R v Anae
[2018] NZHC 197
•20 February 2018
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM 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 2017-004-7564
CRI 2016-092-1949
CRI 2015-004-4048[2018] NZHC 197
THE QUEEN v
SEKOA JOHNATHAN ANAE
Hearing: 20 February 2018 Appearances:
E J McCaughan for Crown M J Kidd for Defendant
Sentencing:
20 February 2018
SENTENCING NOTES OF VAN BOHEMEN J
Solicitors:
Crown Solicitor, Manukau
Counsel:
M J Kidd, Auckland
R v ANAE [2018] NZHC 197 [20 February 2018]
Introduction
[1]Sekoa Johnathan Anae, you appear for sentence after pleading guilty to:
(a)One charge of aggravated robbery;1
(b)Two charges of indecent assault on a person over 16;2 and
(c)Three charges of offensive use of a telephone.3
[2] When you appeared for sentence in the District Court on 16 June 2017, Judge Cunningham was of the view that a sentence of preventive detention may be appropriate and accordingly declined jurisdiction and transferred the sentencing to the High Court. You then sought to vacate your guilty pleas on the basis that you had not been advised that preventive detention was a possible sentencing outcome when you pleaded guilty. However, you formally abandoned this application at callover on 18 October 2017, where Brewer J ordered two health assessor’s reports pursuant to s 88 of the Sentencing Act 2002.
[3] The charge of aggravated robbery carries a maximum sentence of 14 years’ imprisonment and the charge of indecent assault carries a maximum sentence of seven years’ imprisonment. As you have heard, the Crown has asked this Court to consider imposing an indeterminate sentence of preventive detention on those charges. The Crown says this is appropriate because of the seriousness of the offending and the future risk to the community which would follow release after serving a finite sentence, a fixed sentence.
[4] I have read the pre-sentence reports including the reports of the two health assessors, Dr Allan and Dr Skipworth.
[5] I will first outline the offending and establish what would be an appropriate finite sentence, before considering preventive detention.
1 Crimes Act 1961, s 235; maximum penalty of 14 years’ imprisonment.
2 Crimes Act, s 135; maximum penalty of seven years’ imprisonment.
3 Telecommunications Act 2001, ss 112(1); maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.
Circumstances of the offending
Indecent assault
[6] You were residing at the home address of the 16 year old victim of the two incidents of indecent assault, along with the victim’s mother, her partner, and younger siblings. You were there as part of your bail conditions at the time.
[7] On the evening of 25 July 2015, the victim was in her bedroom. You approached the bedroom window from the outside and offered the victim a smoke, and gave her a pipe containing methamphetamine. After the victim smoked some of the methamphetamine you asked if the victim felt funny in a sexual way. The victim was unsure what you meant and so ignored you. You then climbed through the window. You grabbed the victim’s hand and forced her hand down your pants and onto your penis and then touched the victim’s genitalia with your fingers. You left the room when she told you to get out or else she would call for help.
[8] Then a few nights later, 28 July 2015 you called the victim into your bedroom, allegedly to apologise. While in your bedroom, you gave the victim a pipe containing methamphetamine and told her to try it. After the victim had smoked some of the methamphetamine, you approached the victim from behind and wrapped your arms around her, squeezing her against your body and pressing your penis against her, over the top of her clothes. The victim immediately pushed you away. You then took the victim onto your bed, lay her down and rubbed your penis against her genitalia on top of her clothing. It appears she was again able to get away from you. The following morning you sent a number of text messages to the victim urging her not to say anything.
[9] In May 2016, you sent a letter to the victim’s mother saying you would like to apologise for what you had done to her and her family. You then tried to persuade the victim’s mother not to co-operate with police.
Aggravated robbery
[10] On 21 February 2016, you used a phone belonging to Ms Toeke, with whom you were associating at the time, to lure a male victim to an address in Blockhouse Bay. Pretending to be Ms Toeke, you sent a text message to the male victim asking him to come to Ms Toeke’s home address, ostensibly because Ms Toeke was afraid that you would be returning home after you had been bailed. When the victim arrived and entered the house, allegedly to assist Ms Toeke in moving her belongings, you and a co-offender, Mr Lotonuu, entered the room armed with a knife and hammer respectively. You waved the knife at the victim and Mr Lotonuu pointed the hammer at him. Together, the two of you demanded that the victim hand over his possessions and remove his clothes. You took his keys and searched his car, and took from him two cell phones, a grey material wallet, bank and fuel cards, a driver’s license, a t- shirt, a silver bracelet, and half a packet of cigarettes. Your text message to Ms Teoke beforehand showed that there was a level of premeditation in this offending.
