R v Bond

[2016] NZHC 2561

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-009-001438 [2016] NZHC 2561

THE QUEEN

v

DEVON CHARLES BOND

Hearing:	26 October 2016
Appearances:	C J Boshier for the Crown A S Greig for the Defendant
Judgment:	26 October 2016

SENTENCING NOTES OF NATION J

[1]      Mr Bond, you may be seated.

[2]      I  have  had  very  detailed  reports  from  now  three  psychologists  and  a psychiatrist, including one who is engaged by your counsel.  I have had very detailed written submissions from the Crown and from Mr Greig and they have referred me to various cases which I have to consider.  So, obviously, I have had ample time to think very carefully about what has to be done in this situation.  So, I am going to give my sentencing remarks now.

[3]      As you will understand and as those who are in Court will understand from what  you  have  already  heard,  there  are  a  number  of  matters  that  need  to  be considered very carefully for me to impose the sentence that is appropriate in this instance and so I am taking considerable care in what I’ve got to say.  It will take me

a little bit of time.

R v BOND [2016] NZHC 2561 [26 October 2016]

[4]      Mr Bond, on 2 May 2016 you pleaded guilty to six charges under the Crimes Act 1961.  On the charge of aggravated burglary, that is unlawfully entering a home with a weapon, the maximum penalty is 14 years’ imprisonment.  On the charge of assault with a weapon by threatening the victim with a knife, the maximum penalty is five years’ imprisonment.  On the charge of abduction, which involved tying up your victim and restraining her so you could have sex, the maximum penalty is 14 years’ imprisonment.   There are three charges of sexual violation involving three sorts of violation, including rape.  On each charge the maximum penalty is 20 years’ imprisonment.

[5]      I have to determine what an appropriate finite sentence would be and if, instead  of a  sentence for a definite  term,  you  must  be sentenced  to  preventive detention.  In my sentencing notes, I will refer to other judgments of the Court that I have considered but do not speak of in these remarks.

[6]     I begin by acknowledging the victim of your offending.   She showed considerable courage as she suffered this attack.  Her victim impact report read to me is a distressing, direct but eloquent account of how your offending has changed her life, created a new normal which she has had to live with for the past 20-odd years and which, as she says, will go on forever.  I also acknowledge her perceptiveness in the way she sought to explain how you could attack someone in such a vicious way and of the difference between the way in which you were able to live free of the consequences of your offending for so many years while she continued to suffer.  I also acknowledge the determination and strength she has shown in ensuring that what you did would not ruin her life.

[7]      This offending occurred at about 1.00 am on 9 May 1994.  Your victim was a

42 year old woman, residing by herself.  She had moved into her new home just 10 days previous. You and your victim were not known to each other.

[8]      She was asleep in her home by herself.   She woke when she heard a loud click and thought there had been a power-cut.  The noise was in fact you manually turning off her main power in the garage.  As she moved about the house, she saw the shadow of a man crouching down, moving towards the garage door.  She went

back to her bedroom, put on more clothing and was considering calling 111 when you opened the door from the garage.  You were wearing dark clothing and a mask or balaclava that covered your face and head.  You held a five to six inch knife in your right hand.

[9]      You held the knife against the victim’s throat, told her to be quiet and do as you said.  You made her lie down on her bed, stomach down, tied her hands tightly behind her back with a portion of cord cut from her clothes line, put a pillowcase from  her  pillow  over  her  head,  removed  her  tracksuit  pants  and  then  sexually violated her in three different ways.  When you had finished, you took the contents of her handbag, valued at $300.   You asked her where the phone was, ripped the telephone cord from the socket and then threatened her as you left.   You left the house via the garage.  The victim managed to free herself and ran to neighbours for help.    The  Police  were  called.    You  were  not  identified  as  the  offender  until December 2014 through a cold-case DNA match.

[10]     In this sentencing, I must take into account that almost a year later, on 30

May 1995, you abducted a 37 year old woman.  She was a stranger to you.  You had watched her previously as she ran along the river, something she did regularly at

6.00 am.  As she ran near you, you leapt up and punched her.  There was a struggle. You had your hands around her neck.  You dragged her 180 metres to your vehicle, pushed her into the car and drove off. When she tried to get out, you stopped the car, removed her top and used it to tie her hands behind her back.  She tried to run away but you caught her, pushed her into the boot of the car and drove off.  Somehow she untied herself, released the boot lock and jumped from the moving car.

