R v Dixon
[2021] NZHC 271
•12 February 2021
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2019-029-000061 CRI-2018-029-001101 CRI-2019-019-001490
CRI-2018-019-002222 [2021] NZHC 271
THE QUEEN v
MICHAEL MORGAN DIXON
Hearing: 12 February 2021 Appearances:
R Guthrie for the Crown
A Cresswell for the Defendant
Sentence:
12 February 2021
SENTENCING NOTES OF HINTON J
Solicitors/Counsel:
Crown Solicitors, Hamilton
Annabel Cresswell, Barrister, Auckland
R v DIXON [2021] NZHC 271 [12 February 2021]
[1] Mr Dixon, you appear for sentence today having pleaded guilty to a number of charges related, primarily, to what the Crown terms as predatory and repetitive offending against two children with whose parents you cultivated relationships.
[2] You are also for sentence on a charge related to your repeatedly having choked an adult sexual partner during sex, despite her telling you to stop.
[3] I am also required to deal with two breaches of an extended supervision order, and your breach of a sentence of community work.
[4] Ordinarily, the current charges would be dealt with in the District Court. You are appearing in the High Court today because the Crown submits I should impose a sentence of preventive detention, which can only be imposed in this Court.1 They say this because of your history of offending, including the charges in respect of which you appear today. The Crown submits that history makes it necessary for you to be imprisoned for an indeterminate period, so as to protect the community against what they say is the likelihood of your committing serious sexual and violent offences in the future.
[5] I will begin today by summarising the facts of your past offending, including the present charges, and the reports that have been provided to the Court by both the Crown and your counsel, Ms Creswell. I will then use that information to determine the appropriate finite term of imprisonment in this case. That will then assist me, finally, in determining whether I should then instead impose a sentence of preventive detention.
Offending
[6] At the beginning of 2016, you began a friendship and sexual relationship with a woman in [redacted]. From November 2016 until January 2017, you lived with her and her two daughters, S and Z, in [redacted]. You were also friendly with the girls’ father. You offended against the girls at both their mother’s and father’s houses.
1 See Sentencing Act 2002, ss 87(3) and 90.
[7] On one occasion, you approached S after she had finished washing the dishes. She was then aged nine. You hugged and kissed her on the lips, forcing your tongue into her mouth.2
[8] On another occasion, at a time S was visiting her father’s address, you went to visit her father, having had an argument with S’ mother. While there, you sat near S and showed her a pornographic video. While doing so, you placed your hand under her bottom as she was sitting and rubbed your palm around on top of her clothing.3
[9] On another occasion while S was staying at her father’s house, she awoke during the night and moved to sleep on the couch in the living area, where you were sleeping on a mattress on the floor next to the couch. You reached up, undid the buttons on S’ dressing gown, and put your hand inside her underwear.4 You then inserted your finger into her vagina.5 Your sharp fingernail hurt her. You apologised but continued to digitally penetrate her.
[10] You put your hands inside S’ underwear and penetrated her vagina with your finger on numerous occasions while you were in the relationship with her mother.
[11] On other occasions while in the living room with S at her father’s house, you pulled your penis out from your pants and rubbed it against S’ body as she lay on the couch.6
[12] As I have said, you also offended against S’ older sister, Z, who was aged fifteen at the time. While Z was in the kitchen at her mother’s house one morning making breakfast you approached her from behind and gave her a hug, touching her breasts and bottom in doing so.7
2 Indecent Act on a Child Under 12: Crimes Act 1961, s 132(3). Maximum penalty ten years’ imprisonment.
3 Indecent Act on a Child Under 12: Crimes Act 1961, s 132(3).
4 Indecent Act on a Child Under 12: Crimes Act 1961, s 132(3). This is a representative charge.
5 Indecent Act on a Child Under 12: Crimes Act 1961, s 132(3). This is a representative charge.
6 Indecent Act on a Child Under 12: Crimes Act 1961, s 132(3). This is a representative charge.
7 Indecent Act on a Young Person Under 16: Crimes Act 1961, s 134(3). Maximum penalty seven years’ imprisonment.
[13] The next day, as Z was lying on her bed, you entered her room, lay down beside her, and hugged her from behind, attempting to kiss her neck.8 You left the room quickly as her mother returned home.
[14] The girls’ mother was saving money in a container at her home. When you decided to leave the address at the end of January 2017, you took the container.9 It held cash of approximately $100. The girls’ mother never saw you or the container again. You admitted taking the money when subsequently interviewed by Police, saying you committed the theft to feed your drug addiction, but you denied offending against the girls.