Telephone offending
[11] In June 2015, September 2015, and February 2016 you telephoned three people as follows.
[12] On 17 June 2015, you telephoned a female real estate agent and had a short conversation with her relating to her work. That night and the next day you left five voice messages for her describing various sexual acts.
[13] On 10 September 2015, you rang another female real estate agent and described the sexual acts you wanted to perform. When she hung up you called back and left a voice message describing various sexual acts. You then called the agent again on 14 September and again described similar sexual acts.
[14] On 12 February 2016, you woke another woman with a phone call and, breathing heavily, described the sexual acts you wanted to inflict on her. You continued to call the same number over the next two days, often in the early hours of the morning.
The victim impact statements
[15] The young victim of the indecent assault describes the emotional harm she has suffered as a result of the assaults. She feels she can no longer trust anyone, and the offending disgusts her.
[16] The victim of the aggravated robbery has not recovered all of his property. He says he has difficulty trusting people as a result of the offending. He did not stay at his home address for a month; living in hotels and motels, as he thought the stolen license might show his home address.
[17] The victims of the telephone offending describe the emotional impact that the calls have had on them. The offending has made the work of the two real estate agents much more daunting and difficult. The third victim is afraid to be alone at night.
Personal circumstances
[18] You are 47 years of age and of Samoan descent. You were aged 44 at the time of the indecent assaults, and aged 45 at the time of the aggravated robbery. You have 15 previous convictions in New Zealand and 55 convictions in Australia.
[19] You are the oldest of seven siblings. You were born in Samoa and moved to New Zealand when you were seven years old. You moved back and forth to Samoa during your school years. While in Samoa you worked on plantations with family members rather than attend school. You say that while in Samoan you were the subject of sexual abuse. During your time at school in New Zealand you got into trouble for your involvement in fights. You moved back to New Zealand at age 16. You left school without any formal qualifications. In 1990, aged 20, you moved to Australia with your parents and siblings. But you were deported to New Zealand in 2003 after serving a sentence of imprisonment for armed robbery. Your father died in 1997 and your relationship with him was difficult. Your mother and most of your siblings are still in Australia.
[20] You explained to the Health Assessors that you were raised in a strict environment and subject to severe physical punishment by your father, which resulted
in your being hospitalised at age seven or eight. You report being physically abused as a child by family members while in Samoa, as I have said. You report having a good relationship with your mother even though she is in Australia and you are in New Zealand but you are not close with your siblings, largely due to fighting and arguing at home, and your resentment that your father punished you for reasons you say you did not understand.
[21] Your first serious intimate relationship began at age 25, with the woman who is the mother of three of your children (aged 20, 14, and 7). She has been your long- term partner for approximately 20 years. She came back to New Zealand with you when you were deported but she and the children have since returned to Australia. You report having an older daughter to an earlier partner, with whom you have lost contact and another child to a different partner.
[22] You believe that your partner supports you, and this is largely corroborated by the letter from her that Mr Kidd has produced, in which she describes your supportive role as well as the negative impact of your drug and alcohol problems on the family. You say your behaviour deteriorated and your use of drugs increased after your partner returned to Australia in 2015. Mr Kidd and you yourself have again referred to that matter in what was said today.
[23] You recognise that your sexual excesses are exacerbated by substance abuse. In the absence of your partner, you have looked for gratification from other sources, including by imposing yourself on others against their wishes. You have shown little remorse or understanding of the impact of your actions on your victims. I have taken note of your apology today and really urge upon you to try to think about the impact of your actions on others.
[24] In Australia and New Zealand you have struggled to maintain stable employment, with most periods of employment generally being less than a year. These have been interrupted by periods of imprisonment, or ended because of drug and alcohol abuse.
[25] You have 19 previous convictions for violent offending, five of which are in New Zealand, and two previous convictions for sexual offending. You say you do not have any association with criminal gangs and there is no evidence of such association before me.