[11]     You ultimately received a sentence of seven and a half years’ imprisonment after pleading guilty to a charge of taking away a woman without her consent, with intent to rape her.1   On being apprehended, you admitted that when you attacked the woman it was with the intention of raping her.   You did state that your original intention was to observe her undressing but, because you had been surprised by her on the stop-bank, you lost control of the situation.  You admitted having an issue

with wanting to watch women undressing without their knowledge.   During your

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

sentencing the Judge noted ways in which you objected to the way your intention to rape had been referred to.  That is a denial you have maintained subsequently.  Of course, when you were apprehended on that charge and when you were sentenced, no one knew how you had been involved in the home invasion and rape of a stranger on 9 May 1994.

[12]     The Police obtained a DNA sample from you as a result of your committing three offences on 6 December 2014.   You and workmates had attended a boxing event at a working men’s club.  You and members of the group were behaving in a rowdy fashion.  Some Police officers intervened.  Having heard evidence, the Judge found that you were very intoxicated and very hostile, yelling abuse and profanities at the Police officers.2    You ended up in a struggle with a Police constable.   The Police constable said that, as he lay there, you deliberately stomped on him, hitting him on the head.  After a defended hearing, you were found guilty of behaving in a

disorderly manner, resisting the constable in the execution of his duty and assaulting the constable in the execution of his duty.

[13]     You first appeared in Court on these charges on 13 February 2015.  You were granted bail on 23 February 2015.3    There was a hearing in the High Court on 10

August 2015.  Through your counsel, you argued that at your trial the Crown should not be permitted to call evidence as to the May 1995 abduction offence.  When the High  Court  ruled  on  13 August  2015  that  such  evidence  could  be  called,  you appealed that decision to the Court of Appeal.4    In a judgment of 29 October 2015, the Court of Appeal upheld the ruling of the High Court.5

[14]     The trial had been scheduled to take place on 21 September 2015.  The DNA evidence from ESR was made available to you on 23 July 2015.  In August 2015, the High Court agreed to your request for the trial to be put off to allow a DNA expert to examine the ESR findings.   The Court was told your expert would not be able to begin his work until 24 August 2015.   I presume the results of his work were

available within a month or so of that time.

2      New Zealand Police v Bond [2015] NZDC 13425.

3      New Zealand Police v Bond [2015] NZDC 2630.

4      R v Bond [2015] NZHC 1915.

5      Bond v R [2015] NZCA 488.

[15]     On  14  December  2015,  the  High  Court  confirmed  these  charges  would proceed to trial on 2 May 2016.

[16]     Your counsel said in his written submissions, and it has been confirmed to me in Court today, that he indicated to the Crown you would be pleading guilty if it became apparent you could not challenge the DNA evidence.  You did not however do that until about three weeks before trial. You pleaded guilty on the date scheduled for the start of your trial, 2 May 2016.  For about 14 months after your victim was told you had been identified as the offender, she had to live with the uncertainty of a pending trial, and no doubt the return of memories, feelings and thoughts which for years she must have wanted to put to the back of her mind.

[17]     In arriving at an appropriate starting point for this offending, I must first consider the aggravating and mitigating features of the actual offending.  There are no mitigating features.  There were the following aggravating factors which, in terms of the guideline judgment of R v AM, increase culpability.6

[18]     Your offending involved planning and premeditation.  You must have “cased out” your victim’s home.  You brought a knife and balaclava with you and turned off the power mains before entering her house and confronting her.  The use of a knife involved significant premeditation.  You have told two of those who have provided reports to the Court and to your counsel, that you were not someone who normally carried a knife.  The Court of Appeal has said that taking steps to get a victim alone is  predatory  sexual  behaviour  which  is  more  serious  than  impulsive  sexual

violation.7

[19]     Your offending included a night-time home invasion, a level of detention and violence exceeding that which is inherent in any sexual violation offending.   The unlawful  entry  into  the  victim’s  home,  tying  her  up,  covering  her  face  with  a

pillowcase, use of a weapon, threats, disguise of a balaclava, turning off the power

6      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

7 At [39].

mains and disabling phone lines, all involved serious forms of intimidation.  These factors all significantly increased the seriousness of the offending.8

[20]     Your offending has caused significant psychological and physical harm to the victim, as she described in her victim impact statement.

