R v Connor

[2021] NZHC 2285

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS AS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2020-054-001488

[2021] NZHC 2285

THE QUEEN

V

TABAK DANZELLE CONNOR

Sentencing:	1 September 2021
Appearances:	B D Vandervolk, J J Harvey for the Crown F D Steedman for the Defendant
Judgment:	1 September 2021

SENTENCING OF COOKE J

[1]        Mr Connor you appear for sentencing today having yet again committed serious sexual offending against a child. As you will know the fact that this further offending follows from earlier offending of a similar kind means that the Court will now need to consider the most drastic sentence that exists for repeated offending of this kind, being the sentence of preventive detention. The Crown seeks that you be subject to that sentence.

[2]        In order to determine whether such a sentence is appropriate it is first necessary to assess what the sentence should be for this most recent offending. Having done so I will then to go on to address whether this further reoffending, in light of your

R v CONNOR [2021] NZHC 2285 [1 September 2021]

previous history and the assessments that have been made about you, should lead to the sentence of preventive detention.

The facts

[3]        You have pleaded guilty to two charges of sexual conduct with a child under 121 and three charges of sexual violation by unlawful sexual connection.2 The facts of your offending are set out in the Crown’s summary of facts which you have accepted by the entry of your guilty pleas.

[4]        In 2018 you befriended the complainant’s stepfather and mother, and regularly visited them in Feilding. When you so visited you provided the complainant with food and gifts. She was then six years old. She was eight when you last offended against her.

[5]        You were at that time employed as a long-haul truck driver regularly travelling the route between Auckland and Wellington. Shortly after you met up with the complainant and her mother you offered to take the complainant for rides in your truck. She then accompanied you on a number of occasions on trips between Feilding and Wellington.

[6]        In December 2018 you then moved into a flat in Feilding where the complainant, her mother and stepfather and the complainant’s sister lived.

[7]        During the period when you came to know the complainant you sexually offended against her. This gives rise to the two representative charges of sexual violation by unlawful sexual connection. You used your mouth on her genitalia and you digitally penetrated her genitalia with your fingers.

[8]        You lived with the complainant’s family for around one month. During this time you put the complainant in your bed on two occasions. This gives rise to the third representative charge of sexual contact with a child under 12.

1      Crimes Act 1961, s 132(3) – maximum 10 years’ imprisonment.

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

[9]        The complainant’s family then left the address. They then lived in a number of motels before moving to an address in Palmerston North. You then visited the address. On occasions the complainant’s mother observed you rubbing the complainant’s back and legs under her clothing. This gives rise to the fourth representative charge of sexual conduct with a child under 12. The complainant’s mother asked her if you had done anything to her, and she disclosed that you had digitally penetrated her vagina and put your mouth on her vagina. The complainant’s mother then made a complaint to police on 31 January 2020.

[10]      Later, on 16 February the complainant was at her address asleep in her bedroom at around 9 pm that evening. You sent a text to the complainant’s mother and consequently she invited you around to the address. While at the address you were asked to babysit the complainant and her sister for a short period. While doing so you entered the complainant’s bedroom and put your mouth on her vagina. The complainant’s mother then came back. You stayed until around 2 am when the complainant’s mother asked you to leave. The complainant then disclosed to her mother that you had sexually violated her. This gives rise to the final charge of sexual violation by unlawful sexual connection.

[11]      The complainant’s mother sent you text messages confronting you about what you had done and that she would be speaking to the police. You said that you did not want to go to prison for this, that you would do anything asking for a chance to get help and offering to pay money every week. The complainant’s mother nevertheless contacted the police.

[12]You then left Palmerston North but were eventually located near Thames.

Victim Impact

[13]      I have considered the victim impact statements from the complainant’s mother, and her mother’s sister who is now looking after the complainant. Both describe the impact on the complainant, and the impact on the wider family. As I will address in greater detail shortly, you do not seem to appreciate the extent of the harm that you have caused. This will be a significant issue not only for the victim of your offending,

but those closely associated with her. It has had a profound and ongoing impact on many people, but mostly the complainant herself.

Starting point

[14]      The first step in sentencing you for this particular offending is to assess the starting point for a term of imprisonment. The Crown does not seek to identify a lead charge for this offending but rather asks the Court to assess the offending overall, including the offending on a representative nature. I accept that that is a permissible way forward in this case, especially given the representative charges.

