R v Adams

[2018] NZHC 1386

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PROHIBITED BY S 202 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-1604

[2018] NZHC 1386

THE QUEEN

v

TAGA DAVID KEEPA ADAMS

Hearing:	12 June 2018
Counsel:	F Culliney and S Teppett or Crown J O’Halloran for Prisoner
Judgment:	12 June 2018

SENTENCING NOTES OF WHATA J

Solicitors:           Meredith Connell, Auckland

R v ADAMS [2018] NZHC 1386 [12 June 2018]

[1]                  Mr Adams, you have pleaded guilty to one charge of burglary,1 one charge of aggravated wounding2 and one charge of abduction for the purpose of unlawful sexual connection.3

[2]                  You have been given your first strike warning. I now turn to sentence you on these charges. The Crown has sought a sentence of preventive detention. I therefore propose to sentence you in two parts. First, I will fix a finite sentence. I will then turn to consider whether you should be subject to a sentence of preventive detention.

Facts

[3]You have pleaded guilty to a summary of facts which are as follows.

[4]                  At about 2.00 pm on Monday, 13 February 2017, you saw the victim of your offending out walking. You drove ahead and lay in waiting for her to pass. As she did, you violently placed her in a headlock and began to choke her. She was unable to scream as she was being held by her throat so forcefully.

[5]                  You then dragged her a short distance to your car. You opened the passenger side door of the car and pushed her head first into the foot-well of the front passenger seat. She screamed, and in response, you choked her to stop her screaming. She was unable to breathe during this choking. When you released your grip, she screamed again. In response to this, you gouged her eyes with your fingers, pushing your fingers deep into her eye sockets. She stopped screaming due to the pain she was suffering from this action. You then drove away with the victim stuck in the passenger foot- well.

[6]                  As you drove away, you used a free hand and touched the victim’s genital area on the outside of her clothing. You then pushed your hand beneath her shorts and underwear and for a short time touched her on the skin in the area around her left hip and front area of her pelvic bone.

1      Crimes Act 1961, s 231(1)(a); the maximum penalty for which is 10 years’ imprisonment.

2      Section 191(1)(a); the maximum penalty for which is 14 years’ imprisonment.

3      Section 208; the maximum penalty for which is 14 years’ imprisonment.

[7]                  At this point the victim said to you, “Please don’t kill me.” You continued to drive on. You had driven less than a kilometre when the victim grabbed the door handle and opened it as the car was underway. She took the opportunity and rolled herself out of the car as it travelled down the road at speed.

[8]In a subsequent interview, you admitted it was your intention to rape her.

[9]                  The victim sustained injuries to her forehead, haemorrhaging to her eyes from the gouging, and deep cuts on her right elbow and a number of lesser abrasions over her body.

[10]              In terms of the burglary offending, about two hours after the abduction, you entered a house without permission. You made your way to the bedroom of the householder and stole several pairs of female underwear.

Personal Circumstances

[11]              I now turn to your personal circumstances. I have the benefit of a PAC report together with psychiatric reports by Dr Karayiannis and Dr Pillai.

[12]              Mr Adams, you are a 32-year-old man of Ngāti Maniapoto. You are a father of two young children, though I understand they are not in your care. You were raised by adoptive parents. Unfortunately, your childhood was marred by violence, alcohol and drug abuse. You self-report physical and sexual abuse as a young child and by fourteen you were incarcerated in a youth facility for assault. On release you gravitated to gangs, first, Black Power and then the Killer Bees.

[13]              Over the course of the next 15 or so years you accumulated numerous convictions including for a stabbing (in 2005), theft, wilful damage, burglary, common assault, assaults on a police officer and wounding with intent. The worst offending occurred in 2009. It included wounding in the context of a burglary, offending for which you received a sentence of seven years and two months’ imprisonment in 2011. That offending involved entering residential premises, waking the female victims and physically assaulting them. You were on parole for this offending at the time of the

present offending. Indeed, you were released on 16 November 2016 and, as noted, the present offending occurred on 13 February 2017.

[14]              In your dealings with the PAC report-writer, you presented as distraught and remorseful. You expressed awareness of a distorted perception of the world, hatred for women and desire to offend both violently and sexually. The report-writer notes that you have a genuine awareness of the risk of harm you present to others, how you feel about the offending and what you are capable of. It is noted that prior to your release on parole for previous offending, you had completed a departmental programme (medium intensity rehabilitation programme and drug treatment unit) and undertaken approximately twenty sessions on a one-to-one basis with a departmental psychologist.

[15]              The psychiatrist reports examine in depth your background and your offending. Both conclude that you present a high risk of violent and sexual offending. Multiple tools of assessment were used by them to reach this conclusion. In combination, your upbringing, prior violent offending, self-reported attitudes (especially toward women), maladjustment, drug and alcohol abuse, and the seriousness of the harm caused by your offending contribute to your high-risk profile. It is necessary to mention at this point that you admitted to having thoughts of raping the victims of your previous assaults and raping the victim of the abduction.