[15] You are also for sentence for offending during a sexual relationship you entered into with a Ms M between July and August 2018, having moved in with Ms M and her mother a few days earlier. During this time, you had sexual intercourse with Ms M on four or five occasions. Each time, you began squeezing her throat, gradually tightening your grip until she could no longer breathe. Ms M repeatedly told you to stop.10 You would initially stop, but recommence choking her once sex continued, only stopping once you ejaculated. Fortuitously, no injuries resulted to Ms M. When interviewed by Police, you claimed Ms M had asked you to choke her.
[16] As I said earlier, you also appear today so that I can deal with your having twice breached an extended supervision order to which you were made subject on 25 May 2017. The circumstances are that, on the afternoon of 12 July 2018, a tamper alarm was set off on your electronic monitoring anklet, meaning your location was unknown. This amounted to a breach of the order.11 Then, on 17 July 2018, your probation officer was informed that you had tested positive for cannabis, amphetamines, and methamphetamine; meaning that you breached a “no drugs” condition. At about the same time, you consistently failed to report to complete a
8 Indecent Act on a Young Person Under 16: Crimes Act 1961, s 134(3).
9 Theft: Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months’ imprisonment.
10 Assault with Intent to Injure: Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment. This is a representative charge.
11 Parole Act 2002, s 107T. Maximum penalty two years’ imprisonment.
community work sentence that was imposed on 14 June 2018, such that you have completed only 7.5 hours of your 120 hour sentence.12
Victim Impact Statements
[17] Your offending has had a profound and lasting impact on your victims. Victim impact statements have been prepared by S and her mother. S explains how your actions have made her lose confidence and no longer feel safe around any man. She finds it difficult to sleep at night, remaining afraid in her own home. She is angry and confused as to why you took away her innocence. S is still attending counselling to help her process what happened, but says she still finds it difficult to talk about it.
[18] S’ mother, for her part, feels deeply betrayed by you, and blames herself for what happened to her daughters, for whose wellbeing she remains deeply concerned. She also says that Z is dealing with the hurt and betrayal by you in her own way but is affected mentally and emotionally. In short, Mr Dixon, you have caused a lot of damage to this family.
[19]I note that there is no victim impact statement from Ms M.
Corrections Information
Criminal history
[20] In addition to your offending between 2016 and 2018 which I have just described, in 2009 you were convicted on two charges of rape, and one of having unlawful sexual connection with a woman over the age of sixteen. This was very serious offending. The two young women targeted by you were aged only 16 and 19. You received a term of imprisonment of nearly ten years in respect of this offending. You were not long out of prison on the rape convictions before you started offending against S and Z. All of this taken together creates an alarming pattern of sexual violence against women and young girls.
12 Sentencing Act 2002, s 71(1). Maximum penalty three months’ imprisonment or a fine not exceeding $1,000.
[21] Also, following your release from the 2009 sentence, you were made subject to release conditions and, from 25 May 2017, a ten year extended supervision order (ESO). You were convicted of breaching your release conditions in 2016 and 2017 and were returned to prison. You were further released in 2018, and in addition to the breaches of your ESO that I am required to deal with today, you have been convicted of having breached your special release conditions on two other occasions. It appears that each conviction relates to a number of breaches. I also note you were convicted for breaching the community work sentences imposed in respect of previous ESO breaches and other charges.
[22] These convictions, together with the fact your offending against Ms M was committed while you were subject to the ESO, reflect a highly concerning disregard for, or inability to comply with, legal restraint. These factors suggest your previous term of imprisonment, which was lengthy, had only a limited deterrent effect. These factors clearly call into question the effectiveness of mechanisms aimed at managing the risk of your offending against women while allowing you to remain in the community, such as the ESO regime.
[23] I briefly note your other previous convictions, from the late 2000s and late 2010s, for possessing a knife in a public place and burglary. In the gap in between these convictions you were in prison on the 2009 sexual offending convictions.
Pre-sentence reports
[24] You have a drug habit which emerges from your statements to the author of a Corrections pre-sentence report dated 22 September 2020, the most recent of three such reports I have before me today.
