R v Anderson

[2021] NZHC 3396

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-009-001846

[2021] NZHC 3396

THE QUEEN

v

JONATHON WILLIAM ANDERSON

Hearing:	10 December 2021
Appearances:	J E Lancaster for the Crown L L Heah for the Defendant
Judgment:	10 December 2021

SENTENCING REMARKS OF NATION J

[1]    You are for sentence in this Court on a charge of indecent assault of a child under 12, breaching prison release conditions and contravening a protection order.

[2]    I just want to begin by acknowledging the presence of the people in Court who I assume are likely closely associated with the victim. The Court does not have a victim impact statement. That is not surprising given the young age of the victim but you can be sure that, just from the experience Judges have of having to deal with cases like this, we are acutely aware of the anguish that has been caused by offending of this nature and of the effects that it would have on a young child, probably for the rest of her life.

R v ANDERSON [2021] NZHC 3396 [10 December 2021]

[3]    Obviously, with a sentencing like this, the emphasis in all my remarks has to be on what needs to be done with the offender, Mr Anderson. So, it might seem to you that the Court is concerned more with him than with the victim. But, I can assure you that is not how it is. We are acutely conscious of the nature of this offending and the consequence it has had.

[4]    You will gather Mr Anderson from what you have heard from what counsel has said that there are quite a few complexities with this sentencing process. You and others in Court need to know that, before coming into Court today, I had very detailed psychological reports, as well as the pre-sentence report, I had detailed submissions from counsel. So, I have had the opportunity to consider those reports very carefully and obviously counsel have emphasised what they wanted to today in relation to those reports. But, what I am saying now is based on a lot of information that has been put in front of me.

[5]    You have a long record of previous criminal offending. There is a particular concern over your previous sexual offending. In 2005, you were convicted of rape and sentenced to imprisonment for seven years. In March 2018, you were sentenced to imprisonment for 17 months on a charge of indecently assaulting a female over the age of 16. On conviction, you were given a first warning under the three strikes legislation. You were warned that, if you committed another serious violent offence and were sentenced to imprisonment, you would have to serve the whole of that prison sentence without parole.1

[6]    Of the present charges, your most serious offence is the charge of indecent assault. In the particular circumstances, I am going to discuss what sentence would be imposed for that offence if I do not sentence you to preventive detention.

[7]So, I deal with the circumstances of that offending and your culpability first.

[8]    You used to have a good relationship with the victim and her mother, and other children in their family. You frequently visited and spent time with them. On 20 January 2021, you were at their home. You asked the victim to help you with a “job”,

1      Sentencing Act 2002, s 86C(4).

telling her she needed to show you where the “edible garden” was at her school. January is still within the primary school holidays so there would not have been other people at the school at that time.

[9]    You walked with her to the school. On arrival at the garden, you told her you were going to do a “pooh” behind a bush. You told her you wanted her to come to you. She told you she did not want to and that you were being “gross”. You persisted.

[10]   Your victim walked into the bush area and noticed you had taken your pants off. She could see the lower half of your body was naked. She could see your penis. You instructed her to lie down on the ground. She did so on her back. She asked you what you were doing. You told her that you were helping with a job. You got on your knees and pulled her pants down exposing her vagina. You grabbed her legs and pulled them apart. She felt your penis on her leg and thought to herself “what is he doing to me?” She stood up and told you that you were being gross. You told her not to tell her mother what happened or otherwise you might have to go back to jail. She started to cry, pulled her pants up and ran back to her home, telling her mother what happened.

[11]   You first appeared in the District Court on a charge relating to what happened on 25 March 2021.

[12]You pleaded guilty to the charge of indecent assault on 22 April 2021.

[13]   On 15 July 2021, a Judge in the District Court sent you to the High Court for sentencing so the Court could consider imposing a sentence of preventive detention.

[14]   There is no guideline judgment for the commission of an indecent act on a child under 12.

