R v Dargaville

[2012] NZHC 490

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT T PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-019-010235 [2012] NZHC 490

THE QUEEN

v

HARDING ANTHONY DARGAVILLE

Hearing:         9 March 2012

Counsel:         N Chisnall and Mr Gurnick for Prisoner

P V Cornege for Crown

Judgment:      9 March 2012

SENTENCE OF POTTER J

R V DARGAVILLE HC HAM CRI-2010-019-010235 [9 March 2012]

Solicitors:           Almao Douch, Hamilton –  [email protected]

Public Defence Service –  [email protected]

Introduction

[1]      Mr Dargaville appears for sentence for serious sexual offending.   He has entered guilty pleas to representative charges of sexual violation by rape, sexual violation  by  unlawful  sexual  connection  and  doing  an  indecent  act  on  a  child under 12.

Factual background

[2]      The offending relates to a single victim T.  I am going to call her T because she is entitled to confidentiality.   It covers a period of two years between 1 April

2002 and 1 April 2004.  Mr Dargaville was residing in Te Kuiti between 2000 and

2003.  He became friends with a local man and his partner who regularly had young family members to stay for long periods of time.   When Mr Dargaville met the couple, they had five children in their care including T who was aged eight to 10 years old.

[3]      Mr Dargaville would regularly visit the couple.  The children began to refer

to him as “Uncle Hardy”.

[4]      On two separate occasions whilst sitting at the kitchen table with T, Mr

Dargaville fondled her breasts and genital area outside her clothing.

[5]      After the couple’s house was subject to a fire the family moved to an address near Te Awamutu.  Mr Dargaville helped them to move to this address.  During the time that they lived at this address T was aged between 10 and 11 years old.  She recalls that Mr Dargaville’s behaviour towards her became progressively worse from that point.

[6]      Mr Dargaville regularly visited the new address, travelling from his home in Te Kuiti.  He would often stay the night either in the lounge or in the bedroom that was shared by T with another young girl.  T slept in the upper bunk of a shared bunk bed.

[7]      T would be woken by Mr Dargaville rubbing her thighs with his hand and moving his hand up her dress to rub her stomach.  He would then move his hand under her underwear and rub and repeatedly penetrate her vagina with his finger.

[8]      Mr Dargaville admitted to doing this on four separate occasions (these events give rise to the representative charge of sexual violation by unlawful sexual connection).

[9]      The offending progressed to a point where Mr Dargaville would carry T from her bed and place her in his bed.   He would kiss and tell her to be quiet before removing her underwear and digitally penetrating her vagina.   He would then penetrate her vagina with his penis.  While doing so he felt her breasts outside of her clothes.

[10]     Mr Dargaville admitted to doing this on four separate occasions.   These events give rise to the charge of sexual violation by rape.

[11]     Mr Dargaville also disclosed an occasion when he laid on top of T in the corn field at the property.  He said that he touched her breasts and vagina outside of her clothing and rubbed his penis against her genitals when they were both clothed. These and  the  earlier events  give  rise to  the representative charge of  doing an indecent act on a child at Te Kuiti and Te Awamutu.

Victim impact statement

[12]     T is now 18 years old and remains in the care of her grandparents.   She reports being sexually abused by other family members when she was approximately four years old, prior to the abuse by Mr Dargaville.  She evidences a robust response to the offending.  She says that although these childhood experiences have been a very bad thing she believes it has taught her something positive, that is to know how to weed out the men and who to trust.  She says she has found it hard to trust other men.

Reports

[13]     A number of reports have been prepared in respect of Mr Dargaville: a pre- sentence report dated 2 August 2011, and two assessors’ reports under s 188(1)(b) of the  Sentencing  Act  by  Dr  Kadhem  Majeed,  Consultant  Forensic  Psychiatric  at Health Waikato, dated 10 October 2011 and Kirsty Bell Hunter, Registered Clinical Psychologist, dated 20 October 2011.  The defence have obtained a medical report from Dr Warrick White, General Practitioner, dated 23 January 2012.   To avoid duplication in summarising the relevant personal history of Mr Dargaville I have drawn on all of these reports.

[14]     I  note  that  a  further  report  was  obtained  from  William  Wehi  a  Senior Registered Psychologist at Toka tu Mataara Forensic Services under the Criminal Procedure (Mentally Impaired Persons) Act 2003.   This report concluded that Mr Dargaville was fit to plead and not insane.

History of offending

[15]     Mr Dargaville has been convicted of sexual offending in 1996-1998.  He was convicted of three charges of unlawful sexual connection with a girl under 12 years which occurred between August 1996  and September 1997  and two  charges  of indecently assaulting a girl under 12 in August 1996.  He was sentenced to five years six months imprisonment.

[16]     As  with  this  offending  the  earlier  offending  involved  Mr  Dargaville developing a close relationship with the victim’s family and using that association to have access to the victim and then to sexually assault her which he did at her home, his home and in his car.

[17]     Mr Dargaville has  a conviction for common assault in 2010.   His other offending is historic, pre-dating the 1996 offending and is not sexually related offending.

