to 2007, although most the offending occurred between 1993 to 1994 and 2002 to 2007. In R v P, the defendant rubbed, digitally penetrated, rubbed his penis against and performed oral sex on the complainants’ genitalia, usually while they were asleep. The defendant also rubbed a complainant’s penis, and required the complainant to rub his penis and perform oral sex on him. I agree with the Crown that the present offending is more serious than in
31 L v R [2021] NZCA 297 at [18].
32 McArthur v R [2013] NZCA 600.
33 R v P [2017] NZHC 627.
R v P, as there were more children, the offending was more degrading and occurred on many more occasions, and Mr Pask photographed and filmed the offending.
[30] The Judge found that Mr Pask’s offending was significantly worse than the two cases provided in R v AM as examples of offending at the lower end of band three.34 Having traversed the three cases given as examples of offending at the higher end of band three in R v AM and the cases provided by the parties, being SS v R, R v R, Rubick v R, and R v Miles,35 the Judge found the offending was worse than the offending in these decisions.36 I consider that the Judge made no error in his analysis. In the circumstances, the starting point of 17 and a half years’ imprisonment for the sexual violation, doing an indecent act and knowingly making objectionable publications offending was not manifestly excessive.
Was the uplift for knowingly possessing objectionable publications too high?
[31] As the sentencing Judge identified, there is no guideline case for sentencing for knowingly possessing child sexual exploitation material. However, the High Court in Snell v R conducted an extensive review of the New Zealand case law and held as follows:37
[…] sentencing for possession of objectionable publications requires, among other things, consideration of:
(a)The suite of aggravating factors identified in s 132A of the [Films, Videos, and Publications Classification Act 1993].
(b)The number of publications, bearing in mind Katz J’s cautions.
(c)The nature of the publications according to the United Kingdom guideline.
(d)The offence period and curation, if any.
(e)Harm, which will usually be linked to (a), (b) and (c), and perhaps (d).
34 Sentencing notes, above n 1, at [38].
35 R v H (CA101/96), 18 September 2006; R v Grinder, above n 29; R v Te Tauri, above n 30; SS v R (CA446/2016) [2017] NZCA 240; R v R (CA730/2014) [2015] NZCA 388; Rubick v R [2016] NZCA 8; and R v Miles [2016] NZHC 611.
36 Sentencing notes, above n 1, at [55] and [60].
37 Snell v R [2022] NZHC 1627 at [56].
[32] The aggravating factors identified in s 132A are the extent to which a publication is objectionable because it:
(a)promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both, for sexual purposes;
(b)describes, depicts, or otherwise deals with sexual conduct with or by children, or young persons, or both; and/or
(c)exploits the nudity of children, or young persons, or both.
[33] “Katz J’s cautions”, mentioned above,38 refer to her statement in Stewart v Dept of Internal Affairs that, in light of developments in modern technology, it is necessary to take a nuanced view of the size of an offender’s child pornography collection as an aggravating factor.39 She said “the size of a collection in itself is now a somewhat blunt tool in assessing culpability” and that this must be considered “in the broader context of everything that is known about an offender’s online behaviour in order to assess the appropriate level of culpability”.
[34] The United Kingdom Sentencing Council’s Guidelines in relation to possessing sexual images sets out three categories that have been adopted by New Zealand courts. They are described by the Court in Snell:40
(a)A is the most serious. It captures penetrative sexual activity with a child or young person; sadistic sexual activity upon children; and bestiality involving children.
(b)B is the next most serious. It captures non-penetrative sexual activity with a child or young person.
(c)C is the least serious. It concerns objectionable publications outside categories A and B.
