R v B

[2023] NZHC 3649

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2021-083-184

[2023] NZHC 3649

THE KING

v

B

Hearing:	12 December 2023
Appearances:	J J Harvey and K D Turner for Crown J H Waugh for Defendant
Judgment:	12 December 2023

SENTENCE OF LA HOOD J

Introduction

[1]                 Mr B1 you appear for sentence today, having pleaded guilty to the following charges:

1      This judgment refers to the defendant as B in order to preserve the victims’ automatic name suppression under s 203 of the Criminal Procedure Act 2011. However, the defendant himself does not have name suppression, which means publication of his name is not prohibited provided any reporting cannot lead to identification of the victims.

R v B [2023] NZHC 3649 [12 December 2023]

(a)three representative charges of sexual violation by unlawful sexual connection.2

(b)two representative charges of sexual conduct with a child under 12;3 and

(c)one representative charge of attempted sexual violation by rape.4

[2]                 Mr B, I have decided that the sentence I am going impose on you today is preventive detention. I will explain how I have reached this conclusion in the following way:

(a)First, I will describe the facts of your offending.

(b)Second, I will assess what your sentence would be if preventive detention was not imposed. That involves a two step process:

(i)the first step is to adopt a starting point that includes the aggravating and mitigating factors of your offending;

(ii)the second step is to assess the appropriate uplifts or reductions from the starting point that reflect factors personal to you.5

(c)Finally, I will explain why I consider it is necessary to sentence you to preventive detention given the risk that you pose to the community.

The offending

[3]                 You are to be sentenced for sexual offending against four victims. It is important that I describe the nature of that offending in some detail, but I reiterate to those present that the victims of the offending have name suppression and that their identities cannot be publicised.

2      Crimes Act 1961, ss 128(1)(b) and 128B – maximum sentence 20 years’ imprisonment.

3      Section 132(3) – maximum sentence 10 years’ imprisonment.

4      Sections 128(1)(a) and 129 – maximum sentence 10 years’ imprisonment.

5      Moses v R [2020] NZCA 296 at [46].

M

[4]                 The most serious offending was against your daughter M. There are three charges that represent prolonged and persistent sexual abuse of M over an eight-year period. These are two charges of sexual violations by unlawful sexual connection, both representative, and one representative charge of attempted rape. The offending occurred between 2010 and 2018, when M was between six and 13 years of age. During most of this time you were living with her in the family home.

[5]                 Between March 2010 and March 2018, you sexually violated M by inserting your penis in her mouth. This first occurred when she was six years old. You instructed M to follow you into a room and you both stood behind a door. You unzipped your pants and put your penis in her mouth. When she gagged, you pushed your penis further into her mouth.

[6]                 From this first incident up until M was 13 years old, you made her perform oral sex on you frequently at each of the numerous places where you both lived, including different rooms at each house. While you lived in [redacted], you sexually violated her in her bedroom, your bedroom, and the bathroom. You did this while staying at your parents’ house in [redacted], and, once, while she had friends over to play. You often ejaculated onto her face and made her swallow your semen.

[7]                 Between 2014 and 2018, you attempted to rape M. You did this frequently and at the numerous places you both lived. You would go into her room when she was asleep and approach her bed without waking her up. You would take off all of her clothes and get on top of her. You would kiss and lick her body and you often tried to penetrate her vagina unsuccessfully. You would ejaculate on her stomach or face. She would try to prevent your penis from penetrating her by pushing her hands into the bed and trying to push up so that you could not get your penis into her vagina. Ultimately, she was unable to offer much resistance because of how much bigger you were than her.

[8]                 Between 2011 and 2018, you sexually violated M by inserting your fingers into her vagina. You would put your hand under her clothes, rub her vagina, and put your fingers into her vagina. You did this frequently and at the numerous places you both

lived. M could not provide the number of times you inserted your fingers into her vagina because it happened so often. She stated that you would do it in every house you lived in, at every opportunity you could. Often, you would do it on the couch in the living room. You made her watch pornography with you and told her you hoped you and her could film pornography.