[16]              Both psychiatrists also agree that you would benefit from violence prevention treatment, and alcohol and drug treatment and Dr Pillai notes that you have not yet had the opportunity to participate in a psychologically-informed programme to address your patterns or pathways to violence.

[17]              It is, however, altogether clear that both psychiatrists favour an indeterminate sentence  as  a  preferred  mechanism  to  manage  the  risks  presented  by  you.     Dr Karayiannis put it this way:

While it is not necessary to impose an indeterminate sentence to address these risks, I note that an indeterminate sentence is a mechanism to ensure treatment gains and risk reduction occurs prior to his next release.

[18]Dr Pillai similarly observed:

… due to Mr Adams’ lack of internal controls, unstable mental health and addictions, and entrenched pro-violence and pro-criminal attitudes, the prognosis for sustained risk reduction is guarded. Long-term support and supervision will likely be necessary to substantially mitigate the risk of future offending.

[19]              Before concluding this summary, it is necessary to note one key point of difference between the assessment of Dr Pillai and Dr Karayiannis. Dr Karayiannis records in his assessment of 5 April 2018 that you did not acknowledge any sexual deviancy and minimised your offending. However, Dr Pillai’s subsequent assessment records, as does the PAC report, that you have acknowledged and taken ownership of your offending.

Victim Impact Statement

[20]              I wish now to mention briefly the victim and her statement. Her statement is thoughtful, plainly an honest narrative, free of exaggeration. Unsurprisingly, the offending has had a lasting physical and emotional impact. She also notes the financial cost to her of the offending, and that she cannot afford to pay for therapy. The consequences of the offending affect her everyday life. She continues to live in fear and is always wary of what is happening around her. Most telling, she describes herself as feeling “small and fearful”, and “insignificant in my own life”. She is deeply tired of feeling this way.

Determinate Sentence

[21]With this background in mind, I turn now to address my sentence.

[22]              I must sentence you in accordance with the purposes and principles of the Sentencing Act. Accountability for the harm done, promoting a sense of responsibility in you, denunciation and deterrence, protection of the community and your rehabilitation appear particularly, though not exclusively, relevant to your sentence.

[23]              I commence my sentencing analysis by identifying a starting point for the lead offending, being the abduction charge. In fixing the starting point, I note the following aggravating features of your offending:

(a)The level of violence was high – it involved eye-gouging and repeated attempts at choking the victim;

(b)The victim was vulnerable – she was walking alone when you attacked her;

(c)The level of harm was significant – the physical harm, including the injuries caused when the victim escaped, was substantial and long- lasting, while the emotional harm was very significant and likely permanent; and

(d)The type of abduction was serious – this was not a fleeting abduction with minimal violence – the victim was forced into a car where the prospects of escape were slim and, as events unfolded, dangerous.

[24]              For completeness, the summary of facts referred to acts of indecent touching. But you were not charged for these acts. Nevertheless, as Ms O’Hallaran accepts, they are aggravating features of the offending.

[25]              This combination of aggravating features takes it outside the lower end of spectrum for offending of this kind, for example, the offending in R v McVeigh where the offenders failed to bundle the victim into a van.4 I also consider the abduction offending in this case to be more serious than the abduction offending in R v Henson where a starting point of seven years and six months was adopted for a lengthier though less physically violent abduction of a young girl.5 That case also involved actual sexual offending, but notably the offender in that case received an uplift for sexual offending of three years. The facts in Tahitahi bear some similarities to the present case. 6 It involved a violent abduction on a street followed by sexual violation. An eight-year starting point was adopted in that case. In that case, however, the abduction did not involve bundling the victim into a car with an admitted intention to rape. In my view, the abduction offending was materially worse in the present case, but the sexual violation was clearly materially less significant. Finally, a starting point

4      R v McVeigh [2014] NZHC 1936.

5      R v Henson [2016] NZHC 1543.

6      R v Tahitahi [2008] NZCA 549.

of nine years was adopted in R v Bond, which involved an attack on a woman out running, punching her to the head several times, violently bundling her into a car and then after she attempted to escape, tying her up and placing her in the boot.7 She too escaped by leaping from the car. Overall the offending in that case was slightly more serious than the offending here.

[26]              Given the foregoing, I am satisfied I should adopt an initial starting point of eight years. The fact that you were on parole at the time of the offending is a further aggravating factor, as is the fact you have a reasonably long history of non-sexual violent offending. An uplift of 12 months is appropriate for both these factors. This takes the starting point to nine years. Finally, there must be an uplift for the totality of your offending, including the burglary offending. I do so by six months.

[27]              Accordingly, the start point for a finite sentence is nine years six months imprisonment.

[28]              For completeness, separate sentences of two years for the burglary and two years for the aggravated wounding, both to be served concurrently with the sentence for the abduction, would need to form part of any sentence.