[35] Here, Mr Pask was in possession of approximately 9,000 images and videos, excluding the over 6,600 other images that were not analysed. The files had been
38 Above at [31] in this judgment in the quote from Snell v R at (b).
39 Stewart v Dept of Internal Affairs [2014] NZHC 2209 at [42].
40 Snell v R, above n 37, at [5].
downloaded as early as January 2001, over 22 years before Mr Pask’s arrest. They included:
(a)1,121 category A images, including children as young as infants being raped and sexually violated in other ways and images featuring bestiality;
(b)351 category B images showing non-penetrative sexual content between adults and children; and
(c)3,330 category C images showing toddlers, infants and prepubescent children naked and in sexualised positions.
[36] Mr Zintl makes two submissions under this ground. First, he submits that an overall starting point for the possessing objectionable material offending, accounting for totality, should be moderated to three years. He relies on a number of High Court and District Court decisions. Of these, Stewart v Department of Internal Affairs, Department of Internal Affairs v Chadwick and Robinson v New Zealand Police are of limited assistance as a global starting point was imposed or upheld in those cases for offending that went beyond merely possessing objectionable material, and included making and/or distributing objectionable materials.41 However, three authorities provide assistance, two of which (Pengelly and Johnson) were analysed by the sentencing Judge.
(a)In Snell v R,42 the appellant imported and possessed 306 objectionable publications: 285 still images and 21 video files. 60 of the publications, including 10 videos, fell within category A, which included bestiality. 58 fell within category B, including 10 video files. 188 fell within category C, including one video file. The date and time stamps on the objectionable material identified that the defendant had an interest in
41 Snell v R, above n 37; Stewart v Department of Internal Affairs, above n 39; Department of Internal Affairs v Chadwick [2018] NZDC 20716; and Robinson v New Zealand Police [2017] NZHC 2655.
42 Snell v R, above n 37.
the material for at least 21 months before his arrest. The High Court upheld a four-year starting point on appeal.
(b)In Johnson v Department of Internal Affairs,43 the appellant possessed around 13,000 images or videos, with a large portion being category A including approximately 450 files (mainly videos) described as “sexually extreme or sadistic”. The children depicted in the material were as young as one year old. The material was downloaded over a period of 18 months. The High Court upheld a seven-year starting point on appeal.
(c)In Pengelly v Police,44 the two appellants possessed 739 objectionable publications, most of which were videos. 637 videos and two images fell into category A, which included death, sadism, torture, bestiality and the sexual exploitation of infants. 81 videos fell into category B. 19 videos fell into category C. Analysis of a seized phone disclosed conversations from two years before the appellants’ arrest about the viewing and sharing of objectionable publications. The District Court Judge had adopted a starting point of four years and three months’ imprisonment. The prosecution appeal was allowed. The High Court held that the starting point “should have been at least six to seven years”.45
[37] The Judge, having noted that there was no guideline case, identified the High Court’s decision in Snell v R as offering guidance for sentencing for this offending.46 He reviewed the two appellate sentencing cases involving possessing objectionable publications charges only, being Johnson v Department of Internal Affairs and Pengelly v Police.47 He held that the present possessing objectionable publications offending was comparable to the offending in those decisions, justifying
43 Johnson v Department of Internal Affairs [2021] NZHC 2480.
44 Pengelly v Police [2021] NZHC 2974.
45 At [82].
46 Sentencing notes, above n 1, at [63]–[64]; Snell v R, above n 37.
47 At [66]–[70]; Johnson v Department of Internal Affairs, above n 43; and Pengelly v Police, above n 44.
a starting point of seven years’ imprisonment if it were the only offence.48 The Judge applied an uplift of three and a half years’ imprisonment for this offending.49
[38] I do not consider the Judge made any error in the uplift imposed. The present offending was not as serious as the offending in Pengelly. While the appellants possessed less publications there and had collated the files over a shorter period, the publications included depictions of death, sadism and torture and was more extreme than in the present case. The present offending was more serious than the offending in Snell. The objectionable material there appears to be of a similar nature as that in the present offending, however there are significantly more files involved here and they were collated over a much longer period.