[26] Your early offending in Australia and New Zealand was, for the most, low- level such as driving offences, property damage, resisting arrest. But it escalated to assault, occasioning actual bodily harm and assault on police. The most significant convictions were those for armed robbery and actual bodily harm in Australia in 1999, for which you were deported after serving your sentence. That deportation has had the consequence of denying you regular contact with your mother, your partner and your children.
[27] After your return to New Zealand you were convicted, in 2004, of your first sexual offence – assault with intent to commit sexual violation, which took place in the context of other offending, namely aggravated burglary and indecent assault. You said you broke into a neighbouring property to steal a television while considerably intoxicated. The victim was a 17 year old female who lived in the house next door. You have continued to deny the sexual element of the offending, saying you fled when you realised what you were doing, despite the sentencing referring to affidavit evidence from the victim recounting how she awoke to found you molesting her as you held a knife to her throat. You were sentenced to a period of six years’ imprisonment.
[28] In 2011 you were convicted of indecently assaulting an adult female at her apartment in Auckland. You knocked on the apartment door and asked for a cigarette. While you and the victim were smoking, you rubbed your groin against the victim’s hip. You then blocked her exit and rubbed your erect penis against her back. You apologised when police arrived and you admitted the offending and said you had not been thinking straight. You were sentenced to eight months’ imprisonment and given your first strike warning.
[29] After release in August 2011, you spent three and a half years in the community with no detected offending. However, in April 2015, you were charged and later
convicted of assault with a weapon, threatening to kill / do grievous bodily harm, and possession of methamphetamine. You were sentenced to one year and 10 months’ imprisonment on 1 July 2016. You were on bail for this offending when you committed the present offences.
Finite sentence
[30] Before considering whether to impose an indeterminate sentence, I must consider what would be an appropriate finite sentence for the offending. In that regard, I must determine a sentence that would condemn your actions, deter you and others from committing similar offences, hold you accountable for the harm you have caused, and protect the community.4 However, I must also consider the prospect of your rehabilitation and integration into society.5
The starting point
[31] As the three sets of offending are discrete in time and nature, the appropriate approach is to set a starting point for each to be imposed cumulatively, before considering whether to adjust the total sentence for totality.
[32] Beginning with the charge of aggravated robbery, there are several aggravating features of the offending which are identified in the tariff decision of R v Mako. The offending bears similarities to the often-cited passage at [59]:6
[59] At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and 3 years. Actual physical enforcement might well require a higher starting point.
[33] That paragraph identifies a starting point between 18 months and three years’ imprisonment for the kind of offending it describes. With no physical violence involved, but two offenders with weapons, your offending indicates a starting point at
4 Sentencing Act 2002, s 7(1)(a), (e), (f) and (g).
5 Section 7(h).
6 R v Mako [2000] 2 NZLR 170 (CA).
the upper end of the suggested range. While the Crown acknowledges that the present offending does not include forced entry into premises at night,7 the Crown nevertheless submits that it is an aggravating feature that the offending occurred in a private dwelling house which the victim had previously visited. However, while the victim was lured into the premises by a trick, he still entered voluntarily. That suggests to me that fact of the offending taking place in a private dwelling house is not an additional factor to be considered. It does, however, indicate a degree of premeditation, along with the use of weapons, and the planning of the intent to confront the victim with the weapons when he entered the house.
[34] There are also parity considerations, as your co-offender was sentenced to two years and four months’ imprisonment on the charge of aggravated robbery, with the Judge selecting a starting point of three years’ imprisonment for the offending. However, because it appears you took the lead in luring the victim to the address by sending the text message, I accept this warrants a slightly higher starting point than that selected in the case of Mr Lotonuu.
[35] In these circumstances, I consider an appropriate starting point for your aggravated robbery offending is three years and two months’ imprisonment.
[36] There is no guideline judgment for indecent assault. While consistency in sentencing is desirable,8 analogous cases are only of limited assistance.9
[37] The sexual offending is serious, as it involved you both touching the victim’s genitalia with your hands and forcing her to touch your penis, with skin to skin contact, but it does appear to be opportunistic, and it happened on two occasions several days apart. The victim was vulnerable, and in imposing yourself on her you committed a gross breach of trust both towards the victim and her mother. She was a young girl living in a home in which you also resided; a home which was giving you the benefit of being out on bail. Supplying the victim with methamphetamine, drugging her in an attempt to make her more compliant, increased her vulnerability.