[15]   As to the aggravating features of the offending, the victim’s age is a feature of the offence but the significant difference in your ages is an aggravating feature. You are nearly 30 years older than her.

[16]   The victim was vulnerable because you had enticed her to go with you to a secluded area where she was alone with you and no one could come immediately to

her help. Coupled with that was the breach of trust. You were in a position of trust and were a family friend. She would have trusted you to keep her safe. She should have been able to do so.

[17]   I am satisfied there was significant premeditation. The offending began at the victim’s home when you told her you wanted her to do a job, you got her to take you to her school and then continued with a plan, first going behind a bush and then enticing her to come to you. This was not impulsive or spontaneous offending.

[18]   The form of indecent assault was particularly invasive with you exposing yourself fully to her, lowering her pants, separating her legs and touching her with your penis.

[19]   I infer what happened would have caused her particular emotional harm. She would have been frightened and disgusted by what happened. She must suffer from recalling, even when she does not want to, what she saw you were doing.

[20]   The Crown suggests a starting point for this offending of two years’ imprisonment, with reference to certain cases.2 Your counsel accepted that was appropriate in her written submissions but, today, emphasised that what she had suggested was that the starting point should be in the vicinity of two years. She acknowledged the particular circumstances in which the offending had occurred could justify a sentence in excess of that and referred to a potential increase in that starting point of six months to eight months.

[21]   I consider the starting point suggested by both the Crown and the defence, in their written submissions, did not adequately recognise your culpability in relation to the particular circumstances of this indecent assault. Your penis briefly touched only her leg but, with you having taken your clothes off the lower part of your body and pulling down her pants, the potential for this indecent assault to have escalated into something much more serious was significantly greater than in other cases of indecent assault where all that was intended was the actual indecent assault that occurred. Here, there was the potential for something much more serious, even if there is uncertainty

2      R v M [2009] NZCA 456; R v Parker [2007] NZCA 534; R v Kenny [2013] NZHC 2787.

as to whether that would have actually happened. It may well be that it was only the instinctive disgust your young victim had for what you were doing and her good sense in getting up and running back home which saved both her and you from the consequences of something more serious.

[22]   So, the starting point I would adopt for this indecent assault is 30 months’ imprisonment, that is, two and a half years.

[23]As to this charge, I need to consider matters relating to you personally.

[24]   As I have said, you have two previous convictions for serious sexual offending, as well as an extensive history for offences of dishonesty. This offending occurred only two weeks after you had been released from a sentence of imprisonment and were subject to prison release conditions.

[25]   Your counsel submitted an appropriate uplift to reflect such matters would be four months’ imprisonment. The Crown submitted there should be “a considerable uplift”.

[26]   An appropriate uplift to recognise the dangers arising from your previous criminal history and this offending while on prison release conditions is six months’ imprisonment.

[27]   The only mitigating matter relating to you personally was your guilty plea. This spared the State and, most importantly, the victims of your offending, and I include in that the victim herself and her family, the ordeal of a trial. You are entitled to a discount of 25 per cent to recognise your guilty plea. The credit for that on the initial starting point sentence of 30 months at 25 per cent would be seven and a half months.

[28]   So, with the net adjustment recognising the uplift for your previous criminal history and offending while on release conditions, but with a credit for the guilty plea, the end prison sentence on the charge of indecent assault would be 28 and a half months’ imprisonment.

[29]   I would then have to consider whether a minimum period of imprisonment is required for the purposes of accountability, deterrence and protection.

[30]   The Crown submitted a minimum period of imprisonment of 70 per cent of the end sentence would be appropriate. Your counsel accepts this.

[31]   The minimum period of imprisonment on the indecent assault charge can however be for no more than two-thirds of the end sentence on that charge.3 On a sentence of 28 and a half months’ imprisonment, two-thirds would be 19 months’ imprisonment.