[25] The author of the 22 September report says that you described your offending as impulsive, and as usually taking place under the influence of methamphetamine. However, as the author notes, that “impulsive” offending was possible because of your having insinuated yourself into the lives of the victims. You admitted in this connection that you are manipulative. You said however that you were concerned to now take responsibility for your actions and undergo all treatments necessary for you
to “live a pro-social life when released”, and that it was a “wake up call” to be told you are at risk of a sentence of preventive detention.
[26] I note here Mr Dixon that you have made similar comments to me in Court today and I am sure your comments are genuinely motivated. There is nothing to suggest, however, that you have begun to develop concern for your victims and for the harm that you have done. You appear concerned mainly with the risk of an indefinite term of imprisonment.
[27] Certainly, as the author of the most recent report notes, any desire to reform would be entirely inconsistent with your ongoing contempt for legal restraint. As the author of the 29 January 2020 report puts it, you have rather “shown instances of repeating choices […] with no regard, care, or concern for the consequences of [your] actions”. The 14 January 2019 report, in particular, suggests you have a history of providing reassurances of your potential and desire to rehabilitate, which as I have said I am sure are genuine statements on your part, but afterwards you simply return to the old patterns of behaviour.
[28] For these reasons, and given your conviction history, lack of response to treatment programmes, and recidivism, Corrections assesses you at a high risk of reoffending in a sexual manner, and causing serious harm, when next released.
Principles and Purposes of Sentencing
[29] For the reasons just described, in sentencing you today I am primarily concerned with trying to promote in you a sense of responsibility for the harm you have done,13 deterring you from committing similar offending in future,14 and protecting the community from you.15
13 Sentencing Act 2002, s 7(1)(b)
14 Section 7(1)(f).
15 Section 7(1)(g).
[30] Given the serious nature of the harm you have caused, I am also very concerned to provide for the interests of your victims,16 denounce your conduct,17 and hold you accountable.18
[31] The Sentencing Act requires me to have regard to certain principles in sentencing you. All of these are relevant, but the most significant today are the requirements to:
(a)take into account the gravity and comparative seriousness of the offences you have committed in order to achieve consistency with other sentences;19
(b)take into account the information available as to the impact on your victims – I have been assisted in this regard particularly by the victim impact statements from the child S and her mother;20
(c)take into account the available information about your personal, family, community, and cultural background and in that regard I have been assisted by the Section 27 report which is very fulsome and which I accept;21 and
(d)having done all of that, impose the least restrictive sentence appropriate in the circumstances.22
Determinate Sentence
Starting point
[32] Against the background provided by this information, I must now identify an appropriate determinate sentence in respect of your offending, before going on to
16 Section 7(1)(c).
17 Section 7(1)(e).
18 Section 7(1)(d).
19 Sections 8(1)(a)-(b) and 8(1)(e).
20 Section 8(1)(f).
21 Section 8(1)(i).
22 Section 8(1)(g).
decide whether to impose an indeterminate sentence. I will do this by adopting an appropriate starting point, based on the aggravating and mitigating features of your offending, before then adjusting that starting point to account for aggravating and mitigating features personal to you, including your guilty pleas.23
[33] In terms of setting the starting point, Ms Guthrie for the Crown and your counsel Ms Creswell agree it is appropriate for me to first set a starting point in respect of the indecency offending – being the greater part of your offending – before adjusting this upwards to reflect the other charges.
[34] Indecency offending such as yours, unlike some other offences, is not the subject of definitive sentencing guidance from the Court of Appeal, because of the wide range of potential offences and the need to account for the very different facts that can apply.24 Regardless of the level of it, sexual offending against children will usually attract a starting point of a term of imprisonment,25 lower level offending attracting sentences of between six and 24 months’ imprisonment,26 with more serious offending attracting starting points increasing from there. The maximum penalty for indecency against children is ten years’ imprisonment.
[35] The question is where in the range of offending of this type your offending sits. I begin by noting that counsel agree, as do I, that the following statutory aggravating features are present in your indecency offending, albeit counsel disagree as to the degree to which some of the factors are present, which is also an important consideration:27
(a)Vulnerability of victims.28 The girls were vulnerable by reason of their young age. Entailed within that is their smaller size and lack of maturity compared to you. While this inheres to an extent in these charges, it remains a salient feature of the offending, and makes the offending against S more culpable than that against Z.