7 R v Mako [2000] 2 NZLR 170 (CA) at [58].
8 Sentencing Act, s 8(e).
9 Mayo v R [2016] NZCA 34 at [14].
[38] After considering comparable cases, which I outline below,10 I have reached a starting point of two years and four months’ imprisonment for this offending.
[39] There is no tariff decision for offensive use of a telephone. This was serious offending, however, and I take a starting point of two-thirds of the maximum, which is two months’ imprisonment, concurrent for the three charges, but cumulative on the other offending.
[40] This results in starting points of three years and two months for the aggravated robbery, two years and four months for the indecent assault, and two months for the telephone offending. As these sentences are to be cumulative, that would result in a collective starting point of five years and eight months.
10De Reeper v R [2012] NZCA 617: Three charges of indecent assault from three separate incidents: touching victim’s vagina, masturbation in front of victim; touching victim’s vagina; licking victim’s vagina. Premeditation and a gross breach of trust. Starting point of two years' imprisonment was within range.
R v H CA221/05, 17 October 2005: One charge of indecent assault: offender drove 17 year old female cousin to brother's house and began to touch her, kiss her and remove her pants. She resisted, but he pushed her down on the bed and got on top of her. She continued to resist and he desisted. Starting point of two and a half years reduced to of 12–18 months’ imprisonment.
R v Kitching HC Auckland CRI-2008-004-012022, 7 August 2009: Offender entered private room of an 85-year-old woman in elderly care home, pushed up victim’s skirt, tried to push legs apart and touched her genitals. She him away and he stopped. An element of premeditation as he had come to the premises the day before. Starting point of two years' imprisonment was considered appropriate.
Hishon v R [2016] NZCA 558: Starting point of four years was upheld for indecent assault offending that involved multiple instances of offending against five separate victims and included two representative charges.
R v Miki T30906 HC Auckland, 29 April 2004: Three counts of indecent assault to young child in family home late at night, skin to skin touching, accompanied by a punch to the head. Sentenced to 21 months’ imprisonment.
Adjustments for personal circumstances
[41] The Crown seeks an uplift of at least six months’ imprisonment for your previous offending. There is recent High Court authority in favour of applying an uplift for previous offending even when an offender is to receive a second strike.11 The Crown seeks a separate uplift of three months’ imprisonment for the fact that you were on bail at the time you committed the offences.
[42] While acknowledging the history of your violent offending, and your two previous convictions for indecent assault offending, I must also be cautious not to punish you a second time for crimes for which you have already served sentences. Together with the fact that all the offending occurred while on bail, and noting the particular repugnance of the indecent assault on the young victim occurring at your bail address, I consider that a combined uplift of six months’ imprisonment for both previous offending history and offending while on bail is appropriate.
[43]This would result in a sentence of six years and two months’ imprisonment.
[44] As there are no other personal mitigating factors, I next turn to your guilty pleas. You pleaded guilty on the morning of trial to the aggravated robbery, and on the morning of trial for indecent assault, and ten days before trial for the telephone charges. The guilty pleas were not at the earliest opportunity but they did spare the victims from having to give evidence and they saved the time and expense of the trials. Overall, I consider you are entitled to a 10 per cent discount for your guilty pleas, a reduction of eight months.
[45] This results in an end finite sentence of five years and six month’s imprisonment. In accordance with s 85 of the Sentencing Act 2002 I must then consider the totality of the sentence to ensure the cumulative sentences do not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. I am satisfied that a finite sentence of five years and six months’ imprisonment is not wholly out of proportion to the gravity of the offending.
11 Palalgi v Police [2015] NZHC 1832; R v Peri [2015] NZHC 3221.
Preventive detention
[46] Next I must consider whether instead of this finite sentence I should impose an indeterminate sentence of preventive detention. Unlike a finite sentence, preventive detention is not about deterrence, punishment and accountability. Rather it is designed to protect the community. It requires the assessment of the future risk of offenders who pose a significant and ongoing threat to the safety of others.12 Preventive detention means that a prisoner who actively engages in rehabilitation may be released on parole, but may be recalled to prison at any time. The offender remains under the control of the Department of Corrections for the rest of their life.
