R v A
[2018] NZHC 2024
•9 August 2018
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS/
CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-092-8389
[2018] NZHC 2024
THE QUEEN v
“A”
Hearing: 9 August 2018 Appearances:
R Warren for the Crown
D Dufty and R Patel for the Defendant
Sentence:
9 August 2018
SENTENCING NOTES OF GORDON J
Solicitors: Crown Solicitor, Manukau Counsel: D Dufty, Auckland
R v “A” [2018] NZHC 2024 [9 August 2018]
Introduction
[1] Mr A you appear today for sentence after having accepted a sentence indication of 15 years and two months’ imprisonment given by me on 2 March 2018.1 You pleaded guilty on 12 March 2018 to the following 14 charges:
(a)Two representative charges of sexual violation by rape;2
(b)Six representative charges of sexual violation by unlawful sexual connection;3
(c)Four representative charges of assault with a weapon;4
(d)One representative charge of male assaults female;5 and
(e)One charge of attempted sexual violation by rape.6
[2]Sexual violation carries a maximum penalty of 20 years’ imprisonment.7
[3] As I made clear in my sentence indication, any indication I gave was subject to this Court’s decision on whether it should impose a sentence of preventive detention.8
[4] Ms Warren, for the Crown, submits that a finite sentence coupled with the prospect of an extended supervision order (ESO) would provide adequate protection for society in this case. In any event, Ms Warren submits that a minimum period of imprisonment of eight years and six months’, or 56 per cent, should be imposed.
[5] Mr Dufty, on your behalf, agrees with the Crown’s submission that a finite sentence would provide sufficient protection for the community. But he instead
1 R v A [2018] NZHC 321.
2 Crimes Act 1961, s 128(1)(a).
3 Section 128(1)(b).
4 Section 202C(1)(a).
5 Section 194(b).
6 Section 129(1).
7 Section 128B(1).
8 R v A, above n 1, at [59].
submits that an appropriate minimum period of imprisonment would be 50 per cent of the end sentence.
[6] As this Court may impose a sentence of preventive detention regardless of what counsel submit, that is what I must decide today.9
[7] Before I determine whether I will do so, I must first identify what the appropriate finite sentence should be.
[8]I will begin by outlining the facts of your offending.
Factual background
[9] You accepted the sentence indication which was based on an agreed summary of facts. I adopt and set out below my earlier summary of your offending:10
[8] [Mr A], you moved to New Zealand from Australia in January 2015. You moved into a property [in Auckland], with three of your daughters, namely [Daughters A, B and C]. Their mother, [your wife], arrived in March 2015 with your youngest daughter, [Daughter D]. After that, [your wife] continued to travel back and forth between Australia and New Zealand.
[9] I will set out your … offending in relation to each of your daughters individually. And I will refer to them, as I have done already, by [letters] to avoid [identifying them]. This is only a brief summary of what is a comprehensive summary of facts.
[Daughter A]
[10] [Daughter A] was 14 years’ old when she moved here with you. She is the eldest child.
[11] Between January 2015 and March 2017 you sexually assaulted [her] on countless occasions, sometimes as often as twice a day. On most occasions, [she] did not protest or physically resist. If she resisted, you would threaten her with physical violence.
[12] Generally you would wait until everyone was sleeping before you woke [Daughter A]. You would proceed to sexually offend against her, either touching her vagina with your fingers or tongue, making her touch your penis or inserting your fingers into her anus. You would then penetrate either her vagina or her anus with your penis. On other occasions, you would force her to perform oral sex on you until you ejaculated in her mouth.
9 Sentencing Act 2002, s 87(3).
10 R v A, above n 1.
[13] … during that time you assaulted [Daughter A] either using your hands or weapons (including a belt and an extension cord). These assaults left marks on her body, often with bruising lasting for a week or two.
[Daughter B]
[14][Daughter B] was 12 years’ old when she moved here with you.
[15] Between January 2015 and March 2017 … you also sexually assaulted [her] on countless occasions … between three to four times a month.