[15]      The decision of the Court of Appeal in R v AM operates as a guideline judgment for assessing the appropriate sentence for offending of this kind.3 In terms of the culpability assessment factors summarised by the Court of Appeal I accept that the following are present:

(a)There was planning and premeditation. You befriended the complainant’s mother and stepfather and created an opportunity to offend against the complainant. You provided gifts and then offered to provide truck drives for the complainant’s enjoyment. You subsequently pursued personal relationships with the complainant’s mother to provide you with an opportunity to further offend.

(b)Secondly, your victim was vulnerable. She was aged between six and eight when you offended against her.

(c)Thirdly, the complainant has been significantly harmed. I accept that there has been psychological damage arising as a consequence of your actions. She struggles to build relationships with adult men, has developed mood swings, has difficulty sleeping and when she does she takes steps to protect herself from potential sexual contact. The complainant’s mother has also lost custody of her and there has been a breakdown of the trust between mother and daughter.

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

(d)Fourthly, the offending involved a breach of trust. You developed a relationship with the complainant’s family to the point that they placed trust in you to have the care of their children. The complainant also trusted you as the adult who was supervising her. You grossly abused that trust by offending against the complainant when you judged you were able to get away with it.

(e)Fifthly, there is the scale of the offending. You offended multiple times over a period of approximately two years.

[16]      Your counsel does not challenge the Crown’s assessment of where the offending fits in the range assessed in R v AM. I also agree that it is in the second band of offending for sexual violation involving unlawful sexual connection which involves a range of four to 10 years’ imprisonment.

[17]      The Crown has referred to a number of comparable cases to identify where your offending fits within this range. Two of them seem to me to provide the greatest guidance. In Bond v R the Court of Appeal was dealing with one specific charge, and one representative charge of sexual violation by unlawful sexual connection.4 The offending occurred over the course of three years against a five to eight year old victim. It involved premeditation, gross breach of trust, vulnerability and harm as aggravating factors. After reviewing comparable cases a starting point of five years and six months was held to be within range. In R v Orchiston the defendant was sentenced on two charges of sexual violation by unlawful sexual connection, and 21 charges of indecent act on a child under 12.5 The defendant there had befriended four victims gaining the trust of their parents allowing the girls to go on a holiday and other excursions with him. A starting point of five years six months was found to be appropriate, uplifted by two years for the further violation charge and the 21 indecency charges.

[18]      I accept the Crown’s submission that guided by those and other cases, and assessing the individual factors of the present case, a starting point of five years and six months’ imprisonment is appropriate.

4      Bond v R [2010] NZCA 381.

5      R v Orchiston [2020] NZHC 224.

Uplifts

[19]      The next question is to consider whether there are circumstances personal to you that mean that the starting point for the period of imprisonment should be uplifted.

[20]      There is such a factor. As I will explain in greater detail below you have significant previous offending of a similar kind. You have nine previous convictions for serious offending against children or young persons aged between 12 and 16. These previous offences occurred in 2005, 2006 and 2007.

[21]      The Crown suggests an uplift of between 18 and 24 months for this previous offending. Your counsel accepts that an uplift at this level cannot be disputed.

[22]      I accept that an uplift is appropriate, and that the period of imprisonment should be uplifted by 18 months, bringing the total imprisonment period to seven years.

Discount factors

[23]      From that seven year starting point there can be discounts for factors relating to you.

[24]      You are entitled to a discount for the fact that you have pleaded guilty to these offences. The Crown accepts that you should be entitled to the usual discount of approximately 25 per cent for entering a guilty plea at the first available opportunity. I also accept that.

[25]      There is some suggestion that you should obtain an additional discount for remorse. The pre-sentence report records that you have expressed a degree of remorse. But that is not supported by the reports of the two health professions that I will address in greater detail shortly. I do not accept that you have truly appreciated the significance of what you have done. I am not prepared to give you a discount for remorse over and above the discount to which you are already entitled to by virtue of your guilty plea.

[26]      With the 25 per cent discount that reduces your proposed finite sentence to five years and three months’ imprisonment.