[18]     Mr Dargaville has a lengthy history of medical problems.  The most prevalent is his chronic insulin-dependent diabetes mellitus and related conditions of ophthalmic complications and diabetic polyneuropathy.1     As he has not sufficiently addressed his diabetes, it has affected his attention and concentration.  He is said to be mildly obese, though he is careful with his diet and tries to maintain an active lifestyle.  He has also suffered abscess of the liver and a work accident that resulted in a penetrating wound of the eyeball.  Mr Dargaville takes approximately nine or ten different types of pills on a daily basis for heart, kidneys, and blood thinning; and self-administers insulin injections five times per day.

[19]     The most recent examination conducted by Dr Warrick White shows him to be in poor health with diabetes affecting his kidneys, proven peripheral vascular disease, and shortness of breath on exertion which Dr White says are likely to cause his life expectancy to be reduced.

[20]     Mr   Dargaville   claimed   not   to   have   had   sexual   function,   including spontaneous erections, for six to 10 years.  Clearly this is difficult to reconcile with the dates of the current offending.   Dr White states that the likelihood of Mr Dargaville experiencing sexual difficulties will increase as he ages, especially in the presence of other diseases, but that his health problems do not guarantee that he will be unable to function sexually, especially in situations of extreme or heightened stimulation.

[21]     Mr Dargaville has also received a number of historic head injuries.   Ms Hunter expresses the opinion that rather than rendering him unable to rehabilitate, these historic head injuries might make Mr Dargaville more likely to respond to concrete rules, for example “I must not be alone with children”.  However, she also comments that traumatic brain injury, in common with other personal factors, may cause his risk of reoffending to remain stable over the long term.  I infer from that observation that rehabilitation may prove difficult.

[22]    Mr Dargaville attended the Te Piriti child sex offenders’ programme at Paremoremo prison between October 2000 and June 2001.  The Crown describes this as the most intensive sexual offenders’ programme available and from my own knowledge of the particular programme, I accept that is so.   Mr Dargaville also worked on an individual basis with a Departmental Maori Service Provider in which he learned about tikanga and to develop a better understanding of Maori culture.

[23]     He is reported to have developed slowly and that he appeared uninvolved in the group process work and was occasionally disruptive.  He had to repeat some of the programme because he displayed minimal responsibility for his offending.   He was  unmotivated  to  address  his  “dynamic  risk  factors”  and  continued  to  report sexual fantasies about his victim.  He maintained cognitive distortions about sexual contact with children, such as rationalisation (a belief that women are for sex), shifting responsibility, and justification (that he did not hurt the victim).

[24]     Ms Hunter believes that his early-developed beliefs as to his entitlement to treat women and girls as sexual objects and to dominate them remain firmly entrenched; and that therefore, shortly after he was released he sexually reoffended. He maintains a “pervasive sexual deviancy”, as evidenced by his assertions that he still finds his victims sexually attractive.

Background

[25]     Mr Dargaville is a 67 year old man of Maniapoto descent, who resides in Te

Kuiti.

[26]     Mr Dargaville’s upbringing was physically abusive, though the extent of the abuse and whether Mr Dargaville was a direct target is unclear.  He says his father came home drunk and was violent towards their mother, though Mr Dargaville stated that he would stand up to him.   In the pre-sentence report, he does not report any abuse beyond being struck with canes by nuns, and specifically denied sexual abuse. Later, he told Ms Hunter that he was ostracised from his family on the basis of his

dark skin tone; and he stated that his father treated him unequally to his siblings and would physically assault him from around five years of age, approximately three times per week, for not doing his chores.  This included beatings with instruments, according to Mr Dargaville.

[27]     Regarding his early sexual experiences, Mr Dargaville told Ms Hunter that he learned about sex through witnessing his parents have sex in their bedroom in front of him and his siblings, starting when he was approximately seven years old. However, a previous psychological assessment recorded that he learned about sex by reading pornographic magazines as a 15 year old.2   When Ms Hunter questioned him about this, he denied having used pornography.

[28]     He told Dr Majeed that he did not have any sexual interest in underage children while growing up.  However, he told Ms Hunter that he and his stepsister had engaged in sexual activities with each other when they were both 12 years old (though, given his age at the time, this does not necessarily indicate an attraction to younger girls).  He stated that he had sexual intercourse for the first time with his ex- wife, when they were both 15 years old.

[29]     Mr Dargaville has been married once, and has five children.

[30]     Ms Hunter’s report indicates that Mr Dargaville was sexually and physically violent towards his wife during their marriage.  Mr Dargaville initially denied there being any violence, but later admitted to a “slap to the body here and there”, which he justified by saying that everybody does that.   He also denied being sexually violent towards her, though he said that she would “let [him] have [sex] to quieten [him] down”.  He stated that he has not had sexual contact with another woman after his marriage ended, though clearly in this statement he does not include his sexual offending against children.  Mr Dargaville and his sisters confirmed that their family has a pattern of binge drinking and violence.  Mr Dargaville stated that he no longer drinks alcohol, which was confirmed by his sister.