[16] The offending followed a similar pattern to your … offending with [Daughter A]. After waiting until everyone was asleep, you approached [Daughter B] and told her to sit on you. After she refused, you forcibly made her remove her clothes. You then made her sit on your erect penis and moved her up and down, without fully penetrating her. You forced her to perform oral sex on you, as well as rubbing your penis on her vagina.
[17] On one other occasion in 2015, you … attempted to rape [Daughter B] when she was in the shower. You told her not to tell anyone otherwise you would kill her.
[18] … during that time you assaulted [Daughter B] using weapons (including a belt and an extension cord). Those assaults caused redness, swelling and bruising.
[Daughter C]
[19][Daughter C] was eight years’ old when she moved here with you.
[20] Between January 2015 and March 2017 … you physically assaulted [her] on countless occasions, by hitting her with a belt on her hands, feet or back. [Daughter C] struggles with mathematics. You would test her. Whenever she got the answers wrong, you would smack her with your belt.
[21] These assaults … occurred approximately every Sunday after a family meeting.
[Daughter D]
[22] [Daughter D] was four years’ old when she moved here with her mother.
[23] Between March 2015 and March 2017 … you physically assaulted [her] on numerous occasions through the use of your hands or a belt. You would instruct her to put her hands out in front of her with her palms facing up. You would then smack her hands with a belt. If you did not have a belt at the time, you would hit her with your hands.
Approach to sentencing
[10] Mr A, setting a finite sentence involves three steps.11 First, I must indicate what starting point offending of this type would attract. I must then adjust that starting point up or down to take into account your personal circumstances. The last step is to consider what discount you might receive for your guilty pleas.
[11] In sentencing you, Mr A, I must have regard to the purposes and principles of sentencing which are set out in ss 7 and 8 of the Sentencing Act 2002. In particular, I must emphasise the importance of holding you accountable for your conduct, promoting in you a sense of responsibility for that harm, denouncing the conduct, deterring you and others, and protecting the community from you. I also note the gravity of the offending, including your degree of culpability, the seriousness of the type of offence and the effect of the offending on the victims.
Starting point
[12] In my sentence indication, I took the charges of sexual violation by rape as the lead offending.12
[13] I adopt a starting point of 17 years and six months’ imprisonment on these charges, which was set out in my sentence indication.13 I explain that as follows.
[14] Sexual violation by rape carries a maximum penalty of 20 years’ imprisonment. The Court of Appeal decision of R v AM (CA27/2009) is the tariff case for that offending.14 In that case, the Court of Appeal categorised the seriousness of rape offending through four bands resulting in different sentences:15
(a)Rape band one: 6-8 years;
(b)Rape band two: 7-13 years;
(c)Rape band three: 12-18 years; and
11 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
12 R v A, above n 1, at [29].
13 At [39].
14 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
15 At [90].
(d)Rape band four: 16-20 years.
[15] The Court of Appeal also listed a number of factors relevant to assessing the seriousness of the offending.16 I will now refer to the relevant aggravating features of your offending:
(a)Vulnerability of the victims17 – the victims were your children. This impacted on their ability to resist your advances and prevent the sexual assaults from occurring. This was aggravated by the fact that the offending began when their mother was not in New Zealand. They had no one to turn to. This aggravating factor is extremely significant.
(b)Breach of trust18 – I similarly regard this factor as significant. The offending was by you, as a father, against your two daughters. They were entrusted in your care.
(c)Extent of damage or harm19 – the Court of Appeal in R v AM (CA27/2009) recognised that there is harm inherent in sexual offending.20 But the more harmful the offending, the more serious it is.21 I have read the victim impact statements provided by Daughter A and Daughter B. They both attended Court today and daughter A read out her statement. They both describe how overwhelming the situation has been and mention having regular memory flashbacks. They were separated from their mother and two other sisters because they fell out with their mother. They both went to live with their aunt. I am told today by Ms Warren that they are now back living with their mother. They are yet to fully understand or realise the effect that your offending will have on them. There will be serious long-term psychological effects. Sadly, Daughter A even describes feeling guilty for “telling on Dad”.