[9]                 M tried to make noises when you offended against her. She felt afraid and too paralysed to do anything to stop it. You told M to keep it a secret, which she did. You made her think that she was special because you trusted her to keep a secret. You would bribe her by giving her money not to tell anyone. You also coerced and forced her to do what you wanted, including by grabbing and pulling her hair and threatening her. She was afraid of you because you would get angry and yell at her.

[10]             As a result of your the offending, M would often have a very sore vagina for a few days, and she could not urinate properly because of the pain.

N

[11]             Your second victim was N, one of M’s primary school friends while you were living in [redacted]. You committed the offence of sexual conduct with a child under 12 against her.

[12]             N would often come to your house to visit your daughter, M, and would sometimes stay the night. On one such night between 2016 and 2017, you indecently assaulted her by placing your hand on her vagina. N was lying on a bed in the living room, watching a movie with M. You were lying between them. You started rubbing N’s leg. She fell asleep. When she woke up, you attempted to put your hand up her shorts from the bottom. You took your hand away and then put your hand down her shorts from the top. You rubbed your hand around on her vagina. She was frozen in fear and could not move. She was 11 years old.

K and A

[13]             Your third set of sexual offending was against K and her sister, A. You committed the offence of sexual conduct with a child under 12 against K, and the

offence of sexual violation by unlawful sexual connection against A. They were the daughters of your new partner, a woman you began a relationship with in 2019. At that time they were eight and 15 years old, respectively. You would visit your new partner and K and A on weekends on occasions.

[14]             On a weekend night between January and June 2019, you were staying the night with your new partner. You had been drinking alcohol. After your partner went to bed, you went into K’s bedroom. She was eight years old. As she slept, you sat at the foot of the bed and started to stroke her leg over the top of her pyjamas. When she woke up from being touched, you moved the family cat who was sleeping on the bed beside her. You lay on the bed next to her, as she lay facing the wall with her back to you. You put your hand under her pyjamas and rubbed your hands over her bare chest and nipple. As she held her teddy bear to her chest to try and stop you fondling her, you asked her if it felt good. You only stopped fondling her when she left the room to use the bathroom.

[15]             In May 2019, you travelled to the Department of Conservation [redacted] camp, near [redacted], to meet up with your new partner and her older daughter, A. She was 15 years old. That night, you all slept in one bedroom in a cabin at the camp. A stayed on the top bunk while you shared a king single bed with her mother in the same room. You and her mother were drinking alcohol throughout the night. About thirty minutes after A went to bed, you engaged in sexual activity with her mother. As A lay trying to sleep, you stood facing her, with your hand on the rails of her bunk as you received oral sex from her mother who was sitting on the lower bunk.

[16]             A short time later, A’s mother left the room to vomit due to her alcohol intake, and you left the room to smoke. You returned to the cabin and walked over to where A was lying. You put your hands through the railings of her bunk bed and started touching her bottom over the top of her pyjamas. As she pulled away from you, you aggressively pulled the bed covers down. You then forced your hand into her pants and tried to touch her vagina. She told you to go away and began crying. You climbed up the bunk bed ladder and got onto the top bunk with her. As she asked you what you were doing and tried to cover herself with her bedding, you forcefully pulled the blankets off the bed. You held her wrists up against the railing and used your knee on

her thighs to force her legs apart. You pulled her pants down and rubbed your fingers over her anus before forcing your fingers into her vagina. She cried out to her mother to help. Her mother did not respond, being in a deep sleep due to her alcohol consumption.