[31]     The  pre-sentence  report  writer  described  Mr  Dargaville’s  view  of  this offending as “a disturbing interpretation”.  He stated that the victim’s grandparents would ask him to carry out small jobs for them and concluded that he could take the children with him.  He stated that they were aware of his criminal convictions, and interpreted their actions as an exchange for, or silent consent to, his access to the victim.  He considered that he was “used” by others, whom he drove around for free or for a small fee and claimed that the current charges were only forthcoming after he finished doing favours for the victim’s grandparents.

[32]     His  responses  to  questions  about  the  offending  were  vague  and  non- committal and he could not explain why his relapse prevention plan did not work. He later admitted planning his actions in advance and that he knew the legal consequences of his actions, but could not help himself.  He described his offending as “stupid”, but did not express remorse; though he expressed concern for his own wellbeing in regards to the prison sentence.  He did not appear to comprehend the negative effects of his offending on the victims or seem motivated to address his offending.

Statutory purposes and principles, Sentencing Act 2002, ss 7 and 8

[33]     The relevant purposes of sentencing are to hold Mr Dargaville accountable for the harm done to the victim and the community, to promote a sense of responsibility and acknowledgment of that harm, to provide for the interests of the victim,  to  denounce  and  deter  the  conduct,  to  protect  the  community,  and  if preventive detention is not imposed, to assist in Mr Dargaville’s rehabilitation and reintegration.3

[34]     The  relevant  principles  of  sentencing  are  to  consider  the  gravity  of  the offending and Mr Dargaville’s culpability, to consider the comparative seriousness of this offending, and to impose a penalty near the maximum if it is near the most

serious of cases for which the penalty is prescribed, unless Mr Dargaville’s personal

circumstances render this inappropriate.4

Approach to sentencing

[35]     I propose to approach sentencing by first analysing this case according to the usual sentencing purposes and principles.   I will then consider the discretionary power vested in the Court by s 87 of the Sentencing Act to impose a sentence of preventive detention, the purpose of which, as stated in s 87(1), is to protect the community from those who pose a significant and ongoing risk to the safety of its members.

[36]     This approach is consistent with the approach in R v DAJ.5    Conceptually, it is based on the different purposes and aims of sentencing and preventive detention: the former seeks to satisfy the purposes and principles of sentencing, while the latter expressly  elevates  the  purpose  of  protection  of  the  public.6    In  contrast  to  the purposes of accountability, denunciation and deterrence in sentencing (although protection  of  the  community  from  the  offender  is  a  purpose  stated  in  s 7), consideration of a sentence of preventive detention expressly requires a focus on the protection of the public rather than on punishment of the offender.   Thus it is not punitive;7  its purpose is to protect the community from those who pose a significant and ongoing risk.8

Finite sentence

[37]     The tariff case of R v AM9  sets out bands which reflect the seriousness of the offending.  For offending falling within rape band three the starting point is 12 to 18

years.   For offending falling within rape band four the starting point is 16 to 20

4      Sentencing Act 2002, s 8(a), (b) and (d), respectively.

5      R v DAJ HC Auckland CRI 2006-092-016336, CRI 2006-092-016337, 1 April 2008, Winkelmann J. This is contrary to the comments in R v Haunui HC Auckland CRI 2008-004-

010135, 26 November 2008, Priestley J.

6      Sentencing Act 2002, s 87(1).

7      R v C [2003] 1 NZLR 30 at [5]-[7].

8      Sentencing Act 2002, s 87(1), R v Parahi [2005] 3 NZLR 356 at [85].

9      R v AM [2010] NZCA 114; [2010] 2 NZLR 750.

years.  As will be immediately apparent the bands overlap.  Counsel for the Crown and the defence are in broad agreement about the placement of this offending in the R v AM bands.

[38]     The Crown submits that the offending falls at the bottom end of rape band four in R v AM.  The factors that bring the offending into this region apply to both bands three and four, but the length of time over which this offending occurred brings the offending into band four.

[39]   The Crown submits that a starting point of 16 years imprisonment is appropriate.10

[40]     The Crown accepts that Mr Dargaville is entitled to a 25 per cent discount for his early guilty plea.  However, it does not accept that any discount is available to reflect Mr Dargaville’s age and poor health.  The Crown also notes that a decision not to impose preventive detention is likely to be based on predictions as to Mr Dargaville’s  state  of  health  following  a  lengthy  term  of  imprisonment.    Any reduction in this sentence would therefore increase this risk.

[41]     The Crown therefore submits that an end sentence of approximately 12 years imprisonment is appropriate.

[42]     Any minimum period of imprisonment imposed must reduce the risk of Mr Dargaville reoffending.   The Crown seeks a minimum period of imprisonment of over five years imprisonment in order to deliver this outcome.

[43]     The defence submits that the offending falls between bands three and four in R v AM and attracts a starting point of approximately 14 years imprisonment.  The defence submits that an uplift of one year would adequately reflect the aggravating features personal to Mr Dargaville, particularly his previous sexual offending and the fact that the offending started when he was on parole from the sentence for his previous offending.  In its written submissions the Crown did not propose an uplift to

reflect Mr Dargaville’s history of offending.  But Mr Cornegẻ in submissions today

supported such an uplift.