16 At [37]-[64].
17 Sentencing Act, s 9(1)(g).
18 Section 9(1)(f).
19 Section 9(1)(d).
20 R v AM (CA27/2009), above n 14, at [44].
21 At [44].
(d)Actual or threatened violence22 – the Court of Appeal similarly recognised that there is violence inherent in any act of sexual violation.23 You made Daughter A and Daughter B comply with your demands. However, there was a low level of violence involved which was a direct consequence of their vulnerability.
(e)Premeditation24 – I regard the level of premeditation as extremely significant. You decided to take advantage of Daughter A and Daughter B for your own sexual gratification. The Court of Appeal in R v AM (CA27/2009) recognised that:
[37] … Sexual violation of an impulsive nature, although still serious, will generally be less so than that involving grooming of a child or young person, taking steps to get a victim alone, giving the victim alcohol or drugs with a view to offending, and other predatory behaviour …
Your conduct is analogous to sexual grooming. Over time, your two daughters became conditioned not to physically resist. In fact at the restorative justice conference, which I will refer to later in these sentencing remarks, Daughter A said she let you use her in order to try protect her mother and sisters.
(f)Scale of the offending – you face two representative charges of rape. But the summary of facts records that you sexually offended against Daughter A sometimes as often as twice a day. In terms of Daughter B, it was three to four times a month. This increases the seriousness of the offending.25
[16] Sentencing courts are empowered to impose sentences close to the maximum penalty available when the offending is near the worst of its type.26 In my view, your offending comes within that category. It is an example of the “paradigm case of offending” that the Court of Appeal in R v AM (CA27/2009) referred to, in that it
22 Section 9(1)(a).
23 At [38].
24 Section 9(1)(i).
25 R v AM (CA27/2009), above n 14, at [47].
26 Sentencing Act, s 8(d).
involves the repeated rapes of one or more of your children.27 As the Court of Appeal said, this type of offending will attract a starting point at the higher end of band four.28
[17] I acknowledge that the examples given under band four in R v AM (CA27/2009) are instances of offending that are more serious than your offending, due to the repeated nature of the rapes and the period of time over which the offending lasted.29 But your offending is more serious than the cases cited by Mr Dufty at the sentence indication hearing as it involves the rape of your own children.30
[18] I accept the Crown’s submission that your offending is most akin to the case of R v K, in that it involves offending against two victims, who are your biological daughters, and the sexual offending occurred at a similar frequency.31 The offending in R v K contains a similar number and type of aggravating features, but I note the offending in R v K occurred over a period of six years compared to two years in your case. That increases the seriousness in that case.
[19] In light of all this, I am satisfied that a starting point of 17 years and six months’ imprisonment is appropriate.
Uplift
[20]It is necessary to uplift that starting point to reflect the rest of your offending.
In doing so, I adopt the uplifts which were set out in my sentence indication.32
[21] As to your remaining sexual offending, you face six representative charges of sexual violation by unlawful sexual connection. The most serious would be the anal rape of Daughter A. On its own, and given the number of aggravating features involved, that charge would fall at the higher end of band three of the bands designed for that offence.33
27 At [109].
28 At [109].
29 R v E (CA443/04) CA443/04, 6 April 2005; R v P (CA176/04) CA176/04, 7 October 2004; R v T
CA445/03, 13 May 2004.
30 Roberson v R [2013] NZCA 642; W (CA247/2010) v R [2010] NZCA 561.
31 R v K [2015] NZHC 1778.
32 R v A, above n 1, at [43] and [47].
33 R v AM (CA27/2009), above n 14, at [113].
[22] For your remaining sexual offending, namely those six charges and the attempted rape charge, I adopt an uplift of two years’ imprisonment.
[23] As to the physical offending, there is no tariff case for assault with a weapon, nor for male assaults female. I have considered the cases referred to me by counsel at the sentence indication hearing.34 I also bear in mind s 9A of the Sentencing Act which applies if the Court is sentencing an offender in a case involving violence against a child under the age of 14 years.
