R v Duvelle CA198/03

[2003] NZCA 404

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA198/03

THE QUEEN

v

CHAZ ANTONIO DUVELLE

Hearing:         16 October 2003

Coram:McGrath J Goddard J Laurenson J

Appearances: P J Kaye and N R Webby for Appellant

K Raftery for Crown

Judgment:      5 November 2003

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

Introduction

[1]      The appellant was convicted by a jury on one representative count of having sexual intercourse with a girl under the age of 16 between 1 July 2001 and 13 May

2002, and one count of living on the earnings of the prostitution of the same girl between 1 January 2002 and 11 May 2002.  The girl was aged 14 and 15 years at the

time.  The appellant was acquitted by the jury of two counts of sexually violating the

R V CHAZ ANTONIO DUVELLE CA CA198/03 [5 November 2003]

same girl, consent having been admitted by her.  He was also acquitted of assaulting the girl.

[2]      The appellant was also due to be tried on two charges relating to another woman but he pleaded guilty to these charges on the morning of trial.  Those charges were living on the earnings of prostitution between 15 July 2001 and 14 December

2001 and assaulting the woman during the same period time.   As is evident, the appellant’s  offending against  both  of these  women  overlapped  in  time  to  some degree.

[3]      Following trial, the appellant was sentenced to preventive detention on the charge of having unlawful sexual intercourse with the teenage girl (which carries a minimum  non-parole  period  of  five  years’  imprisonment)  and  to  concurrent sentences of three years’ imprisonment on the two charges of living off the earnings of prostitution and to one years’ imprisonment on the charge of being a male he assaulted a female.

[4]      Although accepting that he did qualify for a sentence of preventive detention on the charge of unlawful sexual intercourse, the appellant’s case was argued on the basis that the imposition of such a sentence in the circumstances of his case was manifestly excessive.   The Crown had  actively sought a sentence of preventive detention because of the particular circumstances of the appellant’s current offending and his prior history of sexual offending, although the Crown advised that it would not in “normal circumstances” have sought that sentence for a first offence of unlawful sexual intercourse.

The facts

[5]      The essential facts were conveniently set out by the Judge in his sentencing notes.  He referred to the teenage complainant as B and to the other complainant as A.  The facts as he found them to be were as follows:

I find that A was a 20 year old woman who formed a relationship with you in April 2000. This lasted off and on with breaks until October 2001. She moved in to live with you. During that period you regularly assaulted her

and that gives rise to the first two charges ... In July 2001 you told her that you wanted her to work in a massage parlour to earn money so that you could do up your car. She initially refused. Notwithstanding your claims, … I find as a fact that she was not involved in prostitution before you induced her to begin with it.

… Being fearful of you, she did begin to work in a massage parlour and her earnings were taken by you. After she had worked in that particular parlour for about 12 weeks you decided that she was not earning enough there. Having made inquiries, you designated another massage parlour in Auckland and required her to move there where she made a good deal more money for you. You would always ensure that you were there when she ended each shift and required her to hand over the money to you immediately. I find that, although no exact figure is possible, approximately $15,000 in total was taken by you over the period of about three months that she was involved in prostitution at your instigation. That arrangement ended in October 2001 when  you  left  her  as  a  result  of  a  relationship  that  you  had  already commenced with the other complainant B.

You met B when she was 14 years of age and she had lodged a message on a telephone chatline. She was born in 1986 but told you when you responded to the chatline message that she was 18 years of age. The two of you arranged to meet. You took her back to your home address, plied her with alcohol and had sexual intercourse with her. It is not suggested that there was any rape involved in that. From that point on you arranged to see her about two to three times a week, on each occasion having sexual intercourse with her. Then in 2001, a week before she turned 15, she told you her true age. You were initially shocked by that but nevertheless arranged to meet her at her father’s address in her father’s absence where you  had  sexual  intercourse  with  her.  You  continued  to  have  sexual intercourse with her on a regular basis through until you ultimately went your separate ways in May 2002.