[32]   I note however, and both your counsel and the Crown accept this, that, because this offence occurred after you had received the first strike warning and had been told that if you committed an offence such as this you would have to serve the full sentence without parole, you will not be eligible for parole until you have been in prison for the full 28 and a half months. Because of that, it might be thought that it is not necessary for me to set a minimum term of imprisonment, although the legislation actually requires me to. The Government has announced its intention to repeal the three strikes legislation. It is still early in the legislative process and not possible to know with certainty whether, when and how that will happen. Even if it does occur, I cannot predict how a change in legislation might affect sentences that have already been imposed. Nevertheless, it is possible that, if there is a change in the legislation, there might be no prohibition against the Parole Board considering you for parole before the end of your sentence.

[33]   Because of that possibility and with due regard to s 86C of the Sentencing Act, it is necessary that I stipulate that the minimum period of imprisonment on the indecent assault charge would be 19 months. I would impose that minimum term of imprisonment for the purposes of accountability, deterrence and protection and particularly because you would need at least that time and in fact more in prison, as your counsel has acknowledged and, as she said, you acknowledge you need even more time than that, to take advantage of the programmes that will be designed to reduce the risk of further offending.

3      Sentencing Act 2002, ss 86(1) and 86(4).

[34]   Under the law as it stands, this minimum term of imprisonment would be subject to s 86C(4) of the Sentencing Act. This would require you to serve the whole of the prison sentence of 28 and a half months on the indecent assault charge unless I am satisfied that requiring you to serve the whole of that sentence will be manifestly unjust, given the circumstances of the offending and your personal circumstances.

[35]   The approach to be taken in considering this was concisely set out by Cooke J in R v Rutherford.4 I will set out that summary in my sentencing notes:

[11]  A full Court of the Court of Appeal in R v Harrison outlined the approach taken in determining whether it would be manifestly unjust to impose a sentence without parole. The aim of the manifestly unjust exception is intended to avoid grossly disproportionate sentence outcomes. The case for a finding of manifest injustice must be clear and convincing, but such cases need not be rare or exceptional. The sentence that would have been imposed but for the three strikes regime is relevant to the assessment, as well as the purposes and principles of sentencing under ss 7, 8 and 9 of the Sentencing Act. Overall, the determination is an intensely factual one.

[36]   There has been no suggestion in this case that there would be such an injustice, in fact it has been really submitted by your counsel that you need to be in prison for as long as will be possible with a finite sentence if you are to receive the treatment that you obviously need and to take advantage of it.

[37]   I have regard to the seriousness of the offending, the harm that was done to the child and the danger she was in. I have regard to the way you have failed to learn or take advantage of programmes that you have been involved in when serving previous sentences for sexual offending. There would be no injustice to you if you have to serve a full sentence for this offence instead of being sentenced to preventive detention.

[38]   Because your sentence on the charge of indecent assault would be one of imprisonment, you would automatically be a registerable offender under the Child Protection (Child Sex Offender Government Agency Registration) Act.5

4      R v Rutherford [2019] NZHC 1628, citing R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [108].

5      Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7(1)(a).

[39]So, that is all what would happen if I was to impose a finite sentence.

[40]   I turn now to what would be a finite sentence on the charges of breach of a protection order and breach of release conditions.

[41]   On 26 August 2020, you were first released from prison following conviction on charges of burglary, theft, failure to answer Court bail and failure to answer Police bail. You were subject to release conditions until 12 December 2021.

[42]   On 3 February 2021, you were issued with a direction not to associate with a particular woman unless with prior written approval of a probation officer. You signed that direction.

[43]   On 15 February 2021, you were served with a temporary protection order for the benefit of that person.

[44]   On 24 February 2021, you were at a motel with this person. You were using her cell phone. She asked if she could have the cell phone back. You refused. She attempted to take it from you. You told her if she did not let it go then you would kill her. She yelled for help. You punched her in the mouth with a closed fist. You tried  to stop her from leaving the room by pulling her hair. You were arrested.