[21]     I have regard to the guideline judgment in R v AM.  Because the victim did as you  demanded,  the  level  of  associated  violence  was  limited  but,  with  the premeditated  home  invasion,  detention,  threats  of  violence  and  presence  of  a weapon, I consider your offending would be at the lower to middle end of band 3 for rape, 12 to 18 years’ imprisonment.

[22]     I have considered whether the starting point has to be reduced because this offending occurred in 1994.   The maximum penalty for rape at that time was 20 years’ imprisonment, as it is now.  As the maximum sentence has not changed, as stated by the Court of Appeal, the guidelines set out in R v AM are to apply to this offending.9

[23]     Your counsel has accepted the starting point suggested by the Crown of 13 to

14 years is appropriate.

[24]     I  adopt  a  starting  point  for  this  offending  of  14  years’  imprisonment,

consistent with similar cases.10

[25]     I must then consider whether there must be an adjustment to that starting point for aggravating or mitigating features relating to you personally.  Potentially, there is a significant aggravating feature in that, within a year of this offending, you were involved in the violent assault and abduction of a woman who had been on a run near the Ashley River.  Your counsel suggested in his written argument that this

should not be taken into account on the basis this offending was historic and because

8      At [38]-[41]; see also Sentencing Act 2002, s 9(1)(a)-(b).

9      R v AM, above in 6; see also R v W [2006] 23 CRNZ 531 (CA) at 538.

10     R v Palmer [2000] 1 NZLR 546 (CA); R v Ngawhika HC Auckland CRI-2010-092-6946, 12

November 2010; R v Johnston CA402/94, 20 March 1995; R v Abdulhussein CA 175/01, 7
February 2002; R v Waretini HC Hamilton CRI-2009-019-8137, 9 July 2010.

it occurred after the offending for which you are being sentenced now.  In advancing that argument, he referred to the Court of Appeal judgment in Penman.11

[26]     In  Penman,  the  offender  was  being  sentenced  for  three  sexual  violation offences which occurred in November 2010.  The Court of Appeal held there should not have been any uplift for a conviction of indecent assault that had occurred 37 years earlier.  The 1995 offending with you is relevant because of its proximity to the

1994 offending for which you are being sentenced.   It is also relevant because of what the offending says about you personally in relation to the offending for which I have to sentence you.

[27]     In R v Tutty, the Court of Appeal stated that events that have transpired during the intervening period between offending and  sentencing could provide possible grounds for a reduction in sentence.12   The factors, such as lack of offending during the  intervening  period,  acknowledgment  of  previous  offending  and  attempts  to amend the situation for a victim, were factors relevant to a determination of the appropriate sentence.  Potentially, those factors might reduce the need for deterrence.

If events after the offending can be taken into account for the benefit of the offender in this way, then subsequent events may be relevant as suggesting an increase by reason of the need for deterrence.

[28]     In R v Accused, the Court of Appeal discussed to what extent, if at all, there should be a credit for the fact that the offender had an unblemished record for the 25 year period which had elapsed since offending had occurred in the early 1970s, that he had worked hard during that period and successfully raised a new family.13   The Court noted that, while the victims had continued to suffer from this offending over that period, there had been no expression of remorse by him for the trauma they had

suffered,  that  he had  taken  full  advantage  of his  freedom  in  both  a social  and financial sense and never took steps to confront his problems over the intervening years or to attempt to address the wrongs he had inflicted on his victims.  The Court of Appeal held that, while the need for personal deterrence may have diminished or

disappeared, there were no factors which displaced the application of the principles

11     Penman v R [2015] NZCA 364.

12     R v Tutty [1998] 3 NZLR 165 (CA).

13     R v Accused (CA463/97) (1998) 15 CRNZ 602 (CA).

of denunciation and general deterrence in determining the appropriate sentence.  The same can be said here with regard to your failure to do anything to accept responsibility or make amends for your 1994 offending and the harm you did to your victim.