[24]For the physical offending, I adopt an uplift of six months’ imprisonment.
Overall starting point
[25]I therefore adopt an overall starting point of 20 years’ imprisonment.
Personal circumstances
[26] I now need to consider your personal circumstances to see whether I should adjust your starting point.
[27] I did not have the benefit of a pre-sentence report before me when I gave your sentence indication. A pre-sentence report has now been prepared. I will summarise it briefly.
Pre-sentence report dated 28 March 2018
[28] You are 40 years of age. You were born in Tonga, but moved to New Zealand in 1996 to study and contribute to a family business based in Auckland. You then moved to Australia in 1998, where you met your wife. You say that you maintain contact with your wife now, who you claim remains supportive of you in the hope you can learn from your mistakes.
[29] In 2015, you returned to New Zealand. You report finding employment as a truck driver, which was physically demanding and resulted in you working long hours.
34 C (CA155/2014) v R [2015] NZCA 33; R v Dodds [2016] NZHC 1391; Frantzetis v R [2015]
NZHC 710.
[30] The physically demanding nature of your employment, combined with your status as a devoted and protective father, was used as an explanation for your actions that led to your offending. After a long day’s work as a truck driver, you would arrive home and seek the physical comfort of your children through playful massage activities. You alluded to the obligations of your children to care for you.
[31] The pre-sentence report writer noted, however, that your engagement in the interview was characterised by subtle attempts at shifting and avoiding topics of conversation. The report writer recorded that your insight into your offending attitudes is marginal at best, and you acknowledged that what little insight you have is derived from external feedback. You refused to discuss any particular aspect of your offending for which you acknowledge guilt, but you commented on elements of the offending you deny. You could not identify with the potential harm that you have caused your children, leading the report writer to assess you as lacking victim empathy.
[32] That being said, your stated desires for the future include working towards being accepted by your family and your children, in order to resume some role in their lives as their father. But you did not present as being aware of any victim related issues or legal barriers to these hopes. Nor did you present as aware of the risks you may pose to others. The report writer therefore assessed you as at a high risk of further offending and at a high risk of harm.
[33] Of particular concern is the report writer’s comment that there is ample reason to suggest you are highly sexually preoccupied in relation to sexual urges of power or control, whilst expressing deviant sexual interests. You alluded to the fact it would have been highly unlikely you would have desisted from further sexual offending or the use of violence had you not been arrested.
[34] The report writer commented that you presented with particularly entrenched and pervasive issues that require intensive interventions.
[35] However, since you were interviewed on 28 March 2018 by the writer of the pre-sentence report, there has been an apparent shift in your willingness to talk about your core problems and an emerging insight into the nature of your behaviour. I will
refer to those matters further when I address the restorative justice conference and the question of preventive detention.
Previous convictions
[36] As set out in my sentence indication, I uplift your sentence by six months’ imprisonment to reflect your previous convictions.35 Although you have no prior convictions in New Zealand, you have convictions in Australia for sexual offending, including for indecent assault in 2004 against a 13-year-old girl. She was also a family member, namely the cousin of your wife. Following discovery of the offending by family members, you left Australia for almost two years. You were arrested upon your return. As a result, you are an Australian Registered Child Sex Offender.
[37]That brings the sentence to 20 years and six months’ imprisonment.
Time spent on bail
[38] Following your arrest on 24 July 2017, you were subject to restrictive bail conditions, which included a 24-hour curfew, seven days a week. You were unable to work, support your wife and extended family, and repay household debts. Some burden fell on your wife to make car and financing repayments.
[39]After your plea of guilty on 12 March 2018, you were remanded in custody.
[40] Discounts for time spent on electronically monitored bail are at the discretion of the sentencing Judge.36 In Chea v R, a discount of four months was allowed for a period of 13 months on restrictive bail conditions.37 In R v Tamou, the Court of Appeal imposed a discount of three months on appeal for nine months spent on electronically monitored bail with a 24-hour curfew.38
35 R v A, above n 1, at [50].
36 Chea v R [2016] NZCA 207 at [108]; R v Gray [2008] NZCA 224.
37 Chea v R, above n 36.
38 R v Tamou [2008] NZCA 88.
[41] As set out in my sentence indication, I apply a discount of three months’ imprisonment to reflect the time you spent on restrictive bail conditions.39 This brings the sentence to 20 years and three months’ imprisonment.