23 Moses v R [2020] NZCA 296.
24 R v Walker [2010] NZCA 288 at [23].
25 R v Pattison [2019] NZCA 103.
26 At [20].
27 See R v Paki [2012] NZHC 3494 at [30], approved Paki v R [2013] NZCA 279.
28 Sentencing Act 2002, s 9(1)(g).
(b)Breach of trust.29 You exploited the relationship you formed with the girls’ mother and father, to offend against them in their homes, where the girls ought to have felt safe. You were, as their mother’s boyfriend, in a position of responsibility and care towards them. This was a high level breach of trust.
(c)Premeditation.30 I agree with Ms Guthrie that a significant degree of premeditation, in the form of predatory behaviour, was present here. In saying this, I disagree with Ms Creswell, who submits there was only a low degree of premeditation because, she says, the offending occurred only in the opportunistic absence of the girls’ parents. That ignores the repetitive nature of the touching, and the elements of grooming present, which combine to suggest predation; a premeditated intent to offend when the opportunity presented itself.
(d)Harm to the victims.31 As I have already noted, your offending has had a considerable and ongoing impact on the girls, as well as their mother.
(e)Extent of offending.32 As is reflected by the representative nature of several of the charges against you, this was a moderately sustained campaign of offending, carried out over the course of several months, that involved repeated opportunistic acts. The offending escalated as far as skin-on-skin touching of S’ genitals.
[36] Counsel have referred me to a range of comparable cases to assist me in determining where, having regard to the degree to which these factors were present compared to other cases, this one should sit in terms of starting points, given the need for consistency.
[37] This includes the case of Pattison. There, the Court of Appeal accepted the aggravating features of the offending were the considerable age difference between
29 Section 9(1)(f).
30 Section 9(1)(i).
31 Section 9(1)(d).
32 Section 9(1)(d).
Mr Pattison and the young victim; the victim’s considerable vulnerability by reason of her poor mental health (which he exploited in several regards); the sustained nature of the offending against the victim over two and a half days; and the high level of harm done. The level of touching was broadly similar to that found here. The Court of Appeal considered a starting point of two years and six months appropriate, as opposed to the trial judge’s figure of three years.33 I note as Ms Creswell submits, that Pattison involved a greater age discrepancy and greater vulnerability of the victim by reason of her poor mental health. However, here there were two victims, and a more sustained pattern of offending.
[38] The most similar of the cases is that referred to me by Ms Guthrie of O(CA643/2009) v R,34 where the ten or eleven year old victim was indecently assaulted by her uncle on four separate days over seven months. This involved his touching the skin at the outside of her vagina with his hand, kissing her lips, and on other occasions touching her breasts and genitals through her clothing. The Court of Appeal upheld a starting point of 36 months’ imprisonment on six charges arising from this, though said that was stern.
[39] Having regard to this guidance, and also the number of charges, including the representative nature of several of the charges, the sustained and predatory nature of the offending, and the presence of repeated skin-on-skin contact with a child’s genitals, I consider the appropriate starting point in respect of the indecency offending here to be three years and six months’ imprisonment.
[40] To this I must add uplifts to reflect your offending against Ms M. Again, there is no guideline judgment for sentencing assault with intent to injure, but some guidance is available from the guidelines for more serious violent offending, given the same aggravating features will be present to a lesser degree.35 Counsel agree that is a useful approach, and that your offending against Ms M is in the middle category for offending of this type, involving as it did an attack to the head or neck against a victim
33 Pattison v R [2019] NZCA 103 at [21]-[22].
34 O(CA643/2009) v R [2010] NZCA 609.
35 Tamihana v R [2015] NZCA 169 at [16], referring to Nuku v R [2012] NZCA 584.
who was vulnerable because of the circumstances of trust and the sexual context of the offending.36
[41] Ms Guthrie says, referring to the cases of Goodman and Cunningham,37 that this offending would attract a starting point of two years six months if being sentenced on a standalone basis. Ms Creswell says that would be much too high, given a starting point of two years four months was adopted in respect of more serious charges in those cases, and they involved more sustained violence and degradation. While not seeking to minimise the heinous quality of your violence against Ms M, I agree your offending against her would not attract a two year six month starting point if sentenced stand- alone. Given, however, counsel ultimately agree a 12 month uplift is appropriate on totality here, as do I, I do not need to say any more.
[42] A further uplift is required in respect of your two most recent breaches of your ESO and breach of community work. Ms Creswell submits that this should be in the order of two to three months’ imprisonment. Given your almost complete failure to complete the sentence of community work, and your apparently blatant and deliberate disregard for your “no-drugs” condition, I assess these as moderately significant breaches. On a standalone basis, a sentence of six months’ imprisonment would be indicated on each of the ESO charges, and two months on the community work charge. In totality, an uplift of three months in respect of all these charges is warranted.