[17]             A tried to move away from you as you grabbed at her vagina but was blocked by the wall on the other side of the bunk bed. You continued to digitally penetrate her for five to 10 minutes. You then removed your fingers from her vagina and moved your face down between her legs. She tried to close her legs to stop you. You grabbed her thighs and continued to force her legs apart. You were much heavier than her, and used your lower body to pin her in the bed. You then forced your head between her legs and started licking near her genital area with your tongue. Eventually, you stopped and sat up. As you shifted your weight, she was able to push you off the bed. As a result, you slid off the bed and stumbled backwards before getting into bed with her mother, who was still asleep.

[18]Your offending caused pain and bleeding to A’s vagina.

[19]             At the time of your offending against K and A, you were on bail for previous sexual offending against two young girls, one of whom was your other daughter. I will refer to this offending later.

Finite sentence

[20]             I now move to address what finite term of imprisonment would be appropriate if I was not going to impose preventive detention. As preventive detention is being considered, I am required to assess whether a lengthy sentence of imprisonment will provide adequate community protection as an alternative to preventive detention. I consider this requires me to adopt a finite sentence near the top of the available range.6

6      See R v Leitch [1998] 1 NZLR 420 (CA) and Carline v R [2016] NZCA 451 but contrast Moore v R [2023] NZCA 286.

Starting point

[21]             Mr B, your offending was extremely serious. I am now going to talk about why that is.

[22]             First, there is the scale of your offending. Your offending was against multiple victims. Your offending against M amounted to extended abuse over a prolonged period of time. You offended against M in every house you lived in with her, at every opportunity you could. The offending itself was serious every time that it occurred. At the lowest end, your offending involved the indecent touching of K’s chest area. At the most serious end, your offending involved a broad range of persistent and prolonged serious sexual abuse, involving digital penetration, oral connection, penile penetration of the mouth, and attempted penile penetration of the vagina.

[23]             Second, you abused your position of trust and authority. For each of the girls you offended against, you were in a position of trust or authority. You are M’s father. You were the adult in charge when N spent the night at your home. You were a father figure to K and A as the man their mother was dating. You were also in a natural position of authority, being significantly older than each of the young girls you offended against. For the victims, your offending was a gross breach of trust that they were entitled to place in you as an adult and a father figure. For each of them, but particularly for your daughter M, you exploited the natural obedience and trust that followed from that position of authority. In M’s case, the breach of trust was extreme. You showed complete contempt for your obligation as a father to keep her safe.

[24]             Thirdly, all four of the girls you offended against were particularly vulnerable because of their ages and how much older you were by comparison. You offended against A when she was 15 years old, 19 years younger than you. You offended against K when she was eight years old, 25 years younger than you. You offended against N when she was eight years old, again 19 years younger than you. Age in relation to M in terms of comparison with you is largely irrelevant. You were her father. Your offending against her was from when she was six years old until she was 13. Each victim’s youth and size meant they were defenceless against you, a much larger and heavier man.

[25]             The fourth factor is the harm caused by your offending which is significant and enduring. Such harm is inherent in this kind of offending. The victims will likely suffer psychological harm for the rest of her lives, particularly M. N’s victim impact statement, read to the Court today, details the severe impact your offending has had on her. M’s mother has provided a victim impact statement, also read to the Court today, that outlines the devastating impact your offending has had on M and on the family as a whole.

[26]             Finally, your offending was premeditated, persistent and coercive. Your relentless offending against M over the course of much of her childhood is particularly disturbing. You often took steps to get her alone so that you could offend against her. You would go into her room and begin offending against her while she was asleep. You compelled her to stay silent through bribery, anger and threats. You would grab and pull her hair and were rough with her to make her comply with your demands. You repeatedly attempted to rape her causing her pain and preventing her from urinating in the days that followed. Your repeated ejaculation in her face and mouth added further degradation. In addition, the level of force and persistence in your sexual violation of A is also an aggravating feature of that offending.

[27]             The guideline decision for sexual violation by unlawful sexual connection is R v AM.7 The Court of Appeal there set bands for offending for sexual violation where the lead offence is rape, penile penetration of the mouth or anus, or violation involving objects. They are:

Rape Band One: Starting point 6-8 years’ imprisonment. Band One is for offending at the lower end of the spectrum, where aggravating features are not present or only present to a limited extent.