[39] The present offending is also less serious than the offending in Johnson because of the 450 files there described as “sexually extreme or sadistic”. The decision does not give further details of this material, but this material likely goes beyond children engaged in sexual activity as the Court described this as a separate category. I again note the greater time period over which Mr Pask collated the files.
[40] I consider an appropriate sentence for Mr Pask’s possessing objectionable publications charge if it stood alone would have been around six years’ imprisonment, rather than the seven-year period of imprisonment that the Judge considered “could well be justified”.50 However, this does not necessarily mean an uplift of three and a half years was too high. The theoretical starting point taken by the Judge of seven years was halved in the totality adjustment which I consider lead to an appropriate uplift of three-and-a-half years. That uplift was available to the sentencing Judge here based on the comparators.
[41] The second submission Mr Zintl makes under this ground is that the uplift featured an element of double counting as the making objectionable publications offending had already been factored into Mr Pask’s sentence for his sexual offending. However as the Crown noted, the possessing objectionable publications offending was
48 Sentencing notes, above n 1, at [72].
49 At [73].
50 Sentencing notes, above n 1.
separate, and did not include the photos and videos taken by Mr Pask of his offending. I accept that the possession of this material had some relevance to the contact offending but the quantity, nature of the material, and the period of offending indicates that the three-and-a-half-year uplift for the possessing offending alone was appropriate.
[42]This ground therefore fails.
Was the overall starting point too high?
[43] Mr Zintl submits that a starting point of 14 to 15 years for the sexual offending, with an uplift for possessing objectionable publications of three years, would have resulted in an overall starting point of 17 to 18 years’ imprisonment. On this basis, he says the starting point of 21 years’ imprisonment was too high.
[44] The starting point for the sexual offending and the uplift for the possessing objectionable publications offending were within range. I consider that as a matter of totality, the overall starting point of 21 years’ imprisonment was proportionate to the offending. The Judge made no error.
Did the Judge err in not imposing a discount for remorse?
[45] A reduction to sentence for remorse is usually made if, on a robust assessment of the circumstances, genuine remorse is demonstrated by the offender.51 This assessment is necessarily evaluative.52
[46] In considering remorse, the Judge observed that there was some indication of remorse expressed in the pre-sentence report, in that Mr Pask was willing to attend restorative justice and had written letters of apology to the complainants and their families.53 However, balanced against this was Mr Pask’s denial of being sexually attracted to pre-pubescent girls and his justification that his offending arose from his needing to be loved especially following the death of his wife in 2010, despite having
51 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
52 Sweeney v R [2023] NZCA 417 at [18].
53 Sentencing notes, above n 1, at [79].
commenced downloading objectionable material well before her passing.54 The Judge also observed that Mr Pask did not assist the police in identifying the unknown complainants of his offending, and the lack of offers of reparation. The Judge concluded that he was not persuaded that there should be a credit given for remorse.55
[47] Mr Zintl submits that a five per cent discount is justified. He contends that the steps taken by the appellant and as noted by the Judge did indicate remorse. Mr Zintl says the Judge was wrong to determine that Mr Pask is not remorseful due to his failure to identify other complainants and no offers of reparation.
[48] Mr Webber noted that the Judge was well placed to assess remorse. The Crown’s submission highlights Mr Pask’s denial in the pre-sentence report that he is attracted to pre-pubescent girls and his attempt to link the offending to the death of his wife despite having commenced collecting child sexual exploitation material long before her passing. The apology letters were almost identical, Mr Webber says, and the offer to attend restorative justice was realistically never going to be accepted by the families.
[49] I consider Mr Pask’s refusal to identify the unknown complainants is relevant to an assessment of remorse. Any remorse felt by Mr Pask does not outweigh his desire to protect himself from the further liability that might have resulted from knowledge of the true number of complainants. I do not consider the Judge was in error in rejecting a discount for remorse.
Did the Judge err in imposing an MPI of 10 years’ imprisonment?