[43] Finally, I consider that no further uplift is required in respect of the theft charge. Notwithstanding the significant impact on the victims, the sum taken was small, such that the maximum possible penalty is low and any further uplift would be excessive having regard to totality.
[44] That produces a starting point of four years and nine months’ imprisonment. I must now proceed to uplift and/or reduce this figure, considering aggravating and mitigating features personal to you.
36 See Nuku at [38], referring to Taueki v R [2005] 3 NZLR 372 (CA) at [31].
37 Goodman v R [2016] NZCA 64; and Cunningham v R [2019] NZCA 622.
Aggravating features personal to the defendant
[45] Counsel are agreed there must be an uplift by reason of your criminal history. I agree that is necessary as your previous sexual offending and breaches of your ESO and other legal restraints plus the fact a pattern of such offending has become sustained, suggest a greater need for deterrence, denunciation, and promotion of accountability.38 I consider an uplift of three months, or about five per cent, is proportionate to that objective, which also takes into account the fact the offending against Ms M took place while you were subject to the ESO.
Mitigating features personal to the defendant
[46] Ms Creswell submits you are entitled to a discount of fifteen per cent in respect of your personal, family, and cultural background, and remorse. She refers in support of this submission to a report detailing your life history that has been tendered under s 27 of the Sentencing Act 2002.
[47] The s 27 report writers record the following, based as is often the case with these reports, on your own self-reporting, which I do accept. You were uplifted from your mother when aged about 30 months and placed in foster care, apparently suffering from malnutrition and weighing little more than a new-born. You said you had been found locked in a cupboard. Your mother was apparently an alcoholic. The report writers suggest you may have inherited, genetically and through the behaviour she modelled, a predisposition to substance abuse, referring to studies that model such transmission. Your admitted ongoing issues with substance abuse were plainly a proximate cause of each episode of offending, perhaps reducing your inhibitions in each moment.
[48] As for why you positioned yourself in circumstances where you could exploit those opportunities to offend, some clues can be found elsewhere in the report. The writers infer an early life history of neglect and abuse at the hands of [redacted], based also on your telling them that Child, Youth, and Family Services told you that you had been sexually abused at the hands of [redacted]. A history such as this, the report
38 See Wallace v R [2012] NZCA 546 at [26].
writers note, is associated with an increased prevalence of antisocial and aggressive behaviour, together with conditions such as attention deficit hyperactive disorder, which condition the Corrections report writers note you have. Male victims of sexual assault are more likely, they note, to experience depression, anger, anxiety, and “sexuality problems”, again referring to the scientific literature in support of that contention.
[49] These problems were likely exacerbated, they say, by the lack of suitable family support during your later development as a child and adolescent. While you were placed with an adoptive family after being uplifted from your mother, due to what you termed as disruptive behaviour you were placed in state care again at the age of ten. This led to a succession of placements in foster homes and youth justice facilities, interposed with periods of homelessness and precarious housing. An unstable home life such as this, the report writers note, can (unsurprisingly) have a long-term negative impact on a young person’s health, development and behaviour, and would have further aggravated the trauma you suffered earlier in life. It would have also, the report writers suggest, exposed you to the company of street kids and gangs in a process of “street socialisation”, in which being violent and conniving was an advantage. This, it can easily be inferred from the report, left you with a lack of conventional life skills, and aggravated your mental health, and your substance use issues, making your entry into the adult criminal justice system more likely (if not inevitable in my view).
[50] It is a reasonable inference from the report that there is a connection between these aspects of your life history and your offending because the precarious and traumatic experiences of your past have resulted in your acting in a maladaptive, violent, and exploitative manner towards others. Deprived of stability, and left to fend for yourself on many occasions, you have learned to take what you want from others without caring for them. That very much aligns with your account to Corrections of your offending against Ms M.