[29]     I consider an uplift of 12 months is appropriate on account of the particular need for deterrence given your 1995 offending, while acknowledging the period since when you have not further offended.14

[30]     Your  counsel  says  that,  although  you  pleaded  guilty  at  the  latest  time possible, the Crown was on notice that, if you accepted the DNA analysis, you would plead guilty.  The Supreme Court in Hessell v R said the maximum discount for a guilty plea should be 25 per cent but the extent of this credit may be reduced having regard to the strength of the evidence against you and the lateness of the entry of a guilty plea.15   I accept the Crown’s submission that, with the DNA evidence and the propensity evidence from the 1995 abduction being available to support the Crown case, the evidence against you was very strong so that your guilty plea was a matter

of your simply facing up to the inevitable.  There was a considerable delay in your entering a plea of guilty.  Although you claim to have no memory of the events of 9

May 1994, on all the information, I am sceptical as to that.  Through the delay in entering a plea of guilty, you put the Police and the Crown to all the expense and trouble involved in preparing for a trial.

[31]     Most significantly, you left your victim in a state of uncertainty as to how the charges would ultimately be dealt with and whether she would have to give evidence about what had happened to her.  You dealt with these charges in a way that would allow you to spend the maximum time you could in the community.

[32]     You have acknowledged to the report writers the way your victim would have suffered through what you did and have said that, having a daughter, you now know

and can see how she would feel about it.  However, there is little indication in the

14     In  R  v  Ngawhika, above  n  10,  Rodney Hansen  J  considered  an  uplift  of  two  years  was appropriate where  the  defendant had  been  previously convicted on  eight  counts of  sexual offending involving a step-daughter over a nine year period.  The offending with that victim had occurred both before and after the offending for which Mr Ngawhika was being sentenced.

15     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

reports that you acknowledge the true nature of your offending and that you take full responsibility for it.

[33]     Your guilty pleas did,  nevertheless,  avoid a trial and thus were of some benefit.  I adopt a discount on account of your guilty pleas and limited expressions of regret of 15 per cent.  Rounding times out, that would result in an end sentence of 12 years and nine months.

[34]     The Crown submits this is an appropriate case for a minimum period of imprisonment to be imposed under s 86 of the Sentencing Act 2002.  As a result of the Sentencing Amendment Act 2004, the Court may impose a minimum period of imprisonment where it is satisfied the period otherwise applicable under s 84(1) of the Parole Act 2002 is insufficient to satisfy all or any of the purposes specified in s

86(2) of the Act, namely, holding the offender accountable, denunciation, deterrence and the protection of the community.  Prior to that amendment, the offending also had to be “sufficiently serious” in that the circumstances took the offence “out of the ordinary range of the particular kind”.16

[35]     Your counsel argues that you must be sentenced on the basis of the maximum penalties that were available at the time of your offending.  He argued in his written submissions that, to sentence you to a minimum term of imprisonment would be contrary to the important principle that legislation should not be applied retrospectively.

[36]     Section 152(2) of the Sentencing Act gives s 86 retrospective effect, enabling the imposition of a minimum period of imprisonment for offending that pre-dated the enactment of the Sentencing Act.17   This section provides that a minimum period of imprisonment cannot be made for an offence committed before 30 June 2002 unless it was a “serious violent offence” as defined in s 2 of the Criminal Justice Act 1985. The Criminal Justice Act defines sexual violation (in respect of which a determinate

sentence of more than two years’ imprisonment is imposed on the offender) as a

16     Sentencing Act 2002, s 86(2)-(3), replaced and repealed by s 7 of the Sentencing Amendment

Act 2004.

17     Section 152(2) does not apply to offending which occurred before the introduction of MPIs on 1

September 1993 (the commencement date of the Criminal Justice Amendment Act 1993): Davies v R [2011] NZCA 546, [2012] 1 NZLR 364 at [27].

serious violent offence. The Court had jurisdiction to impose a minimum period of imprisonment for a serious violent offence after 1 September 1993 through the enactment of the Criminal Justice Amendment Act 1993. This pre-dated your offending.18 You are therefore eligible for a minimum period of imprisonment.

[37]     I am satisfied the particular circumstances of this offending took it out of the ordinary range of the offending of the particular kind so that the sufficiently serious test that applied before the amendment of 2004 would have been satisfied.  I am also satisfied that a minimum sentence is required to hold you accountable and for the purposes of denunciation, deterrence and the protection of the community.  Pursuant to s 84(1) of the Parole Act 2002, without a minimum term, you would be entitled to seek parole after one third of your sentence.   I consider that term would be insufficient.

[38]     On the basis of a finite term of imprisonment of 12 years and nine months, it would be appropriate to sentence you to a minimum term of imprisonment of eight years.