[45]   You first appeared in Court on that charge on 10 March 2021 and pleaded guilty.

[46]   On 22 April 2021, you pleaded guilty to the charge of breaching prison release conditions.

[47]   The Crown submit it would be appropriate to deal with these offences with a global uplift for the two charges relating to the same incident. The Crown accepts it involved initial consensual contact between the offender and the victim. The Crown refer to the starting point of 10 months adopted by the High Court on appeal in a case of similar circumstances.6 They suggest an uplift in the vicinity of 10 months’

6      Hamilton v Police [2014] NZHC 2698.

imprisonment would be appropriate. They accept you would be entitled to a 25 per cent discount for your early guilty pleas on those charges.

[48]   Your counsel, Ms Heah, submitted a starting point of six to eight months’ imprisonment for the breach of protection order, and an uplift of two months’ imprisonment for the breach of release conditions would have been appropriate. She also accepted that the sentences for that offending should be cumulative because they are offences of a different kind and in different circumstances from the indecent assault offending. Your counsel acknowledged that, associated with the breach of protection order, was physical violence, a single punch to the mouth with a closed fist. A separate charge of assault on a person in a family relationship remains before the District Court. An application has been made under s 147 of the Crimes Act 1961 on the basis of a plea of previous conviction. The application has been put on hold pending the decision of the Supreme Court on a similar issue in another case.

[49]   You have four previous convictions for breach of release conditions. Your culpability as to both the breach of protection order and the breach of prison release conditions is the more serious because you offended so soon after the protection order had been made and you had been served with the direction that you breached.

[50]   If you are to be sentenced to a finite sentence, the cumulative prison sentence for those offences would be 10 months’ imprisonment, reduced by two months for your guilty pleas, a total of eight months’ imprisonment for those charges.

[51]   Accordingly, if you are to be sentenced by way of a fixed term sentence, that would be for 36 and a half months’ imprisonment overall. If the three strikes legislation continues to apply, you will not be eligible for parole until you have served 28 and a half months’ imprisonment for the indecent assault charge. If that legislation no longer applies, you would have to serve the minimum term of imprisonment on that charge of 19 months. As I said, because of the sentence of imprisonment for the indecent assault charge, you would be on the Child Sex Offender Register for 15 years.

[52]   So, that is now all the background that I must take into account in deciding whether you should be sentenced to preventive detention.

[53]   As well as having the information in the pre-sentence report, I have reports from two psychologists, Ms Kingi and Ms Stringer, obtained under s 88 of the Sentencing Act.

[54]   You have been convicted of the indecent assault charge. You were at least 18 years old when you committed the offence. You were actually 39. It has not been submitted that you are not likely to commit another qualifying offence. So, the qualifying criteria for a sentence of preventive detention are met. Its imposition remains a matter of discretion. As the Crown submit, it is not a sentence of last resort.7 A sentence of preventive detention has a preventive, rather than a punitive, purpose.

[55]   And, I bear that in mind, aware of the matter that has been brought to my attention by Ms Heah, and that you need to understand. If you are sentenced to preventive detention, you will serve a minimum of five years’ imprisonment. If you have a finite, as I have just explained, the sentence will be significantly less than that. But, the purpose of preventive detention is not to punish. It is to protect the community. The sentence of preventive detention is imposed to protect the community from those who pose a significant and ongoing risk to safety.

[56]   Through your counsel, you accept there has been a pattern of serious sexual offending in terms of the conviction for rape in 2005 and for indecent assault committed in 2017.

[57]   You do have a substantial history of convictions for other serious offending, including violence, dishonesty, driving and drug offending.