Rape Band Two: Starting point 7-13 years’ imprisonment. Band Two is for offending with moderate premeditation and levels of violence. The band is appropriate with two or three factors increasing culpability.

7      R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.

Rape Band Three: Starting point 12-18 years’ imprisonment. Band Three is for offending involving two or more of the factors increasing culpability to a high degree, such as particularly vulnerable victims, and serious additional violence.

Rape Band Four: Starting point 16-20 years’ imprisonment. Band Four offending will involve multiple offending over considerable periods of time, “the paradigm case of offending within this band is that of repeated rapes of one or more family members over a period of years. Offending of this nature, especially that involving children and teenagers will attract starting points at the higher end of this band.”

[28]             These bands apply to your offending against M, which I take as the lead offence for the purpose of setting the starting point.

[29]             I accept the Crown submission that your offending against M involved the aggravating factors identified in R v AM of premeditation, breach of trust, a vulnerable victim, significant harm, use of threats and violence, and offending of a significant scale involving a significant degree of violation. I also accept the Crown’s submission that these factors place the offending within rape band three and require a starting point of 14 to 15 years’ imprisonment.

[30]             Turning to the starting point for the sexual violation offending against A, the decision of the Court in R v AM established the following bands for sexual violation by unlawful sexual connection (“USC”) that does not fall within the rape bands:

USC Band One: starting point range 2-5 years’ imprisonment: Offending where there are no factors increasing the seriousness of offending. A starting point near the bottom of this band is appropriate. Where one of more of these factors are present to a low or moderate degree a starting point near the top of this band is required.

USC Band Two: starting point range of 4-10 years’ imprisonment: Offending of moderate seriousness involving two or three of the factors increasing culpability to a moderate degree.

USC Band Three: starting point range of 9-18 years’ imprisonment: Offending which involves two or more factors increasing culpability to a high degree for example a particularly young victim or offending over an extensive period. Offending where there is more than three of the factors present to a moderate degree would also fall within this band.

[31]             I accept the Crown’s submission that the offending against A involved the aggravating factors identified in AM of breach of trust, a vulnerable victim, significant harm, and that the scale of the offending and degree of violation here involved force and persistence. I also accept the submission that assessment of these factors place the offending towards the top of USC Band One, requiring a starting point of three to four years’ imprisonment. I consider that, adjusted for totality, an 18-month uplift would be justified for this offending.

[32]             That brings me to your offending against N and K. I accept the Crown’s submission that your actions fit your pattern of predatory behaviour. In relation to N, you placed yourself between the two girls on the bed while they were watching a movie to enable you to offend; and in relation to K, you deliberately went into her bedroom knowing she was asleep to offend against her. Both victims were particularly vulnerable  due to  their  ages.  I  consider that,  adjusted for  totality, an uplift  of   12 months’ imprisonment would be justified for this offending.

[33]             I come to a starting point therefore of 17 and a half years. That is made up of 15 years for the lead offending against M, uplifted by two and a half years for the offending against the other victims.

Personal circumstances

[34]             I now look at your personal circumstances. Some of these circumstances may point to the starting point being uplifted, others will point to it being reduced.

[35]             I am able to impose an uplift for your previous convictions,8 because they “are relevant as an indicator of character and culpability, or because they show the need for a greater deterrent response, or as an indicator of risk of reoffending”.9

[36]             You have previous convictions for sexual offending committed in 2015 and 2018, one of which relates to offending against your other daughter. Those convictions were for unlawful sexual connection against girls under 12. The offending involved you exposing your penis to a friend of your daughter in the kitchen to your home in 2015, then in 2018, blindfolding your six year old daughter and asking her to suck your penis. For this offending, you were sentenced in 2019 to two years of intensive supervision (which included completion of the WellStop sexual offending rehabilitation programme). It also included six months’ community detention, and you were registered on the Child Sex Offenders Register.