[51] The Court of Appeal has now repeatedly recognised that features of an offender’s background and family history such as are present in your life ought to be considered in sentencing. They do not excuse your offending, but where, such as is
the case here, a “demonstrative nexus”39 between the circumstances and the offending is present, they do explain it by showing how your choices in life, and moral agency, were impaired. This makes you less culpable than an offender who did not have the same disadvantages in life, requiring some reduction in sentence.40
[52] The appropriate extent of any such discount is “very much fact-specific in each case”,41 and no guideline judgment is available. However, the requirement to treat like offenders alike suggests your discount should bear some relation to that afforded to the many other offenders whose life histories are in some ways similar to yours. This includes Mr Carr, whose case the Court of Appeal considered last year, to which Ms Creswell refers me.42 Suffice to say, he suffered abuse and trauma while young, ran away from home, became subject to poor influences and substance abuse, and became institutionalised. He was also affected by a severe disconnection from Te Ao Māori, which Ms Creswell accepts distinguishes your position. Overall however, by reference to that case, and other recent appellate guidance,43 I consider a discount of fifteen per cent appropriate in respect of these aspects of your personal and family background. This accords roughly with Ms Creswell’s submission.
[53] I do not consider any further discounts for remorse, rehabilitative potential or motivation, or similar, are available. That would be entirely inconsistent with the clear impression to be taken from Corrections’ report, which I have already discussed.
Guilty plea discount
[54] You are however entitled to credit in respect of your guilty plea. Ms Creswell says this should be 25 per cent, the greatest discount available. Ms Guthrie says it should be 15 per cent. I consider a figure of 20 per cent appropriate. On the one hand, your pleas have still avoided the need for a trial, thereby saving the Courts and Crown considerable expense and sparing your victims from testifying. On the other hand,
39 Zhang v R [2019] NZCA 507 at [161]-[162].
40 Poi v R [2020] NZCA 312 at [24]-[27], [32]-[39] and [40]-[51]; Solicitor-General v Heta [2018]
NZHC 2453 at [40]-[41], Arona v R [2018] NZCA 427 at [59]. See also R v Rakuraku [2014] NZHC 3270 at [58]; R v Eruera [2014] NZHC 3270 at [21]-[23]. This can be seen to give expression to ss 8(a) and 8(i) of the Sentencing Act 2002.
41 Whittaker v R [2020] NZCA at [51]; Carr v R [2020] NZCA 357 at [63].
42 Carr v R [2020] NZCA 357 at [71].
43 At [69]-[71]. See also Poi v R [2020] NZCA 314 at [32]-[39] and [40]-[51].
your pleas were not entered at the first opportunity, and were made in the face of a very strong Crown case, making the full reduction not appropriate.44 I appreciate the charges were amended, but initially you denied any sexual offending at all.
End result regarding determinate sentence
[55] Taking together the uplift and the discounts that I have discussed brings me to an overall rounded discount of 30 per cent and a period of imprisonment of three years four months.45 That will be the finite sentence of imprisonment imposed if I determine that preventive detention is inappropriate.
Minimum period of imprisonment
[56] Ordinarily, a prisoner serving a finite sentence becomes eligible for parole after one-third of their sentence.46 The Crown says that, should a finite sentence be imposed, I should exercise my discretion to order you to serve two-thirds of any finite sentence before being considered for parole. This is because, the Crown says, your being eligible for release after only serving a little over a year would be insufficient to hold you accountable for the harm done, denounce your conduct, deter you from committing similar offences, and for protection of the community.47 The defence say at most one-half of the sentence should be the minimum period of imprisonment, without further elaboration.
[57] I agree with the Crown submission. Your being eligible for release after only thirteen months or so in prison would not, given the history of serious offending on your part and the high risk of harm and further offending you represent and given your conviction and personal history, adequately protect the community or deter you from committing similar offences in future. As I have noted, there is a particular need for community protection and deterrence in this case. It would also not be commensurate with the seriousness of your offending, failing to recognise the harm done. While a two-thirds order would not be indicated only for the purposes of denunciation and
44 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [57]-[65].
45 As to methodology, see Moses v R [2020] NZCA 296.
46 Parole Act 2002, s 84(1).
47 Referring to Sentencing Act 2002, s 86(2)(a)-(d).
accountability, this offending not being the worst of its kind, that order is required for purposes of community protection and specific deterrence.
[58] As follows, if I sentence you to a finite term of imprisonment, you will be required to serve two-thirds of that sentence before being eligible for parole.
Preventive Detention
Applicable principles
[59] Finally, and importantly, I must now consider whether I will sentence you to a finite term or whether I will instead sentence you to an indefinite term of preventive detention.