[58]   The most serious violent offences are an aggravated robbery in 1999 for which you were sentenced to imprisonment for two years, the rape in 2005 for which you were sentenced to imprisonment for seven years, and male assaults female (family violence) in 2013 for which you were sentenced to two months’ imprisonment concurrent with an earlier prison sentence. In 2018, you were sentenced to imprisonment for 17 months on the charge of indecently assaulting a female over 16. As your counsel acknowledges, you received your first strike warning on your

7      R v C [2003] 1 NZLR 30 (CA).

conviction for that offence. At the time, you were sentenced to imprisonment for two months on the charge of assault with intent to injure concurrent with that longer sentence.

[59]   It is of major concern that you have now offended against a child but your most serious previous sexual offence was the 2005 rape.

[60]   It is accepted that your pattern of previous offending has involved real harm to the victims of your offending and thus to the community. Nevertheless, the sentences I have referred to indicate that the harm caused by your offending has not been of a measure associated with more serious instances of such offending and longer prison sentences.

[61]   The maximum sentence on the charge of indecent assault of a child is 10 years’ imprisonment. There was certainly the potential for much greater harm to your last victim, had she not had the courage and awareness to say that what you were doing was gross and to run away.

[62]   I must consider the information that indicates a tendency for you to commit serious offences in the future.

[63]   Both psychologists used a number of tools to assess the potential for you to reoffend. The STATIC-99R and VRS-SO tools indicated there was well above an average risk of further sexual offending. Using the VRS tool, Ms Stringer put you in the high risk category for further violent offending. The PCL:SV assessment indicated there was a high probability of you committing serious violent offences within two years of release into the community.

[64]   The psychologist, Ms Kingi, assessed the risks using the HCR-20 V3 tool. She assessed you as being at a moderate to high risk of sexual recidivism. She noted that you share many of the characteristics of a persistent or life-course offender, including early offending and a range of distorted thinking, such as minimising the seriousness of your offending, blaming others and hostility towards others.

[65]   Ms Heah highlighted the explanation provided by Ms Kingi that the scheme she applied does not attempt to make individual estimates of the specific probability or absolute likelihood of future violence. The scheme is intended to help assessors reach decisions about what kinds of violence an individual might commit, against what kinds of victims and in what circumstances, and then to make recommendations about how to prevent such violence.

[66]   Ms Kingi said “according to the SPJ approach, making individual predictions of violence risk is neither necessary or sufficient for conducting evidence-based violence risk assessment”. That may be so, but that is precisely the sort of assessment a Judge has to make when deciding whether a sentence of preventive detention is necessary.

[67]   Your counsel highlighted Ms Kingi’s reference to it being difficult to predict, with any degree of certainty, that you will reoffend “so long into the future”, as she put it, when you are likely to be sentenced to a lengthy term of imprisonment.

[68]   The term you will serve if you were to be sentenced to a finite term of imprisonment will not however be as long as many such sentences where preventive detention has to be considered.

[69]   As Ms Stringer noted in her report, your risk profile is likely to remain stable until such time as you have demonstrated an ability to apply risk management strategies that you have learnt in offence-specific treatment over an extended period of time. The finite sentence that you would receive is not likely to provide much of an opportunity for you to consistently demonstrate that you have learnt what you need to to avoid further serious violent offending, and have shown that you will do whatever is required to stop offending in the way you have done in the past.

[70]   I must consider the absence or failure of efforts by you to address the causes of your offending.

[71]   When serving your prison sentence for rape, you began participating in a short motivational programme for psychological treatment. In 2012, you attended four

psychological  sessions  but  engaged  at  only  a   superficial  level.     You were not committed to continuing with those programmes or making the most of them.

[72]   In 2017, you attended Odyssey House but were exited after a month because of your aggressive and intimidatory behaviour.

[73]   It is of real concern that the reports indicate you minimise the seriousness of your previous offending and the effects this has had on your victims. You denied raping the victim of the 2005 rape but, even on what you admitted to, that was a serious sexual attack on a woman you did not know. As to the indecent assault and intent to injure in 2017, you claimed the touching of the breast was consensual. You minimised the assault by saying that both you and the victim were having a tantrum.