[37]             It is notable that your offending against K and A occurred while you were on bail for your first set of convictions.

[38]             I accept the Crown’s submission that that is a significant and relevant matter to  me  setting the  uplift  for your previous  history.  I do not accept  your lawyer   Mr Waugh’s submission that an uplift of six months for these matters would be disproportionate given the sentence imposed for the previous offending and, in fairness to Mr Waugh, I don’t think he pressed the point greatly in oral submissions. Proportionality between the uplift and the sentence on the previous offending is only one factor to be taken into account. I consider the essential question in this case is the extent to which an uplift is required to address the risk you pose to the public. Factoring that in, and of course relevant to that is the offending on bail, I consider a six month uplift is appropriate given the previous offending forms part of a pattern that requires the prioritisation of community protection.

[39]             You are entitled to credit for your guilty pleas.10 Those pleas saved the victims the stress that comes from providing difficult evidence and the anguish of a trial.

8      Sentencing Act 2002, s 9(1)(j).

9      Orchard v R [2019] NZCA 529 at [39].

10     Sentencing Act, s 9(2)(b); and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

However, there was some delay before you chose to plead guilty, entering pleas following resolution discussions. The Crown refers to the passage in Hessell v R where the Supreme Court noted that resolution of charges through plea discussions can itself be a concession and if full credit for plea is then given the sentence may not properly reflect the offending.11 A trial for your offending against M and N was set to proceed in November 2022 but was not reached due to another trial running over. They would have prepared on the basis that they had to give evidence at trial against you. The Crown submits no more than 10 per cent credit is available for this offending. You were then charged with the offending against K and A following which discussions eventually resulted in your guilty pleas. The Crown accept that a full discount is available for the offending in relation to K and A. Taking all these matters into account, I give you an overall credit of 15 per cent for your guilty pleas. That, calculated against the starting point of 17 and a half years’ imprisonment, amounts to two years and eight months’ imprisonment.

Minimum period of imprisonment

[40]             You would normally be eligible for parole after serving one third of the sentence unless the Court imposes a minimum period of imprisonment.12 A minimum period of imprisonment can be imposed where the Court is satisfied that it would be necessary to either hold you accountable for the harm done to the victims and the community, to denounce your conduct, deter you, or protect the community from you.13 I consider that a minimum period of imprisonment of at least 50 percent is required, given these purposes.

Summary

[41]             In summary, if I were to sentence you to a finite period of imprisonment, I would adopt a starting point for your offending of 17 and a half years. This would be uplifted by six months for your previous history. To account for your guilty pleas, I would reduce your sentence by two years and eight months to arrive at an end sentence

11 At [62].

12     Parole Act 2002, s 84(1).

13     Sentencing Act, s 86(2).

of  15  years  four months’ imprisonment.     I would impose a minimum period of imprisonment of eight years to reflect the risk you pose to the community.

Preventive detention

[42]             The Crown submit that the Court should impose a sentence of preventive detention under s 87 of the Sentencing Act. The purpose of preventive detention is to protect the community from offenders who pose a significant and ongoing risk to the safety of the community and it is not for the purpose of punishing you.14

[43]             For the Court to be able to impose preventive detention, three requirements must be met. You must have been convicted of a qualifying sexual or violent offence, have been at least 18 years of age at the time of the offending, and the Court must be satisfied that you are likely to commit another qualifying sexual or violent offence if you are released at your sentence expiry date.15 In assessing this third requirement, the Court must consider the following factors:

(a)any pattern of serious offending disclosed by your history;

(b)the seriousness of the harm to the community caused;

(c)information indicating a tendency to commit such serious offences in the future;

(d)the absence or failure of efforts by you to address the cause or causes of the offending; and

(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection to society.16

If those three requirements are met, the Court must go on to decide whether preventive detention is an appropriate sentence.17

14     Section 87(1).

15     Section 87(2).

16     Section 87(4).

17     R v D [2003] 1 NZLR 41 (CA) at [79].

[44]             The sexual offences for which you are being sentenced today are all qualifying offences.18 You were clearly over 18 years of age at the time of the offending for each of them. I will now address the other factors listed above.