[44]     Consistent with the Crown’s submission, the defence submits that a full 25 per cent discount should be available for the guilty plea.  Although not entered at the first available opportunity they were entered at the first reasonable opportunity after a fitness report had been obtained under the Criminal Procedure (Mentally Impaired Persons) Act 2003.

[45]     The defence further submits that while Mr Dargaville’s age is not, in itself, a mitigating   factor,   the   combination   of   his   age   and   poor   health   will   make imprisonment subjectively hard.11     Counsel submits that a discount of about 15 per cent, being at the lower end of a range of approximately 14-33 per cent recognised by the Court where health issues can cause imprisonment to be disproportionately severe, would be appropriate.   Thus, the end sentence on the basis of the defence submissions would be 10 to 11 years imprisonment.   Mr Chisnall accepted that a minimum  period  of  imprisonment  was  appropriate.    He  initially  submitted  this should be not more than five years but accepted that a minimum period of imprisonment of six years would not be inappropriate.

Starting point for sentencing

[46]     The Crown and the defence agree on the following aggravating features of this offending: the scope and scale of the offending, planning and premeditation, vulnerability of the victim and the breach of trust involved.

[47]     To  avoid  double  counting,  a  conceptual  overlap  between  some  of  these factors  should  be  noted.    The  scope  and  scale  of  the  offending  overlaps  with planning and premeditation, because Mr Dargaville was only able to continue the offending for as long as he did, because of his careful planning, including taking the children with him while running errands for T’s grandparents.  The vulnerability of

the victim and the breach of trust  also overlap.   T’s trust was breached as Mr

11     R v Gallagher (1993) 9 CRNZ 421; Sentencing Act 2002, s 8(h).

Dargaville was treated as an uncle by the children in the house.  T’s grandparents’ trust was breached, as Mr Dargaville was a family friend who was trusted to take the children away from their home and to share a room with them.  This trust caused T to be particularly vulnerable, as it meant that she would be alone with Mr Dargaville. However, these factors also cover separate ground – even absent the breach of trust, T was much younger and smaller than Mr Dargaville, and the offending occurred in her own home, and on some occasions involved her being taken out of her own bed.

[48]     As I have noted, the Crown advances a starting point of 16 years at the bottom of rape band four while the defence advances a starting point of 14 years near the top of rape band three.   Of rape band four, the Court of Appeal said  “the paradigm case of offending within this band is that of repeated rapes of one or more family members over a period of years”.12   This kind of offending should attract starting points at the higher end of this band.13

[49]     Counsel referred to a number of cases that fall towards the lower end of band

4 including: R v N14 and R v Gordon.15   The facts of R v N are very similar to the facts of this case.   The offending in that case involved repeated rape, anal rape, digital penetration and oral sexual connection by the offender against his step-daughter. This offending occurred over a two year period, during which the victim was aged seven to nine years.  A starting point of 15 years was adopted.

[50]     The offending in R v Gordon involved offending against two female victims, who were then aged between eight and 10, by their babysitter.  The offending against the first victim involved rape, oral sex, digital penetration, the offender rubbing his penis against her genitals, and exposing himself to her.  The offending against the second victim involved two counts of anal rape, oral sex, forcing the victim to masturbate him, and touching her breasts.  A starting point of 16 years was adopted.

[51]     The Court of Appeal noted that R v N could be treated as falling within rape band three because there was only one complainant, but given that the offending

12     R v AM [2010] NZCA 14; [2010] 2 NZLR 750 at [109].

13     R v AM at [109], citing R v S [2007] NZCA 243 and R v Proctor [2007] NZCA 289.

14     R v N CA88/05, 23 November 2005.

15     R v Gordon [2009] NZCA 145.

occurred over a period of years and it caused significant trauma to the victim, the Court considered that it was better dealt with in band four.  On the other hand, the multiple victims involved in R v Gordon placed that case in band four.16

[52]     I accept the Crown’s placement of this offending at the bottom of band four. The major difference between rape bands three and four is the family context within which the band four offences occur.  These cases are characterised by a breach of trust, vulnerable victims, and wide scope of offending (either occurring over a long time, or involving multiple victims), rather than violence, which is covered by band three.  Though this case may not be the most serious of the “family” offending, it may be inferred that the Court of Appeal considered that the aggravating features present in this type of offending will, absent special circumstances, fall within band four.  This is supported by the similarities with R v N, which the Court of Appeal specifically placed in band four.

[53]     However, even if the offending were placed at the top of band three a starting point of 16 years would in my view be appropriate for this offending.   The aggravating features of breach of trust (in this case by a close family friend who had established a close relationship with the victim and her family to the extent that he was regarded as “uncle”, as distinct from a step-father in R v N), victim vulnerability, premeditation and regular offending over a period of approximately two years.