[47] Both the aggravated robbery and the indecent assault charges are a qualifying offence under the legislation.13 I must therefore assess whether you are likely to commit another qualifying offence if you were released at your sentence expiry date.14 I will consider that alongside the five factors which the Sentencing Act says I must take into account when considering whether I should impose a sentence of preventive detention.15 As noted, I have reports by health assessors to assist me in assessing these factors: including one from Dr Jeremy Skipworth, and one from Dr Rosie Allan.
Discussion
[48] The Court of Appeal in Carline v R described the difficulties posed in sentencing defendants whose offences are at the lower end of the spectrum in terms of seriousness but whose recidivism creates a serious risk of harm to their communities:16
[21] … There is no doubt that Mr Carline's offending caused distress to his victims and had a psychological impact. It must be accepted, too, that there is a risk that he will reoffend upon release, even allowing for completion by him of the ASTOP programme. On the other hand none of his previous convictions has resulted in a sentence longer than 12 months' imprisonment. There has been no offence that involved significant or long lasting physical consequences. Without minimising the effect of Mr Carline's offending on his victims, we are not satisfied that the seriousness of his offending justifies the sentence of preventive detention.
12 Sentencing Act, s 87(1).
13 Section 87(2).
14 Section 87(2)(c).
15 Section 87(4).
16 Carline v R [2016] NZCA 451 at [17].
[49]There are also relevant statements in the decision in R v Burkett:17:
[21] There is incongruity in the situation in which, because of the type of charges laid and the manner in which they were dealt with, the appellant faced a finite sentence of five years maximum (subject to any allowance for his early guilty plea), yet also was exposed to the indeterminate sentence of preventive detention with the consequent [minimum term of imprisonment]. The very disproportionality invites careful consideration of the need for the blunt instrument response of preventive detention.
[50]However, the Court went on to state:
[22] We hasten to add that should we be of the view on assessment of the overall picture that protection of the public demanded such a response, we would not be deterred solely by the relative lack of seriousness of the most recent offending. However, when addressing the protection of the public it is appropriate to bear in mind what it is that there is concern to protect from. Where it is from potential serious offending of a violent or invasive kind, there must be greater reluctance to risk alternative sentencing approaches. In the present case the type of offending of which there is a real risk of recidivism is not in that category. It is to be noted that in the 22 years since the offending began it has not progressed to more serious conduct, nor is there indication of any tendency towards violence. The psychiatric opinion is that the risk of violence is low.
(emphasis added)
[51] There is some similarity in your offending between that considered by the Court in the Burkett decision. I do not accept the assessment of Dr Allan that the sexual offending has definitively escalated. Your previous offending involving indecent assault are relatively similar in nature, and, if anything, the 2003 offending involving a knife was more serious than in 2011 outside the apartment. Nonetheless, the reports do consider that the risk of violence and sexual recidivism is assessed at high.
[52] Another case of preventive detention for indecent assault is R v T.18 The Court of Appeal specifically considered the purpose of protecting the community in the case of recidivist sexual offending. The Court stated:
[22] The purpose of the indeterminate sentence of preventive detention is not punitive but is rather to protect the community. Its availability as a sentencing option reflects society's need to protect itself against recidivist sexual and violent offenders. Nevertheless the punitive effect of the sentence
17 R v Burkett CA416/00, 21 February 2001.
18 R v T CA125/02, 19 July 2002.
requires a careful examination by the Court of the seriousness of the offending against which preventive detention will provide protection, as a factor relevant to public safety and therefore the exercise of the sentencing discretion.
[53]There are also pertinent comments of the Court of Appeal in R v Parahi:19
[86] …the test may be met in an appropriate case even where the relevant offences are indecencies, as opposed to sexual violations. But that is because of the seriousness of the cumulative effect on the lives of their past victims and the likelihood of seriousness of future effect on the lives of future victims. Such cases are likely to be exceptional and will usually turn on persistent, knowing behaviour, despite firm warnings (although that is not an absolute prerequisite) accompanied by the necessary cumulatively serious harm. The sentence will not be appropriate to get indefinitely out of the way those whose conduct, although a nuisance, does not qualify as serious. It would be quite wrong to resort to the sentence as, in effect, a ‘street cleaning’ exercise.