[60] The purpose of a sentence of preventive detention is to protect the community from those who pose a significant and ongoing risk to its safety. It is available where an adult offender has committed a qualifying sexual or violence offence, and the Court is satisfied they will commit another such offence if released at the end of any sentence that could be imposed.48
[61] The Crown invites me to impose such a sentence, saying this risk exists having regard to:
(a)any pattern of serious offending disclosed by your criminal history and any harm to the community that offending has caused;49
(b)any information before the Court, indicating a tendency on your part to commit such offences in future, and/or that you have failed to address the causes of this offending;50 and
(c)the principle that a lengthy determinate sentence should instead be imposed if that will adequately protect society.51
48 Sentencing Act 2002, s 87(1).
49 Sections 87(4)(a)-(b).
50 Sections 87(4)(c)-(d).
51 Section 87(e).
Health assessors’ reports
[62] As is required, the Crown has obtained reports by two health assessors – Drs Young and Galley – as to the risk of your continuing to harm the community. Your counsel has obtained a further report from Dr Bartle. Drs Young and Bartle are clinical psychologists with forensic experience. Dr Galley is a consultant psychologist.
[63] Dr Young notes the details of your life history in terms similar to the s 27 report, commenting this will have had a significant adverse impact on your development. He notes you were diagnosed with foetal alcohol syndrome and attachment disorder. While, he notes, you have developed good language skills, you evince significant deficits in memory, attention and reasoning, and have not adequately matured socially or emotionally. He relates your upbringing to your desire to exercise control over others, and to be free from restraint, and notes your manipulative behaviour. Relatedly, the doctor shares the impressions of others noted already that you lack empathy and remorse. He adds that you appear unable to foresee the consequences of your behaviour, or at least are so impulsive, given also your high sex drive, that any foresight as to the consequences of your action is overridden. These features of your psyche, together with the evidence provided by your conviction history, suggest to the doctor that you are unlikely to deviate from the pattern evidenced by your offending to date. All of this, in his view, can be grouped under the label of psychopathy which, given your history, places you at a high risk of continued sexual offending. A Department of Corrections assessment tool Dr Young used placed you in the “high risk” category of reoffending and imprisonment.
[64] Dr Galley gives a similar assessment. He considers that you, based on his assessments and review of your clinical, criminal, and life history, meet the diagnostic criteria for psychopathy. This, he says, places you in the highest risk category for reoffending, including of a serious sexual nature, which risk will be magnified by the likelihood of continued substance abuse. He considers you are likely to derive little benefit from rehabilitative interventions. In particular, given this assessment, he says I should place little weight on your expressed desire to rehabilitate.
[65] Dr Bartle’s assessment, while perhaps marginally less grave, is broadly similar, placing you in very nearly the highest category of risk of reoffending, for the same reasons as Drs Young and Galley. He suggests that given the apparently organic nature of a number of the troublesome aspects of your psychological makeup, and the long- standing presence of trauma, attachment difficulties, and development challenges, any change on your part will be a long-term process.
[66] Critically, I note Dr Bartle does not exclude the prospect of changes but notes that your ability and motivation to change is at considerable risk from your likelihood of relapsing into substance use, and “propensity for rejecting supervision and support”. Until or at least these factors can be overcome and you change, his assessment is also that your criminal history of causing serious harm to women in the community, coupled with the available evidence of your psychological makeup, will continue, placing women and children in the community at risk.
[67] Evaluating this information and the other material I have already reviewed in terms of the statutory factors, I agree with the health assessors that your conviction history now discloses a pattern of serious sexual offending.52 This involves violent and degrading offending against adult women and inherently unusual and heinous offending against children and young girls. The fact that the circumstances of the offending differs does not detract from the existence of this pattern of predation.
Assessment of s 87 Sentencing Act 2002 criteria
[68] The overall impression and the view I have reached is that, given the opportunity to offend against a woman or girl who has been rendered vulnerable to your predation, you will likely commit another qualifying sexual offence if released at expiry of the finite sentence I set earlier.
[69] Ms Creswell accepts that this your offending has caused significant harm to the community,53 and I am sure she does that on your instruction, particularly where the offending against children is involved. No other view can be taken of this. The
52 Sentencing Act 2002, s 87(4)(a).
53 Section 87(4)(b).
victim impact statements make clear the harm your exploitation of and violence against these women has caused.
