[1] Mr Paki, you appear this morning for sentencing on a single charge of indecent assault, which has a maximum penalty of seven years’ imprisonment.1 You were found guilty of that charge in March 2016, following a judge-alone trial in the District Court at Whangarei.2 As you are aware, the Crown seeks an indeterminate sentence of preventive detention based on your risk of reoffending.3 As a result, the District Court declined jurisdiction, and hence you being sentenced before me in the High Court.

[2] I see that there has been some unfortunate delay in sentencing.

[3] Health assessors’ reports in respect of the application for preventive detention were received in the middle of last year, but both authors of those reports considered they had limited information on which to base their opinions. Further information was provided to them, and updated reports were received late last year and in the last week and I have read those. It seems that there may still be some outstanding information as the Crown has referred to today, particularly in respect of your historical sexual offending. However, I am satisfied that the authors have expressed their views to the extent necessary and appropriate for me to sentence you today; and I am also conscious that it is now almost one year since you were convicted.

[4] The crucial question I have had to consider, and which counsel have emphasised this morning, is whether you should be sentenced to preventive detention or to a finite period of imprisonment. Having considered all of the material before me, I have decided to sentence you to a finite period of imprisonment and not preventive detention.

[5] Mr Paki, you should be under no illusion that as a result of your offending for which I am now sentencing you, your history of sexual offending and your persistent breaches of extended supervision orders, you were on the cusp of receiving
preventive detention. I will say more about those matters later. However, you need

1      Crimes Act 1961, s 135.
2      R v Paki [2016] NZDC 5103.
3      R v Paki [2016] NZDC 11585.

to understand that if you commit any further sexual offending in the future, be it against children or adults, a sentence of preventive detention will in all likelihood be considered again. I urge you to reflect on this, and in particular, in the context of your continued denial of all of your historical sexual offending.

[6] I now turn to outline the facts of the offending on which I am now sentencing you.

The offending

[7] You committed the indecent assault in October 2007. The victim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Paki

Details

AGLC: Police v Paki [2017] NZHC 79
Case: [2017] NZHC 79
Decision Date: 3 February 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Hare Paki was sentenced for a charge of indecent assault, which carries a maximum penalty of seven years' imprisonment. The defendant was found guilty in March 2016 following a judge-alone trial in the District Court at Whangarei. The Crown sought an indeterminate sentence of preventive detention based on the defendant's risk of reoffending, but the District Court declined jurisdiction, and the defendant was sentenced before the High Court. The crucial question the court had to consider was whether the defendant should be sentenced to preventive detention or a finite period of imprisonment. After considering all the material before the court, the court decided to sentence the defendant to a finite period of imprisonment and not preventive detention.

The defendant's personal circumstances were also considered, including his age, medical record, and previous convictions. The defendant has a history of heart problems, asthma, diabetes, and has had a stroke. He has 32 previous convictions, eight of which were entered after the date of this offending, including three prior instances of sexual offending against children. The defendant has also breached his extended supervision order's conditions on several occasions.

The court also considered the five mandatory factors required when considering a sentence of preventive detention, including whether the defendant's offending history discloses a pattern of serious offending, the seriousness of the harm to the community caused by the offending, information indicating a tendency to commit serious offences in the future, the absence of, or failure of, efforts to address the causes of the offending, and the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. The court decided not to order a sentence of preventive detention and instead decided on a finite sentence of imprisonment.

The court began with a starting point of 18 months' imprisonment, considering the aggravating factors of the defendant's offending, including the victim's vulnerability, the breach of trust, and the lasting emotional harm caused to the victim. The court then adjusted the starting point to reflect the defendant's personal circumstances, including his previous sexual offending and the fact that he offended while subject to an extended supervision order. The court also considered the need for community protection in the defendant's case, given that he is otherwise eligible for preventive detention. The court decided on a total uplift of 12 months to the starting point, resulting in an end sentence of 30 months' imprisonment, or two years and six months. The defendant's release conditions will be set by the Parole Board.

Orders