[54]     The  offending  in  R  v  N  also  involved  forced  oral  and  anal  intercourse. Though this offending is comparable and certainly not more serious than, the offending in R v N given that the Court of Appeal has made it clear that the rape bands as set out in R v AM are to apply to all rape sentencing,17   I consider it appropriate to place this offending at the bottom of band four where it must attract a

starting point of 16 years imprisonment.

16     R v AM at [110].

17     R v AM at [30]. R v AM at [125] states as follows: “The new guideline should be applied to all

sentencing taking place after 31 March 2010”.

Aggravating features of the offender

[55]     When Mr Dargaville committed this offending he was still on parole and engaged in rehabilitative services following his conviction in 1998 for very similar offending during 1996 and 1997.   He received a significant sentence for that offending, but the seriousness of his sexual offending recidivism and the fact that he offended while on parole warrant an uplift in the starting point of six months.

Mitigating features of the offender

[56]   It is clear that Mr Dargaville’s poor health will make imprisonment disproportionately severe for him.  He has already experienced physical deterioration according  to  Dr  White’s  report.    I  therefore  accept  the  submission  by  defence counsel that a discount of approximately 15 per cent should be allowed on account of Mr Dargaville’s poor health.

[57]     A further discount of 25 per cent should then be allowed for his guilty pleas.

Calculation of end sentence

[58]     The end sentence is therefore calculated as follows:  starting point 16 years imprisonment.

[59]     Uplift for past offending six months.

[60]     Revised starting point 16 and a half years.

[61]     Discount for poor health and medical problems (approximately 15 per cent), two years six months.

[62]     Further discount for guilty plea (approximately 25 per cent), three years six months.

[63]     End sentence 10 and a half years imprisonment

Minimum period of imprisonment

[64]     If an offender receives a determinate sentence of imprisonment of more than two years, the court may order that the offender serve a minimum period of imprisonment (s 86(1)), which is a minimum period that is longer than one-third of the length of the sentence.18

[65]     The court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum is insufficient to either hold the offender accountable for the harm done, denounce the conduct, deter the offender or others, or protect the community (s 86(2)).

[66]     A minimum period of imprisonment must not exceed two-thirds of the full term of the sentence (s 86(4)(a)).

[67]     The purpose of the imposition of minimum periods of imprisonment has been stated as follows:19

[Section] 86 provides the mechanism to constrain that outcome where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no on-going safety risk.  It enables the courts to give a degree of reality to the sentence and the outcome.

[68]     The  central  consideration  is  the  offender’s  level  of  culpability.20    The sentencing considerations in ss 7, 8, and 9, including the circumstances of the offender, are relevant in fixing a minimum period of imprisonment.21

[69]     In  this  case  the  need  for  accountability,  denunciation  and  community protection is high, both because of the nature of the offending and because of Mr

Dargaville’s recidivism and his continuing to minimise his offending.   I impose a

18     Parole Act 2002, s 84(1) (the default period).

19     R v Brown [2002] 3 NZLR 670 at [28].

20     R v Brown at [32].

21     R v Brown at [27]; R v Nguyen [2009] NZCA 239; R v Gordon [2009] NZCA 145; R v Walsh

(2005) 21 CRNZ 946 (CA).

minimum period of imprisonment of six years which is approximately 55 per cent of the end sentence.

Preventive detention

[70]     Section 87(2) imposes three pre-conditions to the imposition of preventive detention.  However, the existence of these conditions does not mandate a sentence of preventive detention; its imposition remains a matter of discretion.22      The conditions are as follows:

a.   The prisoner is convicted of a qualifying sexual or violent offence;

b.The prisoner is 18 years of age or over at the time of the commission of the offence; and

c.The  Court  is  satisfied  that  the  prisoner  is  likely  to  commit  another qualifying sexual or violent offence, if released at the expiry date of a finite sentence.

[71]     The first two pre-conditions are clearly established.23     The issue is whether the Court is satisfied that Mr Dargaville is likely to commit another qualifying offence if released at the expiry date of a finite sentence, which I have set at 10 years

6 months imprisonment.

[72]     In determining the third condition the Court must have regard to the s 87(4)

factors:

a      Any pattern of serious offending disclosed by the prisoner’s history;

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

c    Information indicating a tendency to commit serious offences in the future;

d.The absence or failure of efforts by the prisoner to address the cause(s) of the offending; and

e.The  principle  that  a  lengthy  determinate  sentence  is  preferable  if  this provides adequate protection for society.

[73]     This overall s 87(4) analysis is to be determined using reports from at least two appropriate health assessors about the likelihood of the prisoner committing a

22     R v C [2003] 1 NZLR 30.

23     Section 128B of the Crimes Act 1961 is a qualifying sexual offence under Sentencing Act 2002, s 87(5)(a), which includes “a sexual crime under Part 7 of the Crimes Act 1961 punishable by 7 or more years’ imprisonment”.

further qualifying sexual or violent offence.24     In this case clearly the relevance is sexual offence.  The reports are summarised below.