Restorative justice
[42] On 24 July 2018, you participated in a restorative justice conference with your two eldest daughters. I have received a restorative justice report dated 1 August 2018.
[43] It records that you accept responsibility for your offending, you blame yourself and you are truly sorry for what you have done.
[44]I must take into account any outcomes of restorative justice processes.40
[45] Mr Dufty submits that a discount of 10 to 15 percent for your engagement in restorative justice, and your genuine remorse, is appropriate.
[46] Ms Warren accepts a modest discount may be appropriate to reflect your participation in restorative justice processes. She cites four cases where discounts of between four and 14 per cent were given.41
[47] Out of those cases, I derive the most assistance from R v Martin.42 In that case, the defendant pleaded guilty to seven charges of sexual violation by unlawful sexual connection, one charge of indecency with a boy under 12 and one charge of attempted sexual violation by rape. The victims were his relatives and the offending spanned over an eight-year period. Two of the victims took part in restorative justice with the defendant.
[48] Thomas J first acknowledged that it is “relatively unusual for restorative justice to be undertaken for this type of offending”.43 But the Judge described it as a
39 R v A, above n 1, at [54].
40 Sentencing Act, s 8(j).
41 R v Shirley [2009] NZCA 216; R v Martin [2017] NZHC 1571; Rowles v R [2016] NZCA 208;
Waho v Police [2018] NZHC 1767.
42 R v Martin, above n 41.
43 At [25].
“remarkable event”.44 She eventually awarded a discount of 15 per cent for remorse, as well as “participation in and contribution to a remarkable restorative justice conference”.45
[49] I consider that a discount of just under 10 per cent for your participation in the restorative justice conference and the remorse you showed during that conference is appropriate. That is a discount of 22 months, bringing the sentence to 18 years and five months’ imprisonment.
[50] As I have given a discount on this issue, which was not set out in my sentence indication, any reference from this point onwards to the Crown submissions will be by way of the percentage referred to by the Crown rather than the number of years or months that the Crown referred to.
Guilty plea
[51]You are entitled to a reduction in your sentence for your guilty pleas.46
[52] As set out in my sentence indication, I adopt a discount of 25 per cent.47 That equates to a discount of four years and eight months’ imprisonment.
Effective end sentence
[53] I would therefore impose an end finite sentence of 13 years and nine months’ imprisonment.
Minimum period of imprisonment
[54] In my sentence indication, I declined to give an indication as to a minimum period of imprisonment.48 It is appropriate to address that now.
44 At [27].
45 At [38].
46 Hessell v R, above n 11, at [73]. See also Sentencing Act, s 9(2)(b).
47 R v A, above n 1, at [56].
48 At [57].
[55] The Court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum which is usually served is insufficient either in:49
(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.
[56]As the Court of Appeal explained in R v Gordon:50
[48] … where a minimum period of imprisonment is being considered, it is necessary to reconsider all of the sentencing principles in ss 7, 8 and 9 [of the Sentencing Act] …
[57] Ms Warren submits that if a finite sentence of imprisonment is imposed, a minimum period of imprisonment of 56 per cent would be appropriate to sufficiently denounce your conduct and to protect the community.
[58] Mr Dufty, on the other hand, submits that a minimum period of imprisonment of 50 per cent is appropriate. He submits that this would reflect the gravity of the offence, while taking into account that you are willing to engage in rehabilitation and you have sought to make amends with the victims. This would also be adequate time for you to complete treatment programmes. Should you need further time, this would be a suitable matter for the Parole Board.