Pattern of offending

[45]             You have a clear pattern of serious sexual offending against children and teenagers arising from prior convictions and the convictions you are being sentenced for today:

(a)From 2010, when you were 24, to 2018, when you were 32, you frequently sexually offended against your daughter, M. You penetrated her genitalia with your fingers, inserted your penis into her mouth, and attempted to rape her frequently over this period of time, while she was between the ages of six and 13.

(b)In 2015, you exposed your genitals to your neighbour’s seven-year-old daughter, who was in your care at the time.

(c)Sometime between 2016 and 2017, you fondled the genitalia of another neighbour’s 11-year-old daughter, who was also in your care at the time.

(d)In 2018, you asked your other daughter, who was six years old at the time, to suck your penis while she was blindfolded by you.

(e)In 2019, you fondled the chest of your new partner’s daughter, who was eight years old at the time.

(f)In 2019, you also sexually offended against your new partner’s other daughter, who was 15 years old, by using force to penetrate her genitalia with your finger and licking her.

18     Sentencing Act, s 87(5).

The seriousness of the harm to the community caused by the offending

[46]             Your offending is extremely harmful to the community, in particular to its most vulnerable members, its children. Not only are the effects of that offending damaging, they are also long-lasting, as we have heard in the victim impact statements that were read to the Court today.

Information indicating a tendency to commit serious offences in the future

[47]             To impose preventive detention, the Court must consider reports from at least two appropriate health assessors about your likelihood of further qualifying sexual or violent offending.19 I have received reports from Dr Jennifer Falce, dated 23 August 2023 and Mr Paul Carlyon dated 25 October 2023. In coming to my decision, I take into account the experts’ opinions, but I must make my own decision as to risk having regard to all the evidence.20

[48]             Dr Falce’s report discusses your lack of empathy, and how you have attempted to minimise and understate your offending—including doubting the truth of the allegations and placing the blame for your offending on the victims. Dr Falce did not consider you have a realistic plan to avoid reoffending, raising your risk. She notes that the fact that some of the offending was committed while on bail is also a risk factor.

[49]             Even more concerning was Dr Falce’s observation that you could not identify anything you have learnt from the WellStop programme that you completed in 2019. Dr Falce’s assessment is that you are at a “concerningly elevated risk of sexual offending again”. She says:

68. Regarding the “tendency to commit serious offences in the future”,  based on my structured professional judgement, Mr [B] is at concerningly elevated risk of sexual offending again. The RSVP formulation identifies the presence of several risk factors for future sexual offending: Mr [B] displays evidence of chronicity, diversity, and escalation of sexual violence; there is also use of psychological and physical coercion. He fits the criteria for sexual deviance in the form of paedophilia. He minimises the harms he has done, and at times questions the veracity of his victims’ allegations, placing blame on both them and other adults such as [Ms T]. I also noted problems with

19     Section 88(1)(b).

20     R v Johnson [2004] 3 NZLR 29 (CA) at [19]; and R v Exley [2007] NZCA 393 at [46].

self-awareness and future planning. Several charges involving serious sexual violence were accrued whilst Mr [B] was on bail, and therefore subject to legal conditions, indicating that supervision has failed.

[50]             Dr Falce notes your offending shows psychological and physical coercion and you do not acknowledge the gravity of the harm you have caused. Any future offending is likely to be against adolescent and pre-pubescent females within the home. Dr Falce holds a low level of confidence that legal conditions or supervision alone will sufficiently mitigate the risk you pose.