[74]     The assessment of risk that Mr Dargaville poses is the central focus of the preventive detention enquiry.25   Preventive detention has a protective, rather than punitive, purpose.26   The offender’s entire criminal history is to be taken into account in assessing his pattern of offending.27    In terms of the level of potential risk, it has been said that “there has to be a significant, ongoing risk of serious harm before somebody is incarcerated indefinitely”.28     The phrase “the Court is satisfied” does not imply proof to any other particular standard; the Court is merely required to make up its mind on reasonable grounds, i.e. to come to a judicial decision on the matter at issue.29

Section 88(1)(b) reports

[75]     Both Dr Majeed and Ms Hunter identify Mr Dargaville’s continued sexual thoughts about young girls, as well as a continued lack of insight and tendency to blame the victim for the offending.  Due to his age and ill health, Dr Majeed assesses him as posing a low to medium risk of sexual reoffending.   However, Ms Hunter assesses him as posing an overall high risk of sexual reoffending.

Dr Kadhem Majeed. Consultant Forensic Psychiatrist, Health Waikato, 10 October

2011

[76]     Mr  Dargaville  denied  having  sexual  interest  in  underage  children  while growing up, but he currently finds young girls “sexually provoking.”   He believes that children are becoming aware of sexual behaviours from quite an early age and he has avoided the company of children and, in particular, being alone with his

grandchildren.  He is aware of his potential to sexually reoffend against children and

24     Sentencing Act 2002, s 88(1)(b).

25     Sentencing Act 2002, s 87(2)(c); R v C [2003] 1 NZLR 30, at 5-6; R v Dean CA172/03, 17

December 2004.

26     R v C [2003] 1 NZLR 30, at 5-6.

27     R v McGee (1995) 13 CRNZ 108, at 11.

28     R v Parahi [2005] 3 NZLR 356 at [85].

29     R v White [1988] 1 NZLR 264 and R v Leitch [1998] 1 NZLR 420; confirmed in R v Dittmer

[2003] 1 NZLR 41.

says  he  has  been  using  strategies  to  distract  himself  from  engaging  in  sexual fantasies about teenage girls.   He feels that it is wrong to offend against children under the age of 14.  He has stated that he would welcome a referral to a treatment programme.

[77]     He blamed the index offending on the victim. He said that the victim moved into his bed and was playing with his penis without him inviting her to do so.  He continued to suggest that as the grandparents allowed him to sleep in the room with the victim meant that they knew what was going on and that he believes that they “put him up to it”.  He stated that he “is still vulnerable around children under the age of 15 and that he would welcome help in this area in order to keep himself safe in the future.”

[78]     The report  records that  Mr Dargaville  has  not  committed diverse  sexual crimes and his offending seems to be limited to underage girls.  He does not have any current negative social influence or gang associations.   His risk of sexual reoffending against children would increase if he were released to an uncontrolled environment where access to potential victims is not closely monitored.

[79]     Dr Majeed considered that Mr Dargaville’s age and health complications rendered his risk of sexual reoffending lower than it would be if he were a young man.  As I have said he assesses his risk of reoffending as low to medium.  He said if he is prevented from having unsupervised access to children in the future, his risk of sexual reoffending would be significantly reduced.

Kirsty Bell Hunter, Registered Clinical Psychologist, Department of Corrections, 20

October 2011

[80]     Ms Hunter reported that though Mr Dargaville seemed cooperative during his interviews, he would occasionally report inconsistently to Ms Hunter, possibly in an attempt to minimise his offending history.  For example, he initially denied the use of domestic violence within his marriage, but when Ms Hunter indicated a previous

report30    that  referred  to  this  violence,  he  acknowledged  it,  though  he  became agitated.

[81]     Ms Hunter noted Judge Rea’s comment when sentencing Mr Dargaville for the first set of sexual offending, where he stated that Mr Dargaville had made an extraordinary comment that the victim had “not been silly” and that she had “tempted” him to carry out his sexual offending.  This indicated that Mr Dargaville had major difficulties in appreciating the effect of his conduct on the victim in the opinion of Ms Hunter.

[82]     Mr Dargaville admitted the offences that took place at the second address, but denied having offended in Te Kuiti.  While he admitted some of the index offending, he had cognitive distortions that supported his sexual offending, such as stating that “it just happened”, “she would just open her legs”, she “would let you do whatever you wanted”, that she “never said no”, and that he thought she was around 12 to 13 years  old.    He  said  that  “when  you  know  how  easy it  is  ...  you  can’t  control yourself”.  He still regards his victims as being sexually attractive.  He again shifted personal responsibility for his offending to the grandparents.  Finally, he stated that he had taken some responsibility for his offending by going to church.

[83]     Ms Hunter says that Mr Dargaville has had several opportunities to address his offending and personal issues.   However, treatment appears to have had little impact on preventing him from relapsing into serious sexual offending.  She says he has “strong responsivity barriers to deriving substantial and stable benefits from treatment, relating to his level of deception, lack of insight into his offence pathway, and chronic and entrenched patterns of sexually deviant thinking and behaviour.”

[84]     Her risk assessment is as follows:

(a)       Low risk of imprisonment for general reoffending.

(b)Medium-high  risk  of  sexually  reoffending,  based  on  static  risk predictions (previous convictions and age).