[74]   Ms Kingi referred to your expressions of remorse over this last offending. She said on previous occasions you appear to have expressed genuine remorse but those expressions of remorse have not been consistent with the way you have gone on to minimise the seriousness of the offending and exhibit hostility to women.

[75]   As the information I have just referred to indicates, when you have had the opportunity to be involved in rehabilitation programmes or therapy that might help you to avoid further offending and protect others from that offending, you have not taken advantage of those opportunities.

[76]   A feature of your serious sexual and violent offending is the way it has been associated with drug and alcohol abuse. The summary of facts for this last offending says it occurred when you were under the influence of MDMA and Ritalin. This offending occurred only two weeks after you had been released from prison. You told Ms Kingi that you were hanging out with members of a gang and using MDMA, methamphetamine and Ritalin. You told her that it was when you were using drugs like this you became more sexually aroused.

[77]   You explained the 2017 offending by saying you had been using drugs and had consumed alcohol. You said, at the time of the 2005 rape, you had taken PCP and drunk alcohol.

[78]   Ms Kingi said, in terms of the risk of further offending, you had placed yourself in the highest risk situation, where you used substances and alcohol knowing that the substances you prefer significantly increase your sexual arousal, which is not satisfied by lawful ways of coping with that arousal. She noted that you understood the pattern of how substance abuse could lead to offending but you had not taken any steps to mitigate “the slippery slope” you were on, even though a safety plan was developed in 2019 and had the oversight of probation services.

[79]   Ms Stringer noted that treatment failure is a significant predictor of both sexual and non-sexual further offending.

[80]   Ms Heah, in her submissions before me this morning, suggested there is always uncertainty about future predictions, there cannot be certainty, but it is a matter of looking at the past to try and predict the level of risk there is for others in the future. And, with all the information that is before me, I can make a prediction as to that. I certainly accept that, as matters stand, there is a significant risk of you committing further serious offending in the future.

[81]   You have failed to properly address your alcohol and drug abuse problems in the past. You have failed to recognise the seriousness of your offending and, most importantly, the harm it has done to other people. You have an attitude towards females that increases the risk of your offending in the future as you have done in the past. The probation officer in the pre-sentence report says you are a very high risk of harm to others, particularly so with women with whom you are in a relationship. But, despite this, there is some glimmer of hope for you. And, this is what Ms Heah emphasised to me in her submissions.

[82]   Ms Kingi reported that, during your sentence for the 2005 offending, you attended 11 treatment sessions on an outpatient basis, and you were considered to be progressing well, with benefits associated with changes in your personal life, including improved family relationships and mood.

[83]   After being charged with this latest indecent assault, you told Ms Kingi that you knew you had to stop your sexual offending and that you had not taken substances since your remand in custody even though you said drugs were available.

[84]   In her report, Ms Stringer said that, after the 2017 offending, you were engaged in four individual treatment sessions with a Department of Corrections psychologist. Despite continuing to minimise the sexual offending which occurred in 2017, you had been able to identify the matters that had contributed to your raping your victim in 2005. You did progress to develop a safety plan to help you to avoid sexual or violent offending. The progress you made and the treatment you were receiving ended so you could focus on your drug abuse difficulties.

[85]   Ms Stringer said you should be reconsidered for assessment for treatment opportunities in relation to recent sexual offending against a pre-pubescent victim. She said you would not currently meet entry criteria to attend the Kia Marama Special Treatment Unit for men for sexual offending against children because of your denial of the index offending, and I took that to be a reference to the rape and the 2017 indecent assault.

[86]   You have however pleaded guilty to the latest charge of indecent assault. Although you claimed to have no memory of what you did with your young victim, you were at least able to express remorse and shame for what you did. You at least said that you believe her account of what you did and you repeatedly said that what happened was solely your fault. When asked to describe the impact of your offending on the victim, you said you did not want to think about it. Ms Stringer said you became tearful at that point due to realising you had sexually offended against a child.