[54]I turn now to consider each of the five factors identified in the Sentencing Act.
Any pattern of serious offending disclosed by the criminal history
[55] Both Dr Skipworth and Dr Allan, and the Crown in their submissions, note your propensity to violence and also to indiscriminate and opportunistic sexual offending, often the two being interconnected and fuelled by drugs and alcohol. In terms of risk to the public, both health assessors put greater weight on the pattern of indiscriminate sexual offending.
[56] The most serious sexual offending is that in 2003 against your neighbour, in which you held a knife to the throat of the victim to secure compliance, and against the victim in 2015, in which you attempted to use methamphetamine to make the victim more compliant. The indecent assault the woman in her apartment in 2011 was less serious, as reflected in the sentence of eight months’ imprisonment that was imposed. The telephone offending, while sexual in nature and forming a part of your sexually motivated offending, cannot be considered as serious, although the impacts on its victim are significant.
19 R v Parahi [2005] 3 NZLR 356 (CA).
The seriousness of the harm to the community caused by the offending
[57] It goes without saying that the use of violence to secure compliance carries with it the risk of serious harm to the community. Your violent offending has to date not resulted in serious harm to the victims, despite the use of weapons and threats. However, the indiscriminate nature of your sexual offending, targeting both strangers and those known to you is very troubling. I have already referred to the victim impact statements, which capture the harmful psychological effects of this offending which the victims have struggled to overcome. Both assessors note, certainly Dr Skipworth noted, you had shown little concern or understanding of the impacts of your actions on the victims. Even your apologies after the event have had overtones of coercive and self ex-culpatory behaviour looking to justify what you did and to avoid responsibility rather than showing true remorse for the impacts on others.
Information indicating a tendency to commit serious offences in the future
[58] This next consideration is closely related, if not identical, to the qualifying criterion of the likelihood of committing a qualifying offence upon release from a finite sentence.
[59] Dr Skipworth applied two tests to assess the risk of violent reoffending. First, the HCR-20, which identifies 10 historic, relatively static factors, and five clinical items which are more dynamic, and five future risk items which relate to future plans. Of concern was your substance abuse, relationship instability and lack of personal support, lack of insight or motivation to acknowledge and work to reduce identified areas of risk, and relatively brief periods in which you have been in the community after release, the longest being three and a half years. Second, the VRS requires ratings of 20 dynamic risk factors and six static risk factors, which categorised you as medium risk of violence.
[60] Dr Allan also used the VRS tool, and her assessment placed Mr Anae in the high-risk category for violent recidivism based on 14 dynamic factors identified as moderately or strongly related to your current violence risk. The report noted that those factors could provide a baseline for change if you were prepared to engage in treatment. Dr Allan also used the LS/CM tool designed to assess the level of service
intervention to manage the risk of further offending, and considered a high level was required.
[61] Dr Skipworth notes that your sexual offending in 2011 and against your most recent victim in 2015 has elements of frotteruristic disorder, which involves sexual arousal to touching or rubbing against a non-consenting person, and that while this reveals different types of sexual deviancy you do not appear to have a paedophilic disorder. You have not targeted very young people. Dr Skipworth used the STATIC 99R instrument based on static risk factors known to be associated with sexual recidivism in adult males. This placed you in the high-risk category as a result of the previous violent and sexual convictions, non-contact sexual offending, and the victimisation of both strangers and unrelated victims.
[62] Dr Skipworth’s report informs me that you did not (at least then) acknowledge any sexual deviancy and minimised or denied aspects of the violent offending. However, in Dr Allan’s report eight days later, you are reported as demonstrating acceptance of the present offending, albeit with minimisation, indicating, in Dr Allan’s opinion, that you are at a stage of change warranting treatment. I also take note in this regard with your apology to the Court today. Dr Skipworth notes that while it is not necessary to impose an indeterminate sentence to address these risks, an indeterminate sentence is the only mechanism to ensure that treatment gains and risk reduction occur prior to your next release. These are points that Mr McCaughan also made to me.