[59] The Courts frequently impose minimum periods of imprisonment of at least half in cases like this one, involving multiple charges of serious sexual offending against children. As the Court of Appeal recognised in R v AM (CA27/2009):51
[156] A comparison with the appellate decisions from 2003 onwards of cases involving multiple counts of sexual offending against children reviewed in Gordon supports the Crown submission that an MPI ought to have been imposed in this case. This and the other authorities to which we were taken by the Crown suggest that the imposition of an MPI of at least half of the nominal sentence is very routine in cases of this type …
49 Sentencing Act, s 86(2).
50 R v Gordon [2009] NZCA 145.
51 R v AM (CA27/2009), above n 14.
[60]More recently, in Pomare v R, the Court commented:52
[15] A survey of cases involving sexual offending with similar features to the present discloses minimum periods of imprisonment between 50 and 64 per cent …
[61] Ms Warren refers to three Court of Appeal decisions where minimum periods of imprisonment of between 60 and 64 per cent were upheld in the context of like offending.53
[62] However, I consider that the case of Pomare v R in particular, where a minimum period of imprisonment of 60 per cent was upheld on appeal, is more serious due to the sustained sexual offending over a 14-year period.54
[63] The present case involves sustained serious sexual and violent offending against your daughters. All of the sentencing purposes referred to above are engaged. However, the period over which your offending occurred was two years as opposed to the 14 years in Pomare. I also accept that you have engaged in restorative justice with the victims, and you have shown remorse and a desire to engage in the appropriate treatment programmes. I therefore consider that a minimum period of imprisonment of 50 per cent, or six years, 10 months and two weeks’ imprisonment would be appropriate.
Preventive detention
[64] Preventive detention is a sentence of imprisonment for an indefinite period. If imposed, you will be released only when the Parole Board is satisfied you no longer pose a risk to the community.
[65] The Court of Appeal has reiterated that the purpose of a sentence of preventive detention is not punitive.55 Its purpose is to “protect the community from those who pose a significant and ongoing risk to the safety of its members”.56
52 Pomare v R [2015] NZCA 191.
53 R v I (CA70/08) [2009] NZCA 101 at [15]; Z (CA586/12) v R [2012] NZCA 607 at [21]; Pomare
v R, above n 52, at [20].
54 Pomare v R, above n 52.
55 R v C [2003] 1 NZLR 30 (CA) at [5].
56 At [5]. See also Sentencing Act, s 87(1).
[66] There are three prerequisites for imposing a sentence of preventive detention.57 The first two require the offender to have committed a qualifying violent or sexual offence and to be over 18 years of age at the time of the offending. There is no dispute that those prerequisites are met in your case.
[67]The third prerequisite is as follows:58
(c) the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date (as specified in subpart 3 of Part 1 of the Parole Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.
[68] I am required to consider reports from at least two appropriate health assessors about the likelihood of you committing a further such offence.59 Two reports were commissioned for that purpose. One was a report from Dr Ian Goodwin, a consultant psychiatrist.60 The second was a report dated 23 July 2018 from Ms Sanjeeta Sharma, a clinical psychologist.
The reports
[69] Doctor Goodwin recorded that you reported your childhood in Tonga as being “very strict”. You reported regular physical, but not sexual, abuse.
[70] You said to Dr Goodwin that you had considerable problems with alcohol and drugs. You estimated that you would consume a litre bottle of whisky every two days. You also said you were introduced to methamphetamine after your return to New Zealand in 2015. You said you smoked methamphetamine on a frequent basis, estimating that you would use approximately half a gram per week. You qualify for diagnoses of alcohol abuse and methamphetamine abuse.
[71] When asked about the extent of your offending by Dr Goodwin, you blamed your alcohol and drug use. You admitted a sexual attraction to young girls, but
57 Section 87(2)(a)-(c).
58 Section 87(2).
59 Sentencing Act, s 88(1)(b).
60 Doctor Goodwin’s report is dated 7 February 2018. The date must be an error as Dr Goodwin only met with the offender on 13 July 2018 and the report was received by counsel on 31 July 2018.
appeared to minimise the extent of your offending. This was after you said, “I know what I have done is not good … I learn from my mistakes”. At that stage, you still hoped that a restorative justice process might be possible, stating that you wanted to apologise to your daughters.