[87]   Ms Stringer said you should also be reassessed for other treatment programmes. She said you meet the criteria for the special treatment unit for men with violent offending and you should also be considered for alcohol and drug treatment such as the drug treatment programme.

[88]   So, the report writers do not entirely dismiss the potential for you, despite all your difficulties, to be involved in treatment or rehabilitation programmes which could

significantly avoid the risk of your further serious violent offending and the significant harm that results from that.

[89]   Because you have not taken advantage of those sorts of programmes in the past, there are doubts as to whether you will benefit from such programmes in the future but the report writers do not discount the possibility that you will doing so.

[90]   Ms Kingi said you are motivated to engage in intensive treatment to reduce the risk because you do not want to continue repeating the cycle of harm to others. Ms Kingi recommends that you engage in the Kia Marama course but that would be available only towards the end of your sentence. In the meantime, she says there are a range of programmes that will be available to you provided your sentence is longer than two years, and it would be with the finite sentence that I have said I would impose. And, your counsel today has said to me that you accept the need to be in prison for long enough to do those programmes and to really work at them in ways that you obviously did not do in the past.

[91]   Where the issue is finely balanced, a finite sentence is to be preferred. You have acknowledged there is a lot of work for you to do to address all the psychological difficulties you face to avoid further sexual and violent offending. Your alcohol and drug abuse is just one part of the picture. As the report writers have said, people who abuse drugs and alcohol can be affected in all sorts of ways but that does not necessarily mean they will rape someone or indecently assault a 10 year old child as you did.

[92]   If you were sentenced to preventive detention, you would have to spend five years in prison at least, and I was told this morning that the Crown would have submitted the minimum period of imprisonment should have been more than that.

[93]   With a fixed term sentence, you will be released from prison before then. You will be subject to release conditions which will no doubt require you to engage in further programmes. For a time, you will have the oversight of a probation officer.

[94]   Importantly, if you have not made real progress in addressing the risks of your offending through programmes that will be available to you in prison, the Department of Corrections will be able to ask the Court to make an extended supervision order. If that happens and an order is made, you will be subject to further oversight from the Department of Corrections. They should be able to ensure there is some protection for those you choose to associate with, particularly anyone with a young child. There will be some further protection for the community through you being on the Child Sex Offender Register.

[95]   So, you will gather, I am not going to impose a sentence of preventive detention. You will now have the opportunity to see if, at the age of 39, you are really going to put the work in to avoid the serious offending that you have been guilty of in the past and the serious harm such offending causes.

[96]Can you please stand.

[97]   On the charge of indecent assault of a child under the age of 12, you are sentenced to imprisonment for 28 and a half months, with a minimum term of imprisonment of 19 months. Having received a warning under s 86C(4) of the Sentencing Act, I note you will be required to serve the whole of that sentence without parole.

[98]   On the charge of breach of a protection order, you are sentenced to eight months’ imprisonment cumulative on the sentence for indecent assault.

[99]   On the charge of breach of prison release conditions, you are sentenced to two months’ imprisonment concurrent with the sentence for breach of a protection order, cumulative on the sentence for indecent assault.

[100]   With the three strikes legislation still in place, I am now required to give you the second stage warning. I will read that out to you but it will be given to you in writing and your counsel will explain it to you as well.

[101]Judge reads strike warning.

[102]   As I said, your counsel will also explain to you what this warning means as well. It is a warning under the three strikes legislation.  Even if that legislation goes, I give you a separate warning which your counsel already acknowledged you are on.

[103]   In the absence of that legislation, you need to know that, if you commit another offence of sexual violence against anyone, man, woman or child, it is highly likely that you will be sentenced to preventive detention.

Solicitors:

Raymond Donnelly & Co., Christchurch L L Heah, Barrister, Christchurch.