The absence or failure of efforts by the prisoner to address the cause of the offending
[63] Dr Skipworth says it is clear you have not completed an intensive supervision programme for any of the identified areas of need in New Zealand and that you would benefit from adult sex offender programme. But for that to be appropriate and accessible you have to accept responsibility for your actions and acknowledge what you have been doing. Dr Skipworth also considered that the risk of sexual offending is exacerbated by your use of methamphetamine, cannabis and alcohol. You yourself have acknowledged that, and Dr Skipworth notes your commitment to treatment is uncertain, but that successful completion of the Department of Correction’s “dependency treatment unit” programme would mitigate future risk. There is some
uncertainty as to whether you have completed a similar programme in Australia but, in any event, you have continued to abuse substances and to offend.
[64] In conclusion, under this category, you can be categorised as a person who has not been subject to attempted treatment, rather than a failure or inability on your part to successfully comply with the treatment, although to this point that has been undermined by a reluctance to engage in any treatment.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[65] In many cases, a finite sentence, combined with a tailored treatment programme and extended supervision is likely to provide sufficient protection to the community. The factor that, somewhat curiously, tells in favour of this working for you is that are there have been no significant attempts at rehabilitation:
(a)You have served three sentences of imprisonment, and have yet to commit to rehabilitative treatment.
(b)You were referred to the Drug Treatment Unit at Waikeria Prison in 2007, but you were removed because you tested positive for cannabis.
(c)You subsequently attended Community Alcohol and Drugs Services in 2016 for amphetamine abuse. You attended the first four sessions, and then were discharged when no further contact was made.
(d)In November 2016, you were accepted to receive the support of the Grace Foundation upon release from custody, although it is not clear if this is still available.
(e)In November 2017, you completed an AoD Brief Programme, and a Meth and Me four hour programme. This is not a clear case of prior unsuccessful attempts at treatment.
[66] It seems that there has not been an adequate concerted attempt to secure treatment for you or an adequate commitment on your part to take advantage of programmes that are available.
[67] Those factors suggest to me that some form of supervision may mitigate risk to the community provided we can be confident that you yourself will make the commitment to engage. However, they are also factors which suggest such a regime would not provide the community with a sufficient level of protection:
(a)As Mr McCaughan said a finite sentence of five years’ imprisonment with reductions for time served may not provide adequate time to engage adequately and positively with rehabilitative options. There is no guarantee that very strict conditions imposed under extended supervision would provide an adequate measure of community protection, and there is argument that incarceration for as long as necessary to see a rehabilitation programme completed, followed by lifetime parole and recall provisions, is more likely to give the necessary level of protection.
(b)You also lack personal support networks in New Zealand. You have had a long relationship with your partner, who speaks highly of your ability to be a good father and loving husband, but she is resident in Australia and you are not able to go there.
[68]Other factors that tell in your favour are:
(a)You have not received any previous warning that you would likely be sentenced to preventive detention if you re-offended, and this is a factor also in your favour, although it is not a determinative factor.
(b)The offending is at the lower end of the seriousness of sexual offending, and the victims were not highly vulnerable children, although in this most recent offending it comes close. It does cause serious harm to the
individual victims, who have had to live with a sense of violation and intrusion.
[69] Balancing all of these matters, I can understand how the conclusion could be reached that there is a serious risk that you will continue to offend in a similar manner and that an indefinite sentence gives protection to the community and an incentive to actually complete the rehabilitative programmes available.20
[70] Nonetheless, I am not persuaded that this is a case where preventive detention is appropriate.
Summary
[71] The repeat offending, despite periods of imprisonment, albeit not at the most serious level, combined with your current reasonably high risk assessment, as well as the emotional harm to the victims, denials of offending, and the fact you may well be released without engaging in treatment after a finite sentence are factors to be taken into account. Conversely, the relatively limited number of convictions for sexual offending, the comparatively moderate seriousness in terms of sexual offending, and the lack of strong evidence pointing to failure to comply with rehabilitative programmes weigh against those. I, on balance therefore, have reached the conclusion that a term of indefinite detention would not be appropriate on this occasion.