[51]             Mr Carlyon’s report similarly notes your lack of remorse, regret or concern for the victims of your offending. Your denial of responsibility can be seen in your attitude to pleading guilty, which you said you did because you “gave up”. Mr Carlyon also comments on your claim that you did not recall your offending, which he considers to be a tactic to avoid engaging.

[52]             Mr Carlyon also found that the WellStop programme provided limited benefit to you, and you continue to show little insight into the factors that might raise your risk of reoffending. That also means you have not developed your coping skills and are not self-aware enough to manage the risk as it arises in the future. You were found by him to be well above the average risk category under the Static-99R assessment tool and under the VRS-SO tool, as follows:

49.   Analysis of Mr [B]’s sexual recidivism risk as indicated by my VRS- SO administration indicated a five-year recidivism risk in the range 27.4% - 43.5%. The 10-year sexual recidivism risk was in the range 41.9% - 56.3%. The base rate for all sex offenders in the prison-based normative sample was 11.9% after five years and 18.2% after 10 years, which indicates Mr [B]’s estimated risk is significantly higher than the base rate.

[53]             Mr Carlyon’s overall assessment, considering the various different processes that he used, was that you are at a well-above average risk of committing further sexual offences against children and young people. The report says:

56. In my opinion, Mr [B] presented with a well-above average risk of committing further sexual offences against children and young people. Mr [B] sexually assaulted six young victims over an approximately nine-year period. He has targeted related and unrelated victims and has engaged in intrusive sexual behaviours despite victim distress and resistance. His offending has occurred in seemingly opportunistic ways, but has, in my opinion, more often reflected planned and proactive behaviour.

[54]             Having regard to the evidence in these reports, the clear pattern of serious offending against six victims over a nine year period, and your lack of insight and coping skills to manage your risk (despite completion of WellStop), I am satisfied that you are likely to commit another qualifying sexual offence if released at your sentence expiry date.21 I consider your risk of committing serious sexual offending in the future to be high. I will now turn to the other factors that go into that assessment.

Absence or failure of efforts by an offender to address the cause or causes of offending

[55]             As is clear from the summaries of the reports above, you are not at the stage where you have begun to successfully address the causes of your offending. As the report writers found, you are still refusing to meaningfully engage with the processes by claiming to have very limited recall of the offending. Further, you appear to have learnt little from the WellStop programme that you have completed. It is also concerning that you committed some of the current offending while on bail for your previous offending.

Lengthy determinate sentence is preferable

[56]             I note that a lengthy determinate sentence is preferable if this provides adequate protection for the community. Whilst not expressly referred to in s 87(4) of the Sentencing Act, the Court should consider the availability of an extended supervision order and whether it would provide adequate protection to the public.22

[57]             I do not consider this is a case where a lengthy finite sentence can adequately manage the risk you pose to the community, nor where I can rely on the future possibility of an extended supervision order (ESO) to mitigate the risk.

[58]             I compare your case to R v Hutchison, where the offending took place against the offender’s stepdaughter from when she was aged three until she was eight years old and involved repeated rapes and sexual violations.23 Preventive detention was imposed and upheld by the Court of Appeal despite there being no previous sexual

21     Sentencing Act, s 87(2)(c).

22     R v Mist [2005] 2 NZLR 791 (CA) at [100]–[101]; and T (CA502/2018) v R [2022] NZCA 83 at

[30].

23     R v Hutchison [2007] NZCA 55.

offending convictions (as compared to your case where there are previous sexual offending convictions) and the expert evidence in that case did not appear to disclose the same level of risk that the expert evidence does in your case. As well, your offending involves multiple victims, a longer time period and the offending against M involved an even greater breach of trust. Although the offending in that case included vaginal and anal rapes, your persistent attempts to rape M seem to have only been thwarted by physical difficulties. The Court in Hutchison said:

[19] Consistent with the significant and ongoing risk requirement a sentence of preventive detention provides the ongoing protection of life parole, and the sanction of recall, which do not accompany a determinate sentence. Hence, as this Court noted in R v Parahi [2005] 3 NZLR 356, a finite sentence to be followed by the available “backstop” of an ESO should not be viewed as “an agreeable alternative” to preventive detention.