Minimum period of imprisonment

[27]      The Court is empowered to impose a minimum period of imprisonment under s 86 of the Sentencing Act. That is a period of imprisonment which you must serve, and during which you are not entitled to be considered for parole. Under s 86(2) the Court imposes such a period if the period otherwise arising under s 84(1) of the Parole Act 2002 is insufficient to hold you accountable for the harm to the victim and the community, to denounce your conduct, to deter you and other similar persons, or to protect the community. The relevant period under s 84 would be one third the length of your sentence — that is one year nine months. That does not mean that you would be released at that time, but you would be eligible for parole at that time.

[28]      In the present case the need to protect the community would be the overriding consideration. I am satisfied that a minimum period of imprisonment is required to protect the community. I do not believe that it would be appropriate for you to be considered for parole after only one year and 9 months. Any consideration of parole at such an early time would be inappropriate given the need to protect the community. For that reason I accept the Crown’s proposition that a period of two thirds the length of the sentence, that is three and a half years would be more appropriate as a minimum period of imprisonment.

PREVENTIVE DETENTION

[29]      I now come on to address the key question of preventive detention. That sentence is imposed to protect the community from those who pose a significant and ongoing risk to the safety of its members. The prerequisites for that sentence are set out in s 87 of the Sentencing Act.

[30]      There is no dispute that the first two factors referred to in s 87(2) are satisfied and that the real issue is whether you are likely to commit another qualifying sexual offence if you are released at your sentence expiry date. In undertaking that assessment I am directed to take into account a series of matters, namely:

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

(b)the harm to the community caused by the offending;

(c)information indicating a tendency to commit serious offences in 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 determinative sentence — that is a normal fixed term of imprisonment — is preferable if this provides adequate protection for society.

[31]      Furthermore under s 88 the Court must receive reports from at least two appropriate heath assessors about the likelihood of you committing a further qualifying sexual offence. Here we have reports from Dr Melanie Simons a registered clinical psychologist, and Dr Jennifer Falce a forensic psychiatry advanced trainee.

[32]      You will turn 50 years of age in October this year. Your criminal history records offending of a non-sexual nature, and of a comparatively less serious kind until 19 January 2006 when you were convicted of three charges of sexual connection with a young person between 12 and 16 years of age committed in June 2005, a further charge of sexual connection with a young person aged between 12 and 16 in July 2005 and two charges of indecently assaulting a female between 12 and 16 years of age in August 2005. This conduct was in relation to the same 14 year old girl. You were then aged 32. You were sentenced to imprisonment.

[33]      Within seven months of being released after serving that prison term you committed offences in December 2006 against a 13 year old girl, and in January 2007 against a second sleeping 14 year old girl. You were accordingly convicted and imprisoned for two charges of indecent acts upon a girl aged between 12 and 16, and one charge of unlawful sexual connection with a girl between 12 and 16 years of age.

[34]      As your counsel has pointed out following your release in 2011 and until 2018 you appear to have led a useful live, and there is no report of sexual offending during this period. You were in employment.

[35]      The pattern of your previous offending is extremely concerning, however, and the nature of the most recent offending, involving both premeditation and manipulation is highly suggestive of a very strong tendency to engage in this kind of offending, and a propensity to do so which you appear to be unable to control. That is so notwithstanding the time that has gone by.

[36]      Dr Simons interviewed you on a number of occasions. She concludes that you are at high risk of sexual reoffending against a child or adolescent girl known to you or connected to someone you know. In her opinion that prediction remains valid for up to 10 years from the date of her assessment. She used two risk assessment tools called Static-99R and Violence Risk Scale: Sexual Offence Version (VRS:SO). The first is what is called a static risk assessment tool, and the second introduces what are called dynamic factors. Both use what is called an actuarial approach — that is they compare your circumstances to a database of information of offenders with similar background factors, and to the reoffending rates of those offenders. The difference between static and dynamic risk assessment tools is that the static ones are based on the hard data of your prior offending, your age, and factors of that kind that are not changeable. That can be used as a prediction of your likelihood to reoffend based on a comparison of other persons with the same kind of history. The dynamic risk assessment tools seek to add in factors personal to you — that is matters that you can alter, such as your willingness to address the causes of your offending — in the risk assessment exercise.

[37]      The use of the static risk assessment tool called Static 99R places you in the well above average risk category. That is that you have a well above average risk of reoffending. The VRS:SO tool which has both static and dynamic risk predictors also puts you in the well above risk category. These results from the risk assessment tools are not surprising. You have seriously offended three times against children spread over a number of years.