[72] In reaching that conclusion, I am guided by the Court of Appeal authorities referred to above and also by the decision of the Court of Appeal in Grant v R, in December last year, in which the Court made specific reference to s 107B(2)(a) of the Parole Act 2002 which enable a Court, when satisfied that an offender has a pervasive pattern of violent offending and is at a very high risk of committing a relevant violent offence in the future, to place supervisory conditions on an offender while in the community for a specified period of time. As the Court noted in that decision, while not relieving a sentencing Judge from the decision of whether to impose preventive detention, an extended supervision order has the advantage that in a finely balanced case (and I regard this as a finely balanced case) the option of extended supervision
20 R v Bryant CA236/03, 16 December 2003.
orders allow risk assessment to be made at a time the prisoner is released rather than pre-sentence. 21
[73]For these reasons, I have reached the decision that I have already indicated.
Result
[74]Mr Anae, would you now please stand up.
[75] Mr Anae, you have avoided an indefinite sentence by a narrow margin, and I must warn you that if you offend in a similar manner again, this Court may well consider that preventive detention is the only sentence which will ensure the community is protected. I strongly urge you to engage in the rehabilitative options available to you in prison. Your ability to find employment despite your periods of incarceration does you credit. Now that you are in your late forties, despite the obstacles you have and will continue to face, you are in control of your own destiny. Receiving treatment for substance abuse and sexual offending will help you reconnect with your family, so you can be present in the lives of your partner and children. You can make this sentence a turning point, so that you can start a new chapter in your life. But it is up to you. You may have had a difficult childhood but the responsibility is now yours and you cannot look to make excuses for your behaviour. You have to make choices, and those choices will determine the outcome.
[76] I sentence you to a period of imprisonment of five years’ and six months’, on the following basis:
(a)On the charge of aggravated robbery, I sentence you to three years’ imprisonment.
(b)On each of the two charges of indecent assault, I sentence you to two years’ and four months’ imprisonment. Those sentences are concurrent with each other, but cumulative on the sentence for aggravated robbery.
21 Grant v R [2017] NZCA 614 at [52].
(c)On each of the three charges for the telephone offending, I sentence you to two months’ imprisonment. Those sentences are concurrent with each other, but cumulative on the sentences for aggravated robbery and indecent assault.
[77] I record that the Chief Executive may apply for an extended supervision order under the Parole Act 2002 upon completion of your sentence.
[78] Because both aggravated robbery and indecent assaults are serious violent offences making this is your stage-2 offence, under s 86C of the Sentencing Act I am required to order that you serve that sentence in full, without parole, and warn you that if you are convicted of any serious violent offence in the future, regardless of whether it is of the same kind as the present violent offence, you will be sentenced to the maximum period of imprisonment to be served without parole unless that would be manifestly unjust. As you are aware, this is now strike two under the Three Strikes regime. Your counsel has made submissions about the fact that that regime has been questioned publicly but for the moment, that regime continues and the Court must apply it. I must therefore say that in addition to the warnings I have already given you, that this is now your final warning which will explain the consequence of another serious violence conviction. You will be given a written notice outlining these consequences which lists these serious violent offences.
[79] If you are convicted of any serious violent offence, other than murder or manslaughter, then you will be sentenced to the maximum term of imprisonment for each offence. That will be served without parole or early release unless it would be manifestly unjust.
[80] If you are convicted of manslaughter, committed after this warning, then you will be sentenced to imprisonment for life. The Judge must order you to serve at least 20 years imprisonment unless the Judge considers it would be manifestly unjust to do so, in which case the Judge must order you to serve a minimum of at least 10 years imprisonment.
[81] If you are convicted of murder after this warning, then you must be sentenced to imprisonment for life and the Judge must order you to serve the sentence without parole unless it would be manifestly unjust to do so. If the Judge finds that it would be manifestly unjust to do so then he or she must impose a minimum period of imprisonment of at least 20 years, unless that would be manifestly unjust, in which case the Judge must sentence you to a different minimum period of imprisonment.
[82] If you are sentenced to preventive detention you must serve the maximum term of imprisonment of the most serious offence for which you are convicted, unless the Judge considers that would be manifestly unjust.
[83] That is my sentence Mr Anae, and I urge you very strongly to take note of the strong counselling to you, to take advantage of the rehabilitation mechanisms that are available to you and do not come back before this Court for this kind of offending.
[84]You may stand down.
van Bohemen J
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