30     Te Piriti Psychological Service Report, 20 June 2001.

(c)      High risk of sexually reoffending, based on stable dynamic factors (i.e. factors that are amenable to change but which tend to persevere, for instance social influences, capacity for relationship stability, emotional  identification  with  children,  hostility  towards  women, social rejection, lack of concern for others, impulsivity, poor problem solving skills, negative emotionality, deviant sexual preference, and cooperation with supervision).

(d)An overall high risk of reconviction for sexual offending within 10 years of release, when considering the static and the dynamic risk factors.

[85]     Ms Hunter considers that Mr Dargaville has “offended pervasively for almost the past two decades”, and that this plus his age at the time suggests that deterrents such as age and the presence of family members are unlikely to deter future offending.  She considers that this risk is not manageable in the community, and that his capacity to benefit from further treatment is unclear.

Submissions

[86]     The Crown frames the ultimate issue as to whether upon release from prison Mr Dargaville will be in any physical state to reoffend.   The Crown accepts in general terms that men over the age of 60 are unlikely to reoffend.  However, Mr Cornegẻ submits that Mr Dargaville falls into a different category of offender as his offending first came to light at the age of 54.  He has reoffended close to his 60s and his attitude remains broadly unchanged despite having undergone treatment.  In this context the Crown notes that the Te Piriti child sex offender programme which Mr Dargaville has completed is more intensive than any other available courses and that given his current attitude Mr Dargaville is unlikely to benefit from other courses.

[87]     The Crown notes Ms Hunter’s assessment that Mr Dargaville is at high risk of sexually reoffending, that the usual deterrence of age and the presence of family members have not prevented his offending and that she considers he is not a manageable risk in the community.

[88]     The Crown submits that while Mr Dargaville may be suitable for an extended supervision order at the end of a lengthy determinate sentence anything short of 24

hour monitoring would fail to mitigate the risk of his reoffending.  Accordingly the Crown urges a sentence of preventive detention so that he may be effectively continually monitored.

[89]     Counsel for the defence acknowledges the similarities between the previous sexual  offending  and  the  current  sexual  offending  and  that  the  offending  has escalated in seriousness.  But Mr Chisnall submits that the period that has elapsed between the end of this previous offending in 2004 and now - eight years - is important.  He submits that the risk of reoffending is likely to decrease due to Mr Dargaville’s advancement in age and his deteriorating health.  Counsel submits that Dr White’s findings strongly militate against a sentence of preventive detention as he predicts that, should Mr Dargaville survive for the next ten years, he will be in his

70s  and  potentially physically unable to  reoffend.    Counsel  also  referred  to  Dr Majeed’s  assessment  that  Mr  Dargaville  presents  a  low  to  medium  risk  of committing a further sexual offence taking into account his age and health (I note that the Crown challenges Dr Majeed’s competency to factor in consideration of health issues).

[90]     Counsel referred to the fact that the Te Piriti child sex offender programme previously undertaken by Mr Dargaville has not been successful as far as he is concerned and recognised that this is a significant indicator of future risk.31    Counsel noted that Mr Dargaville may be a suitable candidate for alternative programmes including Kia Marama.

[91]     Counsel submits that the ability to impose an extended supervision order is a relevant  consideration  as  it  would  enable  close  monitoring  of  Mr  Dargaville following   release.      He   submits   that   the   lengthy   determinate   sentence   of imprisonment when combined with the possibility of an extended supervision order,

will adequately protect the community.

31 R v Vincent [2007] NZCA 238.

Analysis of the factors in s 87(4)

Pattern of serious offending32

[92]     There is a clear pattern of sexual offending against young girls, characterised by a high level of premeditation.  Mr Dargaville engineers a situation in which he has access to young girls.  The victims in both the current and his earlier offending were extremely vulnerable and in both cases the offending continued for a lengthy period of time.   The current offending shows an escalation in seriousness in his sexual offending.

Seriousness of the harm to the community caused by the offending33

[93]     Again, this factor is clear.  Any type of sexual offending has a serious impact on the community.   In the case of offending against children, the potential psychological damage is extremely high, as the offending occurs at an inappropriate and vulnerable point in their emotional and cognitive development.  Fortunately, in this case, T appears to be particularly emotionally resilient, though the offending has clearly had an effect on her.

Efforts by the offender to address the cause or causes of his offending

[94]     Clearly these have not been successful.

Information indicating a tendency to commit serious offences in the future34

[95]     This is the determinative limb in resolving the overall issue of whether the

Court is “satisfied” that the prisoner is likely to commit another qualifying offence if released.

32     Sentencing Act 2002, s 87(4)(a).

33     Sentencing Act 2002, s 87(4)(b).

34     Sentencing Act 2002, s 87(4)(c).

[96]     There are substantial indications that Mr Dargaville has a tendency to commit similar serious sexual offences in the future. This is clearly seen in his pattern of offending, his continued assertions that the victims were provocative and knowing, and his continuing sexual attraction to children. In addition, he has previously been through an intensive rehabilitative programme, which has not worked.   The real issue is whether there is a “significant, ongoing risk of serious harm”.35

[97]     Mr Dargaville’s age, in itself, is not determinative.  However, in combination with his ill health which on the basis of the evidence available is likely to further deteriorate during his time in prison, it must be questionable that he will pose a “significant, ongoing risk” of future sexual offending.