[59]             I also note the case of Jenkins v R where, again, the first term of imprisonment imposed was a sentence of preventive detention.24 The offender in that case had not received any treatment, as compared to you having completed the WellStop programme. In that case, Mr Jenkins’ denial of the offending was a determinative factor and together with his deeply ingrained psychopathic traits meant that addressing the causes of offending would be difficult. I accept Mr Waugh’s submission that you have not been assessed for psychopathic traits. However, your minimising of the offending, doubting the truth of the allegations and expressing a lack of remorse or insight into the offending and concern for the victims is a factor that weighs heavily in favour of preventive detention. In the Jenkins case, the relevance of the offender’s psychopathic traits was that it resulted in a similar attitude to the one you hold, making rehabilitation difficult.25 That links back to the concern a sentence of preventive detention addresses. It is not imposed to punish but to protect the community.

[60]             The s 88 reports of Dr Falce and Mr Carlyon both assess you as being at a well-above average risk of reoffending. The targets of your future offending would be young women. The harm of your future offending would be immense. The attitude you have shown to your offending simply does not instil confidence in your rehabilitation. Rather, you show little insight into what caused your offending, the

24     Jenkins v R [2015] NZCA 131.

25     At [41]-[42].

effects it has had on the victims and how you could manage the risk in the future. Preventive detention is appropriate here to ensure you accept responsibility for, and gain insight into, your actions and to foster cooperation with the treatment and rehabilitative efforts that will be available to you.26 Without preventive detention, I do not consider the lengthy sentence I reached above will have the desired effect.27

[61]             I do not impose a sentence of preventive detention lightly. What persuades me is the combination of your pattern of serious offending against the most vulnerable section of the community over a nine year period, the high level of risk that you will commit similar offending in the future, and your lack of empathy, insight or risk management ability despite completion of WellStop. All of this means that a lengthy term of imprisonment and conditions that come attached to an ESO will not be sufficient to address the risk posed by you.28 Preventive detention will be the best incentive-based mechanism to achieve rehabilitation.29

[62]             I note that the real difference between a sentence of preventive detention and a finite term lies in the discretionary element of the preventive detention sentence. You are not destined to spend the rest of your life in prison. Rather, as the Court noted in the case of R v Bryant:30

…the offender controls his own destiny. Successful participation in a course of treatment, such that he will not pose an undue risk to the safety of the community if released, will be determinative of his final release date. The advantage of this incentive by comparison to the situation of a prisoner subject to a finite term is obvious.

[63]             What this means Mr B is that once you no longer pose a risk to the community, you will become eligible for release. That is the incentive for you to begin meaningfully engaging with the rehabilitative process. If you do that, you can begin to address the causes of your offending and how you can manage those risks into the future.

26     Antonievic v R [2017] NZCA 87.

27     Morris v R [2021] NZCA 491 at [42].

28     Contrast Moore v R [2023] NZCA 286 at [73]-[78].

29     Morris, above n 27, at [42].

30     R v Bryant CA236/03 16 December 2003 at [23].

Conclusion

[64]             Mr B, can you please stand. I sentence you as follows. On each of the two charges of sexual violation by unlawful sexual connection relating to M you are sentenced to preventive detention with a minimum period of imprisonment of eight years. On the charge of attempted sexual violation by rape relating to M you are sentenced to seven years’ imprisonment. On the charge of sexual violation by unlawful sexual connection relating to A you are sentenced to three and a half years’ imprisonment. On each of the two charges of sexual conduct with a child under 12 you are sentenced to two years’ imprisonment. All the terms of imprisonment are to be served concurrently.

La Hood J

Solicitors:

Crown Solicitor, Whanganui