[72] You told Dr Goodwin that you were willing to undertake programmes for sexual offenders, and also one-to-one psychology sessions while in prison. You have not previously undertaken any treatment for child sex offending.
[73] Applying actuarial risk assessment tools, Dr Goodwin found that you were in the moderate to high risk category for reoffending in a similar manner.
[74] Ms Sharma described you as open and forthcoming with information regarding your offending behaviour. Although your range of emotions was blunted, you were tearful when talking about your remorse for your sexual offending. You showed a high level of motivation to understand your sexual offences and to seek treatment.
[75] You repeated, however, that you used alcohol to overcome your sexual inhibitions during your sexual offending. You said you could only ask for sexual favours after you were intoxicated. But you described your offending as being driven by sexual frustration, claiming that you were lonely and sad upon arriving in New Zealand. You described having low moods due to your long working hours as a truck driver, and having no outlet as you then needed to come home to your daughters as your wife was in Australia. You relied on sexual gratification as a means to unwind after work.
[76] Your reason for physically assaulting your daughters was because you were anxious about them engaging in premarital sex and becoming pregnant, claiming that was like your wife’s side of the family, so you used harsh physical discipline to make them comply with your rules. You said that your daughters were at risk of tarnishing their reputations, as well as your own, by underperforming at school and leading a promiscuous lifestyle. So, you resorted to corporal punishment to discipline them.
[77] Ms Sharma commented that your relationship with your daughters was defined by your power and control over them, while your relationship with your wife was an emotionally distant one.
[78] Using risk assessment tools, Ms Sharma found that you were at a moderate risk of reoffending in a similar manner.
Analysis
[79] Relying on these two reports, I consider there is sufficient evidence to indicate that you are likely to commit another qualifying sexual offence.
[80] I must now consider whether to exercise my discretion to impose a sentence of preventive detention. Section 87(4) of the Sentencing Act sets out a range of considerations that I must take into account in considering whether to impose such a sentence:
(a)any pattern of serious offending disclosed by the offender’s history; and
(b)the seriousness of the harm to the community caused by the offending; and
(c)information indicating a tendency to commit serious offences in future; and
(d)the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
Pattern of serious offending
[81] I have already referred to your previous criminal history. You have a conviction in Australia for sexually offending against a 13-year-old relative back in 2003. As a result, you are a registered Australian Child Sex Offender.
[82] The instant offending occurred for a period of over two years where you offended against the victims on multiple occasions. There are similarities between the
offending in Australia and in New Zealand, both in relation to the age of the victims and the familial relationships.
[83]But in any event, the offending against your children formed a pattern in itself.
[84] I am satisfied there is a clear pattern of sexual offending against young children who are in your control.
Seriousness of the harm to the community
[85] There is no doubt that your offending caused significant harm to the victims in this case. Sexual offending, particularly against young children, has a significant impact on the victims, as well as the family as a whole and the community. It undermines the trust children ought to have in their caretakers. As already noted, there will be serious long-term emotional and psychological effects on your daughters.
Information indicating a tendency to commit serious offences in the future
[86]There is a degree of overlap between this factor and the third prerequisite.61
[87] Dr Goodwin assessed you as at a moderate to high risk of reoffending in this manner. Ms Sharma assessed you as at a moderate risk of reoffending. However, I accept Mr Dufty’s submission that this risk needs to be considered in the light of your efforts to recognise your offending, your acceptance that treatment is needed, and your willingness to engage in structured treatment. These are mattes that have emerged since your interview in March with the writer of the pre-sentence report.
[88] In July 2018 when you met with Ms Sharma, she says you did have insight into the nature of your behaviour and that you were willing to engage in treatment.
[89] At the restorative justice conference held on 24 July 2018 you recognised that your drive to fulfil your sexual needs meant you were not thinking of others. You acknowledged that your daughters had suffered.