[29]              I turn then to provide for mitigating factors. Your counsel initially observed that there were no personal mitigating factors. She qualified her view in submissions to me. The reports show that you are clearly remorseful for the harm that you have done and that you acknowledge you have a major problem. It is important to recognise this remorse. Further, it is necessary to fully contextualise your offending by reference to your upbringing. It is not hard to see that the harshness of your childhood years has had a lasting impact on you and indirectly contributed to your offending. This is important because there is good reason for hope that a process of rehabilitation may be directed to, and modify, these causative factors. I afford you a 10 per cent discount for these matters. You must also receive a 25 per cent discount for your early guilty plea.

7      R v Bond CA302/95, 8 November 1995.

[30]              In combination, were I to impose a determinate sentence, I would fix it at six years and five months’ imprisonment. Both counsel initially agreed that a minimum term of imprisonment of 50 per cent is required, having regard to the seriousness of the offending. I have come to the view, however, that a lengthier minimum term is required given the risks presented by you. A 60 per cent minimum term is justified.

[31]              I turn then to consider whether a sentence of preventive detention should be imposed.

Preventive detention

[32]              In considering whether to impose a sentence of preventive detention, I must take into account the following:8

(a)Any pattern of serious offending;

(b)The seriousness of the harm to the community caused by the offending;

(c)Information indicating a tendency to commit serious offences in future and the absence of, or failure of, the efforts by the offender to address the cause or causes of the offending; and

(d)The principle that a lengthy determinate sentence is preferable if this provides adequate protection to the community.

[33]In terms of these factors, I am satisfied that:

(a)Your offending may properly be described as a pattern of serious offending, commencing with a stabbing while you were still young, another stabbing in 2005, the burglary and wounding offending in 2009, and, finally, the present offending.

(b)The harm caused by your offending is clearly serious.

8      Sentencing Act 2002, s 87(4).

(c)You present a substantial risk of both violent and sexual reoffending having regard to your self-reported and diagnosed frailties, including substance abuse, impulsivity, cognitive distortion, and a history of unstable intimate relationships characterised by violence.

(d)Your previous attempts at treatment have, for the most part, failed.

[34]              Balanced against this, the present sexual component of your violence is a first for you. It is also relevant that while you admit that you intended to rape the victim and self-report that you have thought about doing so on other occasions, you have not in fact committed any proven acts of actual sexual violation. Furthermore, as Dr Pillai noted, you have not yet had the opportunity to undertake a treatment plan specifically designed to meet your needs. I also note that Dr Karayiannis, while clearly supporting an indeterminate sentence as a risk-mitigation strategy, did not consider that it was necessary to impose an indeterminate sentence to manage the risks presented by you. Furthermore, your self-reporting is a factor in your favour – it signals a preparedness to confront your violent propensity. Finally, as noted by the Court in R v Parahi, it is relevant to note that Corrections has several mechanisms, including extended supervision orders, that might be deployed to mitigate the risks presented by you.9

[35]              In the result, Mr Adams, I consider that it is too premature to conclude that you present an unmanageable risk of reoffending. Two factors, in particular, drive this conclusion. Your violent offending, while revealing a pattern, does not reveal a repeated pattern of sexual offending. Secondly, you have not benefitted from a treatment plan specifically directed to your needs. These were factors identified by the majority in the Court of Appeal in McDonald favouring a lengthy determinate sentence rather than preventative detention.10 In that case, the offender faced multiple sexual violation charges and had admitted to more than 30 prior sexual assaults. The fact that he had not previously participated in a sexual treatment programme, his disclosure of his prior assaults and the gaps in his history of offending favoured a determinate sentence.

9      R v Parahi [2005] 3 NZLR 356 (CA) at [87].

10     R v McDonald [2009] NZCA 248.

[36]                 I am therefore satisfied that a lengthy prison sentence, combined with a minimum term, together with the prospect of extended supervision if you continue to present a risk on release, provides sufficient protection of the community.

[37]              For completeness, your risk, Mr Adams, is materially different from the risk presented by Mr Antonievic, who was subject to a sentence of preventive detention. 11 This morning Crown counsel tabled his case to me, a case involving an appeal to the Court of Appeal which was declined. In his case, however, the assessment placed him at a very high risk of sexual reoffending and his personal history was marked by idealisation of grave harm to women. He also faced a much more severe sentence, one involving sexual violation by rape. He also presented as a prisoner who was not likely to be amenable to treatment.

[38]              Mr Adams, please stand. On the charge of abduction for the purpose of sexual connection, I sentence you to six years and five months’ imprisonment. You must serve 60 per cent of this sentence. On each of the charges of burglary and aggravated assault, I sentence you to two years’ imprisonment to be served concurrently with the lead sentence.

[39]You may stand down.

11     Antonievic v R [2017] NZCA 87.