[98]   The Parole (Extended Supervision) Amendment Act 2004 inserted new provisions into the Parole Act to provide for the imposition of extended supervision orders on sexual offenders.   The Parole Board can, upon application by the Chief Executive of the Department of Corrections, impose a term of extended supervision of up to 10 years following an offender’s release from incarceration for specified sexual offences.36     These orders should be made based upon an assessment of that offender’s likelihood of re-offending.

[99]     The Court of Appeal in R v Mist commented on the interaction between the new order and the sentence of preventive detention:37

[100]    We have no doubt that the possibility of an extended supervision order must be taken into account when assessing the extent to which a lengthy determinate term will provide adequate protection for the public. ...

[101]    Even if Mr Horsley is correct in saying that Parliament’s primary purpose was to deal with offenders who have fallen outside the preventive detention regime, we do not agree that that means that the Court should ignore the possibility of an extended supervision order when determining whether preventive detention should be imposed.   The Court is required under s 87(4)(e) to have regard to the principle that a determinate sentence is preferable if adequate protection can be provided.   We cannot see how a Court can ignore the reality that an eligible offender on whom a finite term is imposed can be the subject of an extended supervision order if he or she continues to constitute a risk to the public at the time he or she comes up for

35     R v Parahi [2005] 3 NZLR 356 (CA) at [85].

36     Including sexual violation under s 107B(2)(a) Parole Act 2002.

37     R v Mist (2005) 21 CRNZ 490.

release.   That provides a potential safety valve which is now an inherent quality of a determinate sentence for relevant offences.

[100]   Similarly,  in  R  v  Parahi,38    the  Court  reaffirmed  that  the  possibility  of extended supervision orders must be taken into account in contemplating preventive detention vis-à-vis a finite sentence.  The Court noted:39

In a finely balanced case, [extended supervision orders] allows a risk assessment to be made at the time a prisoner is about to be released, rather than requiring before the sentence, predictive assessments.

[101]   And:40

Finally, the possibility of extended supervision orders on release may tip the balance against preventive detention sentences for lower-level sexual offenders.

The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society41

[102]   The finite sentence that would be imposed on Mr Dargaville if preventive detention is not imposed is indeed lengthy – 10 and a half years.   The minimum period of imprisonment I propose is six years.  The assessment that must be made under s 87(4) is whether Mr Dargaville is likely to commit another qualifying sexual or violent offence if released at the sentence expiry date.  By that time Mr Dargaville will be in his late 70s.   Clearly he has significant health issues that are likely to impact on his health, wellbeing, and indeed sexual vitality, over the next decade.  I have considered carefully the assessors’ reports and also Dr White’s opinion.  I have read and listened closely to the submissions of counsel.  Ultimately the assessment under s 87 must be a judicial assessment.  Given the unusual circumstances of this case it is a finely balanced assessment.

[103]   On the one hand Mr Dargaville’s recidivist sexual offending (though I accept Mr Chisnall’s submission that it is not chronic recidivist offending), his lack of insight into his offending, the fact that he has completed, unsuccessfully, the most

38     R v Parahi [2005] 3 NZLR 356.

39 At [33].

40 At [87].

41     Sentencing Act 2002, s 87(4)(e).

intensive course for sexual offenders available within our prison system and his sense of entitlement, are strong indicators that he is likely to commit another qualifying sexual offence upon release at the expiry date of his sentence.   On the other hand, that date is over a decade distant and there is the possibility that an extended supervision order could be made to have effect upon his release.  As the Court of Appeal said in R v Mist the possibility of such an order must be taken into account when assessing the extent to which a lengthy determinate term will provide adequate  protection  for  the  public.    In  this  finely balanced  and  unusual  case  I consider that possibility to be very relevant and important.   It would allow a risk assessment to be made at the time Mr Dargaville is about to be released.   A risk assessment at that stage is likely to be much more accurate than any predictive assessment that can now be made albeit that the Court is assisted by valuable expert opinion in trying to make that predictive assessment.

[104]   For those reasons I consider that a lengthy determinate sentence will provide adequate  protection  for  society  and  is  preferable  to  a  sentence  of  preventive detention in the circumstances of this case.

Sentencing

[105]   Please stand Mr Dargaville.

[106] The sentence imposed upon you Mr Dargaville is 10 and a half years imprisonment.  That sentence applies to the charges of sexual violation by rape and sexual violation by unlawful sexual connection.  On the charge of an indecent act on a child under 12 years the sentence will be five years imprisonment.

[107]   Those sentences are to be served concurrently.

[108]   There will be a minimum period of imprisonment of six years to be served on the charges of sexual violation by rape and sexual violation by unlawful sexual connection.   For the avoidance of doubt, the sentences for those offences being concurrent, the minimum periods of imprisonment will also be served concurrently.

[109]   You may stand down.