[50] The imposition of MPIs is governed by s 86 of the Sentencing Act 2002. The provision provides:
86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
(1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender
54 At [80].
55 At [82].
serve a minimum period of imprisonment in relation to that particular sentence.
(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
[…]
(4)A minimum period of imprisonment imposed under this section must not exceed the lesser of—
(a)two-thirds of the full term of the sentence; or
(b)10 years.
[…]
[51] Mr Zintl submits that imposing an MPI was not justified under s 86. In the alternative, he contends that it ought to have been for only half the sentence, rather than the statutory maximum of 10 years. Mr Zintl points to Mr Pask’s age (61 years), guilty plea, lack of previous convictions, remorse, co-operation with the police in volunteering his offending against one of the complainants, and lack of treatment and potential for rehabilitation.
[52] Mr Zintl refers to the Court of Appeal’s decision in R v Nguyen, where the Court noted the relevance of a guilty plea and cooperation with authorities to considering whether an MPI should be imposed.56
[…] a guilty plea and co-operation with the authorities are relevant when considering whether a minimum period of imprisonment under s 86 is necessary to satisfy the purposes of denunciation and deterrence in relation to the offender personally, if the guilty plea and the co-operation demonstrate the offender’s insight into the nature and seriousness of his or her offending.
56 R v Nguyen [2009] NZCA 239 at [33].
[53] Mr Zintl also highlights the Court of Appeal’s decision in Fleming v R, where the Court did not uphold an MPI on appeal as the offender displayed genuine remorse, was assessed as having a real prospect of rehabilitation, and assisted the police by confessing to prior offending, enabling the police to charge him over a period extending beyond the time of arrest.57
[54] A relevant difference between the present case and R v Nguyen and Fleming v R is that there are questions regarding the genuineness of Mr Pask’s remorse here for the reasons discussed in the previous section. Mr Pask’s lack of genuine remorse is also relevant to the assessment of his rehabilitative potential. Nevertheless, the pre-sentence report records that Mr Pask believes he is in the right place now to get help and move on with his life, despite Mr Pask saying that he “could not help himself and does not understand why”. In the absence of treatment, Mr Pask is assessed to possess a very high likelihood of re-offending and a very high risk of harm to others.
[55] As the Crown noted, the Court of Appeal held in R v AM that an imposition of an MPI of at least half of the nominal sentence is “very routine” in this type of offending.58 In McArthur, the Court of Appeal held that it is far from unusual to see an MPI imposed in relation to the type and level of offending seen there, as release after one-third of the term will often not represent sufficient denunciation and deterrence given the gravity of the conduct.59
[56] The frequency and nature of Mr Pask’s offending, as well as the length of time over which it occurred, the young age of the complainants and the breaches of trust involved indicates that the sentence is inadequate to hold Mr Pask accountable for the harm done and to denounce his conduct.60 The Judge made no error determining the imposition of an MPI was called for. However, in the circumstances, and in particular given Mr Pask’s age and his indication to the PAC report writer that he is now “in the right place” to receive help, I consider the Judge made an error in imposing an MPI of 10 years. That is too high in the circumstances and is manifestly excessive. The
57 Fleming v R [2011] NZCA 646.
58 R v AM, above n 9, at [156].
59 McArthur v R, above n 32, at [16].
60 Sentencing Act, s 86(2)(a) and (b).
imposition of an MPI of half of the nominal sentence (of 15 years and nine months’ imprisonment) is sufficient to satisfy the purposes of denunciation and deterrence in relation to Mr Pask personally. The Parole Board will be in a better position to assess the position in the future when time has allowed Mr Pask the opportunity to undertake rehabilitation.
Result
[57] The appeal against sentence is allowed to the extent that the MPI of 10 years imposed on each of the charges of sexual violation by unlawful section connection is substituted with an MPI of one half of the nominal sentence imposed (concurrently) on each of those charges.
[58]The appeal is otherwise dismissed.
Grice J
Solicitors:
O'Donoghue Webber, Nelson for Respondent.
0
12
0