[39]     The Crown submits, and strongly, that instead of imposing a finite term of imprisonment I should sentence you to preventive detention and I now have to deal with that carefully.

[40]     Because this offending occurred in 1994, you must qualify for a sentence of preventive detention under both s 75 of the Criminal Justice Act and s 87 of the Sentencing Act.  With regard to s 75, at the time of the 1994 offending, you were aged 27. You could however be sentenced to preventive detention under s 75, only if the Court was satisfied that it was expedient for the protection of the public that you be detained in custody for a substantial period.  Under s 75(3A), the Court also has to be satisfied that there is a “substantial risk” that you would commit a specified offence upon release.  Such offences include rape (now sexual violation), attempt to commit rape (now attempted sexual violation) and assault with intent to commit

sexual violation.

18     Davies v R above n 17; R v Brown [2002] 3 NZLR 670 (CA).

[41]     Under s 87(2)(c), I must be satisfied that you are likely to commit another qualifying sexual or violent offence if released following a finite sentence.   The qualifying offences include sexual violation, attempted sexual violation, assault with intent  to  commit  sexual  violation  and  abduction  for  the  purposes  of  sexual connection.

[42]     A sentence of preventive detention has a preventive, not a punitive, purpose. It is to protect the community from those who pose a significant and ongoing risk to its safety.

[43]     Even if you meet the qualifying criteria for consideration of a sentence of preventive detention, whether or not it is imposed remains a matter of discretion. Preventive detention is not a sentence of last resort.

[44]     It is appropriate for me to consider whether the grounds referred to in ss 75 and 75(3A) are made out by reference to the matters in s 87(4).19   I must consider the reports provided to the Court by two psychologists.  I also have the report provided to your counsel now by the psychiatrist, Dr Barry-Walsh.  The final assessment of whether you will commit a further qualifying sexual or violence offence is a judicial one, and hence for me.

Any pattern of serious offending disclosed by your history

[45]     I deal firstly with any pattern of serious offending disclosed by your history.

[46]     Your problems with antisocial behaviour go back to when you were a child, including cruelty to the family cat through setting fire to it.  You were placed in the care of the Department of Child, Youth and Family before you were  10 due to stealing, vandalism and running away.

[47]     You told Ms Beach and Mr Prince that your first significant relationship with a woman of four and a half years ended when you were aged 26.  Shortly after this, you assaulted the woman and a bystander preparing to assist her.  That would have

been in about 1992.

19     The approach taken by Rodney Hansen J in R v Ngawhika, above n 10.

[48]     In your offending of May 1994, you exhibited arrogance, the willingness to resort to violence and threats of violence to obtain sexual gratification.   More significantly, you used your victim to vent anger you felt towards others and your frustrations and disappointment with all of your circumstances at the time. After she was tied up and you had the pillowcase over her head, and while you were removing her tracksuit pants, she asked you why you were doing this.   You replied “you bitches are all the same”.

[49]     During the course of the struggle you had with the victim after the 1995 attack, you had your hands around the victim’s throat from behind and must have squeezed them with sufficient force to get her to a point where she thought she was going to lose consciousness.  After she rolled away, you managed to get your arm around her neck and throat and dragged her backwards 180 metres to your car.  The throttling of a victim is potentially life-threatening.   It is also significantly intimidating  and  often  considered  to  be  a  brutal  way  for  a  male  to  physically dominate his victim.

[50]     The 1994 and 1995 offending occurred, according to the pre-sentence advice to courts report, when, in your own words, you went “off the rails” after being injured and so unable to compete as a wrestler at a Commonwealth event.  You have said you became involved in excessive alcohol and drug use, became involved with a gang as a “debt collector” and for other people that required, as you put it, “some muscle”.   You became involved in growing and selling cannabis, displayed high levels of volatility and got involved in fights to the extent that you told the report writer you had been stabbed 11 times.  You told Mr Prince that your 1994 offending occurred when you felt like a failure and felt you had let your community down.

[51]     Ms Beach’s opinion is that, where you experience rejection, feel controlled or humiliated, you are likely to respond with heightened physiological arousal and to produce  behaviours  that  are  an  attempt  to  regain  a  degree  of  control  over  the situation such as violence and other intimidatory behaviour.   She considered that, with the 1994 offending occurring shortly after the end of your first significant relationship and the end of your wrestling career, it could be seen as your response to

being in a negative emotional situation which you were unable to cope with in a socially acceptable manner.