[70] The unambiguous assessment of all three health assessors, and as I have already said, the clear impression to be taken from the three Corrections pre-sentence reports, is that you have a tendency that means you would, if readmitted to the community as you are today, continue to offend in this manner.54
[71] It is clear that these tendencies have not abated, despite the opportunities you have received to address your offending, such as completing the adult sex offender treatment programme in December 2012, a drug treatment unit programme, and a special treatment unit rehabilitative programme for violent offending in 2014. While you now and previously express a desire to rehabilitate, Corrections reports that your statements of reforming intent do not lead to behavioural change. Dr Bartle’s assessment, as I have noted, is that change on your part is possible, but will be difficult and take time, given your neurological and development background. He suggests that more intensive and tailored intervention is required.
[72] The overall impression to be taken from all of this, which both counsel appear to accept, is that you may well have tried to change in the past, but that treating you will be difficult, and take quite some time. Against this background, your expressed willingness to reform does not in and of itself provide any reassurance the community would be safe if you were released after a finite sentence to pursue rehabilitation in that community.55
[73] I note it seems likely in all these circumstances that the alternative finite sentence available here would not be nearly long enough for you to receive adequate treatment before release, particularly if it is of the specialist nature that Dr Bartle refers to. I note also that your consistent disregard for the ESO suggests the use of that regime to monitor your compliance with rehabilitation would not, as things stand, be effective.
54 Section 87(4)(c).
55 Section 87(4)(d).
Preventive detention is required to protect society
[74] Overall, I am satisfied a finite sentence would not give adequate protection to society.56
[75] Even if Ms Creswell is correct that there is an established principle that preventive detention will be imposed for indecency offending only in “exceptional cases”,57 that submission ignores the other charges for sentence today and your previous rape convictions. I am satisfied your offending discloses the knowing, persistent, invidious behaviour of the type that can result in a sentence of preventive detention.58 This is so even absent any prior “warning” that continued offending would result in preventive detention, which is not in any event a requirement.
[76] The short point is that the finite sentence otherwise properly available would not, given everything I have said this morning, protect the community from you. Such a sentence would not be sufficient to enable you to address the causes of your offending in time for release, such that a real risk of serious sexual offending-related harm would persist on your release.59
Imposition of a minimum term of imprisonment
[77] Having decided to impose preventive detention, I must also determine the minimum period of imprisonment you must serve before being eligible for release.
This cannot be less than five years.60
[78] Given the finite sentence that would otherwise be sufficient to reflect the gravity of the offence is less than this,61 and (as is common) the health assessors were unable to say how long it will be until you no longer pose a risk to the community,62 I consider the minimum five year period appropriate.
56 Section 87(4)(e).
57 Counsel refers to R v Parahi [2005] 3 NZLR 356 at [86].
58 At [86].
59 Compare R v Webster HC Auckland CRI-2006-090-72, 15 March 2007, to which Ms Creswell referred me.
60 Sentencing Act 2002, s 89(1).
61 Section 89(2)(a).
62 Section 89(2)(b).
Sentence
[79]Mr Dixon, please stand.
[80] On the five charges of doing an indecent act on a child, two charges of doing an indecent act on a young person, and assault with intent to injure, you are sentenced to preventive detention, with a minimum period of imprisonment of five years.
[81] On the charges of breaching your extended supervision order, you are sentenced to six months’ imprisonment in respect of each charge, to be served concurrently with the sentence of preventive detention.
[82] On the charge of breaching your sentence of community work, you are sentenced to two months’ imprisonment, to be served concurrently with the sentence of preventive detention. That means that does not add to the effective sentence, Mr Dixon.
[83] The application for review of the sentence of community work imposed in the District Court at Hamilton on 14 June 2018,63 which is not opposed, is granted on the basis of your near-complete failure to comply with that sentence. That sentence is cancelled, and sentences of imprisonment imposed as follows, all of which are to be concurrent on the sentence of preventive detention:
(a)for breach of your extended supervision order on 22 March 2018, six months’ imprisonment;
(b)for possessing a knife in a public place on 24 March 2018,64 two weeks’ imprisonment;
(c)for breach of your extended supervision order on 24 March 2018, six months’ imprisonment.
63 Pursuant to Sentencing Act 2002, ss 68(1)-(3), 71, and 72.
64 Summary Offences Act 1981, s 13A. Maximum penalty three months’ imprisonment or a fine not exceeding $2,000.
[84]The sentence of intensive supervision is also cancelled.
[85] On the charge of theft, you are sentenced to two weeks’ imprisonment, again to be served concurrently with the sentence of preventive detention.
[86] The end result is that you are sentenced to an indeterminate term of imprisonment and will serve no less than five years.
[87]You may stand down.
Hinton J
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