[38]      Dr Simons notes the period of time when you did not engage in sexual offending. She also refers to your advancing age, which can lead to a reduction in reoffending risk, but says that you do not have other factors that would assist in reducing risk.

[39]      Dr Falce has also interviewed you, reviewed your background, and also applied risk assessment tools as part of her opinion. She reports that if you were to be released today you would be at a high risk of sexual reoffending most likely against adolescent and prepubescent females. She notes that under the static risk assessment tool Static- 99 you were regarded as well above the average risk at the date of her application of that assessment. She says that it is not possible for her to say what your risk would be in the future and that, for example in 20 years’ time, your risk would be lower than it is today. She records that you have not completed a relevant sexual offending programme. She reports that you fit the criteria for sexual deviance in the form of paedophilia, and that you minimise the harm that you have done and have not displayed remorse towards your victims.

[40]      She also records reports of an early childhood which involved violence and sexual offending against you. She says that the latter abuse of you is significant, and that you do not yet have insight to understand the implications of it.

[41]      Both health assessors note that you failed to truly appreciate the significance of the offending you have committed, and that you have a degree of ambivalence towards seeking to get help to address why you engage in offending of this kind. The Crown emphasised that you have declined to participate in treatment programmes when imprisoned.

[42]      It is important that the ultimate assessment about your risk is made by the Court itself following the mandated statutory criteria. The opinion of psychologists and psychiatrists, even with the assistance of the risk assessment tools, are only opinions. But I have taken those opinions into account when making the assessment required.

[43]      Your counsel in his comprehensive, but realistic submissions fairly accepts that there are powerful arguments to say that the sentence of preventive detention should be imposed. The most significant thing to be said in your favour is the period of time when you were in the community apparently without reoffending. But it seems to me that your most recent offending is the most significant feature. I am concerned that it shows that your offending is escalating. It involved highly manipulative behaviour over a significant period of time. There was nothing spontaneous about it — you

engaged in calculated behaviour over two years. Your actions can fairly be described as devious. I am also concerned that you returned to this calculated offending after a significant period of time. That suggests that the propensity to engage in this kind of offending is well entrenched in you. In light of your background of committing offending of this kind I have little doubt that there is a significant risk of your reoffending following release after a finite term of imprisonment, even a lengthy one. Something needs to change, and in a significant way, before this high risk could be said not to be present.

[44]      I have considered whether the imposition of an extended supervision order at the end of a period of finite imprisonment might mean that the level of risk that would justify preventive detention does not exist. An extended supervision order is a period of time following release where you are supervised under terms and conditions of varying nature designed to prevent reoffending on reintroduction in the community. But I have little confidence that with even this in place society would be protected from the clear risk that you now present, and will continue to present.

[45]      Mr Steedman has referred to possible cognitive limitations. Whether that is part of the circumstances that gives risk to your propensity to offend is something that will need to be considered in the treatment programmes made available to you.

[46]      There is a clear pattern of serious sexual offending of the same kind disclosed by your history. There is very significant harm caused by this offending. The information available to me shows a significant tendency to commit these serious offences, and nothing that would suggest that you have changed. You have done very little to confront the causes of your inclination to engage in this offending, and tend to minimise its impact. I am satisfied that a lengthy determinative sentence, whilst preferable, does not adequately protect society. For these reasons it is clear to me that the sentence of preventive detention must be entered.

[47]      I also accept the Crown’s submission that there should be a minimum period of imprisonment of five years before there is any question of your release.

[48]      Mr Connor, you have again engaged in very serious offending as you have done in the past. You do not appear to truly appreciate the harm that you do. You will know how society views those who engage in sexual offending against children. I am not the only one who will be judging you. I have seen the descriptions of your life, and your circumstances in the reports that have been prepared. You have faced, and will now continue to face significant challenges. It cannot be easy for you. But you need to address the things that make you engage in this kind of offending. You do not want to end up spending the rest of your life in prison. That can, and does happen with people like you. Your future is in your own hands — you need to be honest about yourself, and you need to seek help. That is the only way forward for you.

[49]      Tabak Connor following your convictions on two charges of sexual conduct with a child under 12 and three charges of sexual violation by unlawful sexual connection I sentence you to preventive detention on all those charges, and impose a minimum period of imprisonment of five years.

Cooke J

Solicitors:

BVA Law, Palmerston North for the Crown

F D Steedman, Palmerston North for the Defendant