[52]     The way  you  acted with  both  your victims  in  1994  and  1995  put  them seriously at risk.  Your victim in 1995 was understandably so afraid of the situation she was in, that she jumped out of the boot of a moving car so as to suffer lacerations and bruising.  She had to be admitted to hospital.  In 1994, you entered your victim’s home armed with a knife. You say at the time you were under the influence of drugs. You expressed real vindictiveness towards your victim and women generally.  Had she physically resisted, there would have been a real danger you would have used even more force than you did.  The situation put her at risk of serious physical harm, apart from obviously the rape and sexual violation that she endured.

[53]     Had the Court known of your 1994 offending when you were sentenced for the 1995 abduction, I am sure you would then have been sentenced to Preventive Detention.

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

[54]     In  both  your  1994  and  1995  offending,  the  physical  and  psychological damage done to  your victims was significant and prolonged but there was  also damage to the wider community through the fear and distrust that your actions engendered in other ways.  Acting the way you did causes people in the community to feel fearful and insecure, in ways they should be protected from.   I am here considering the seriousness of the harm to the community caused by your offending.

Information indicating a tendency to commit serious offences in the future

[55]     I need to consider the information indicating a tendency to commit serious offences in the future.  You heard Ms Boshier refer to those as well and you have no doubt read those reports.

[56]     The psychologists and Dr Barry-Walsh have used various recognised tests to assess the level of risk you pose.  Dr Barry-Walsh did express some reservations as to  the  appropriateness  of  using  those  tests  for  that  particular  purpose  but,

nevertheless, they do provide some assistance.   The automated sexual recidivism scale, which Mr Prince and Ms Beach used, uses static risk factors.  Having regard to prior sexual offences and non-sexual violence factors, you are assessed as being in the medium-low category of risk compared to a large normative group of offenders. Mr Prince considered this score may well be an under-representation given that you have acknowledged other offending which you were not charged with.

[57]     Applying the STABLE-2007 scale, your 1994 profile, that’s in 1994, would have placed  you  at  a high  risk  of reoffending  in  a sexual  manner.    Mr Prince acknowledged that over time some of these dynamic variables have lessened to some extent.  His assessment was that you would still meet criteria for at least a moderate risk of reoffending at this juncture but further assessment would be required in years to come.

[58]     Mr Prince’s opinion is that it is difficult to determine in what circumstances you would be likely to reoffend because of your claimed lack of memory for the

1994 offending and denial of the sexual motivation for your 1995 offending.

[59]     Despite admissions at the time you were apprehended on the 1995 charge and your  guilty plea  to  that  charge,  you  have  refused  to  discuss  a  potential  sexual motivation  for  that  offending.     Mr  Prince  says  that,  while  risk  assessment instruments would loosely place you at a moderate level of reoffending, the fact that it is unknown what could trigger further sexual offending suggests that your level of risk may be higher than perceived.

[60]     Ms Beach’s opinion was that, taking into account all factors, you are at a medium-high  risk  of  sexually  reoffending  should  you  be  released  into  the community without considerable offence-specific treatment and the demonstration of significant change in your risk factors.

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

[61]     I turn to consider, as I have to, the failure of efforts by the offender to address the cause or causes of the offending.

[62]     You  did  not  receive  any  psychological  and/or  sexual  offender  treatment during your last prison sentence or when you were on parole due to your continued denial of any sexual element to your offending.  The writer of the pre-sentence report said that you are likely to continue to resist such treatment if you continue with your present denials.  Mr Prince says you will not necessarily meet criteria for offence- specific treatment given your claimed lack of memory for it and your denial that the

1995 offence was sexually motivated.   He said that, if you are not accepted for offence-specific treatment, then your level of risk will be unlikely to lessen.   Dr Barry-Walsh, a psychiatrist appointed by your counsel, has also said your claimed lack  of  memory  and  claimed  lack  of  sexual  motivation  could  make  treatment difficult.