61 Leonard v R [2013] NZCA 553 at [8].
The absence of, or failure of, efforts by the offender to address the cause or causes of the offending
[90] Ms Sharma commented that you have insight into your tendency to conceal your problems from your wife and take advantage of vulnerable females whom you can control and coerce to satisfy your sexual desires. I have already mentioned that you expressed a desire to Ms Sharma, as well as Dr Goodwin, to engage in appropriate therapy.
[91] I also note that you were willing to reflect on your use of physical violence as a means of discipline. But you showed less insight into its wrongfulness.
[92] As you have not engaged in prior treatment before, in my view, you have never properly addressed your tendency towards sexual offending. Significantly, in my view, at the restorative justice conference you acknowledged the limits of your current insight saying “I think I understand what I did, but I can’t understand all the consequences”. The treatment available to you will assist you in that regard.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[93] Importantly, Ms Sharma commented that your risks are based on dynamic factors which can be ameliorated by intense and long-term treatment. She recommended a custodial sentence of a sufficient term to allow you to undertake intensive rehabilitative treatment designed to address your offending behaviour.
[94] In my view, you need a lengthy period of treatment to address your predilection towards sexual offending against children.
[95] I accept the Crown submission that this case is finely balanced. In this regard, I note Ms Warren’s observation that there is the ability for the Department of Corrections to apply for an ESO, that is an extended supervision order, (which is a relevant consideration under this factor).62 As the Court of Appeal stated in Grant v R:63
62 R v Parahi [2005] 3 NZLR 356 (CA). See also Grant v R [2017] NZCA 614 at [50]-[53].
63 Grant v R, above n 63.
[52] … the availability of an ESO might tip the scales against the sentence of preventive detention. While not relieving a sentencing Judge from the decision whether or not to impose preventive detention, an ESO has the advantage that, in a finely balanced case, it allows risk assessment to be made at the time a prisoner is to be released rather than pre-sentence.
(Citations omitted)
[96] In my view, these comments are applicable in the context of this case. I am satisfied that a finite sentence will provide the stability and consistency you need to address your tendency towards sexual offending against children. It will provide adequate protection for society.
Result
[97]Mr A, would you please stand.
[98] I sentence you to 13 years and nine months’ imprisonment on each of the lead charges of sexual violation by rape. You are to serve those two sentences concurrently. You are also to serve a minimum period of imprisonment of 50 per cent, that is six years, 10 months and two weeks’ imprisonment on those charges before being eligible for parole.
[99]I sentence you on the remaining charges as follows:
(a)For the six representative charges of sexual violation by unlawful sexual connection – six years’ imprisonment;
(b)For the four representative charges of assault with a weapon – two years’ imprisonment;
(c)For the representative charge of male assaults female – one year’s imprisonment; and
(d)For the charge of attempted sexual violation by rape – four years' imprisonment.
[100] Those sentences are all to be served concurrently and to be served concurrently with the sentences on the lead charges.
[101] When you entered your guilty plea on 12 March 2018, Courtney J gave you a first strike warning and indicated that the warning would be given again upon sentence. I therefore give you the stage one warning again:
Stage one warning
Given your convictions for sexual violation by rape (x 2), sexual violation by unlawful sexual connection (x 6) and attempted sexual violation by rape (x 1) you are now subject to the three strikes law.
I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists the ‘serious violent offences’.
1. If you are convicted of any 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.
2. If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
[102] Because I am imposing a sentence of imprisonment on you today for a qualifying offence under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, you are a registrable offender under this legislation. This means that your name and information relevant to you and your offending will be placed on the Child Sex Offender Register. It also means that you have initial and ongoing reporting obligations under that Act. It is an offence to fail to comply with your reporting obligations without reasonable excuse, or to provide false or misleading information. It is also an offence to apply to register a change of your name without first having obtained the written approval of the Commissioner of Police.
[103] In your case, your reporting obligations will begin when you cease to be in custody. As the conviction involves a Class 3 offence under the Act, you will remain on the register and will have to comply with reporting obligations for the remainder of your life.
[104] You will be given written notice of your reporting obligations and the penalties for failing to comply with these obligations.
[105]Stand down please Mr A.
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