[63]     Ms Beach assesses you as having unmet treatment needs, lacking insight and acceptance  of  your  offending  and  failing  to  take  full  responsibility  for  your offending.   She says those treatment needs would best be served by a programme such as the Adult Sex Offender treatment programme at Christchurch Men’s Prison. Dr Barry-Walsh has said that, because of the potential for some change in your thinking after sentencing, you should have the opportunity for further assessment and  treatment  such  as  that  offered  by  the  adult  sexual  offenders  treatment programme following sentencing.   Just understand, he wants you to have the opportunity to participate in that programme and the opportunity to benefit from it. Mr Prince and the probation officer in their reports say you may well not be accepted into such a programme with your current attitude towards your offending.  Without such treatment, Ms Beach considers you to be at a medium-high risk of sexually reoffending.

[64]     I noted Ms Beach’s reference to your intimidatory behaviour towards her when recounting your behaviour towards an ex-partner and your apparent unawareness as to how Ms Beach might perceive this.   Mr Prince referred to you presenting with an “I don’t care” attitude.   But I note Dr Barry-Walsh did refer to you responding, at different points in his interview with you, in a way that was different, where you did exhibit distress on two occasions.

[65]     I also note that in the December 2014 incident with the Police, you were seriously intoxicated.   Despite the progress  you have made in being more law- abiding and socially compliant, you were violent in dealing with a situation which was not to your liking.

[66]     All  report  writers  however  acknowledge  that,  independently of  receiving treatment for risks associated with your sexual offending, you have made changes to your life which have resulted in your not being apprehended for any serious sexual or violent offending similar to that in 1994 and 1995 since you were released from your earlier prison sentence in 1998.   You have benefited from a six month rehabilitative programme at the Salisbury Street Foundation in 1998 and a 30 day residential programme for substance abuse at the Hanmer Clinic.   You have significantly reduced your use of alcohol.   You have said all your past gang associations have gone.  You were in the same employment as a block-layer for the last nine years and were regarded as an excellent employee and you are fortunate to have the support of the work mates who have obviously shown their support for you on a number of occasions in coming to Court.

[67]     You have a daughter born from a brief relationship just before you went to prison for the 1995 offence.  You had a relationship with her when you came out of prison but it ended around 2006.  You had another daughter around 2002.   She is currently 14.  Mr Prince says that you fought for access through legal channels and have been granted shared access or care.  You resumed a relationship with a former partner some three years ago.   That relationship is still current and you retain her support.   She has spoken positively of the way your life has changed and of the commitment you have shown to caring for your daughter.  Ms Beach refers to the way you have learnt to use appropriate communication to address frustration problems and negative emotional states.  The emotional and practical support you have received from your grandmother, pro-social friends, employer and partner have reduced the feelings of worthlessness and rejection you had from your past.  These relationships and what Ms Beach describes as your exemplary employment skills, at least  average  level  of  intelligence  and  your  ability to  work  towards  a  goal,  as exemplified by your success as a wrestler, have reduced the risk of further offending similar to that which occurred in 1994 and 1995.

[68]     You are now almost 50.

[69]     That is the background against which I must make my assessment as to whether you are likely to be involved in serious sexual or violent offending on your release from prison.

[70]     I have carefully considered the information in the reports before me and what happened in the offending for which you are being sentenced today and what happened in 1995.  I am satisfied there are longstanding features of your personality and your psychological make-up, and particularly your attitude towards women and your entitlement to sexual gratification on your terms, that mean you could commit serious sexual or violent offences again, particularly so if you find yourself in a situation where you no longer have the support I have mentioned or the ability to focus on those aspects of life which have prevented you from committing such serious offences since your release from prison in about 1998.

[71]     The fact you have not reoffended in a similar way since then does indicate that, in the right social environment and with positive supports around you, it should be possible for you to live in a way which does not put the safety of those in the community, particularly women, at risk.

[72]     For you to be sentenced to preventive detention, I must be satisfied now that you are likely to be involved in serious sexual or violent offending on your release from prison.  I cannot proceed on the basis that when you are released from prison you  will  no  longer be in  the right  social  environment  and  without  the positive supports that have enabled you to avoid similar offending after 1995.   However, given the nature of your offending and the length of a prison sentence, it is possible that you could find yourself in similar circumstances to 1994.

[73]     The risk of further serious sexual or violent offending is also likely to be reduced if, while you are in prison, you face up honestly to the sexual aspect of your previous offending and participate in a treatment programme, not just because you have to but because you want to deal with those aspects of your personality.  You should want to do that given the serious harm you did to your victims, the way now

your partner and daughter must suffer the consequences of your offending and the impact it has had on your own life.

[74]     I must have regard to the principle in s 87(4)(e) that a lengthy finite sentence is preferable if this provides adequate protection for society.   In this context, the potential for the Department of Corrections to apply for an extended supervision order with conditions imposed by the Parole Board for up to 10 years also needs to be weighed in the balance.   Having regard to what the Court of Appeal said in Hartley v R, I have also considered whether I should assume that, with a further sentence, there would be such an incentive for you to acknowledge the true nature of your 1994 and 1995 offending and accept treatment for it, so that you should be sentenced on the basis this will happen and the risks of further offending will be

consequently reduced.20

[75]     You need to think very carefully about just what was the motivation for your

1994 and 1995 offending.  You denied the sexual motivation involved in the 1995 offending when you were sentenced on that occasion, even though it was admitted to with your guilty plea to the charge you faced.   Records show that you had six sessions with a clinical psychologist in May and June 1998.  You used those sessions to further reiterate that your abduction offence was not sexually motivated.  You told Ms Beach you could not recall those sessions.   You have continued to deny any sexual intent in your 1995 offence in your recent discussions with those who have provided reports to the Court.  I note that you have told the report writers that the motivation for your 1995 offending was all about debt recovery.  Despite that, you told Mr Prince that you never needed to resort to violence in your role as a debt collector.  If what you told Mr Prince was true, it is likely that the motivation for the

1995 offending was sexual, as you admitted at the time.   And, of course, now as everybody knows, that offending in 1995 occurred when a year earlier you had in fact entered someone’s home and raped a stranger.

[76]     You claim to have no memory of the 1994 offending for which I have to sentence you, something which I cannot accept as genuine.  I am sceptical as to your

20     Hartley v R [2014] NZCA 162.

claimed loss of memory for that offending given the sustained nature of the sexual assault and the degree of premeditation and planning involved in what happened.

[77]     The writer of the pre-sentence report is also sceptical of this, given your claim  you  had  a  memory of  other  events  around  that  time,  despite  your  being involved in drug abuse.  You were able to access memories of the 1995 conviction, admitted to “casing out” houses on the Ashley River and spoke about other events on the morning of that offence.  At a 1999 parole hearing, you spoke freely about the events of the abduction for sex charge, telling a probation officer you were doing a job for a gang.

[78]     The report writers are all agreed that, without your honest acceptance of the true nature of your offending and your acceptance of treatment for it, the risks of further similar offending in the future increase.

[79]     In considering whether a finite sentence should be imposed, I am conscious that your serious offending in 1994 and 1995 occurred through the choices you made when you were at a low point in your life, your involvement with an antisocial gang, the use of drugs and alcohol.   You vented your anger and frustrations by brutally attacking two women who were strangers to you.  This is the sort of offending that you could be involved in again if you find yourself in a similar situation and deal with it in the same way as you did from 1993 to 1995.  You will not be in such a situation while you are serving a finite term of imprisonment.

[80]     Corrections will however be able to look at the situation you will be in at the time of your release from a finite term of imprisonment.  At that time you will be approximately 64.  They will be able to assess whether, on your release from a finite term of imprisonment, you will be able to return to the sort of environment with which you have been able to avoid similar offending over the last 17 years.  They will be able to assess whether you have the support of relationships with your current partner or either of your daughters and the employment that will then be available to you.  Importantly, Corrections will be able to address the extent to which you have acknowledged the true nature offending in 1994 and 1995.

[81]     For these reasons, the ability of the Department of Corrections to apply for an extended supervision order becomes crucial.  It is what tips the balance by the finest of margins in enabling me to impose a finite term of imprisonment rather than a sentence of preventive detention.21

[82]     Mr Bond, would you stand.

[83]     On the three charges of sexual violation, involving three sorts of violation including rape,  you are sentenced to a term of imprisonment for 12 years nine months with a minimum term of imprisonment of eight years.

[84]     On the charge of aggravated burglary, you are sentenced to imprisonment for a term of three years.

[85]     On the charge of assault with a weapon by threatening the victim with a knife, you are sentenced to a term of imprisonment for two years.

[86]     On the charge of abduction, which involved tying up your victim, restraining her, you are sentenced to a term of imprisonment for three years.  Those sentences are all to be concurrent.

[87]     That completes my remarks on sentencing.

Solicitors:

Raymond Donnelly & Co., Christchurch

A S Greig, Barrister, Christchurch.

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