… As with the earlier complainant, more or less immediately upon her moving in with you B was asked by you to begin work as a prostitute to gain money for you.

… In January 2002 she accepted your persuasion to begin prostitution. That began in a small way with an appropriate advertisement on a telephone chatline which resulted in several customers coming to your home to have sex with her in return for money while you hid nearby. She was to put the money from these clients into a jar beside the bed. As soon as the client left you would take the money. That, however, was not sufficient and you then persuaded her to take employment with a massage parlour.

… Unhappy that she was not earning enough at the first massage parlour, you organised a job for her at a different massage parlour where she was working five nights a week seeing between three and eight clients. You would drop her off at the parlour and pick her up at the end of her shifts and immediately demand that she hand over her earnings. I find that in total the money that she was able to earn for you over that period was in the order of

$40,000.

The appellant

[6]      The appellant was a man aged 46 years at the time of sentence.  He first came to official notice at the age of 15, when he was convicted of indecently assaulting a female over 16 and admonished and discharged.  Over the next 18 years he amassed

18 further convictions, with none of particular relevance to this case, although three did involve violence and merited a period of incarceration in borstal.   In 1993 the appellant was tried and convicted on a raft of offences involving serious sexual and violent assaults on women. Four different complainants were involved and the offences included abduction for sex, assault with intent to rape, sexual violation by unlawful sexual connection, indecent assault, aggravated injury and a number of other crimes.  The appellant denied all of the offending but was convicted by a jury at trial.  He was sentenced to an effective total sentence of 11 years and 7 months imprisonment.  This total sentence, which was determined on a cumulative basis but with regard to the totality principle, was upheld by this Court on appeal.   The offending concerned spanned a 7 month time period and reflected a predatory and aggressive  attitude  to  women  with  some  disturbing  and  sinister  features.    For example, one complainant was stupefied by the appellant, after being lured to his house on a pretext, and was then indecently assaulted and sexually violated by him whilst she was unconscious.  An aggravating feature was the fact that the appellant took a number of photographs of the victim whilst she was naked and being violated by him.  His offending against the other three complainants also involved deception, as well as coercion and violence.   The appellant denied his guilt in respect of all those offences and demonstrated no remorse afterward.  This Court, after giving the lengthy total sentence of an effective 11  years and 7 months “very careful and anxious thought”, said:

One matter of major concern is the protection of the public.  These offences, all within a  period of  7  months,  involved  four  different  women.    They involved not only deception, but a degree of brazenness and a complete absence of remorse. The Judge commented as follows:

"The Crown has described your giving of evidence as calm, unemotional and unrepentant.  I was unable in the course of the trial to finally conclude whether you were unwilling or unable to acknowledge the reality of what undoubtedly occurred.  I accept the

Crown's submission that although you are not to be additionally punished because you chose to put the Crown to proof, your absolute determination as to your own rightness is a matter of concern when one comes to consider the protection of the public.  I cannot ignore what appears to be your determination to have your own way come what may.   From the total chronology and the way in which you presented yourself in Court, you are a man of fixed view, of determination and totally self-centred.  If you wish to obtain sexual gratification then you will do  it  whether  you  can find  a  willing partner or not."

There can be no criticism of the sentence of 6 years in respect of the major offences against the first complainant, nor against the addition of a further

2½ years cumulative on that in respect of the second complainant, if the total

offending had stopped at that point.   A total sentence of 8½ years would have been within the appropriate range for the offences on the first two victims.  But the offending did not stop there, and we are unable to accede to the submission that a total sentence of 8½ years would have been adequate having regard to the totality of the offending.   There was the third complainant, inveigled into his car by the false offer of a ride to the North Shore, and then taken to the west of Auckland in the direction of Piha, detained against her will and finally managing to escape from the moving vehicle.  There is the assault on the fourth complainant and the attempt to strangle her.  These were further serious offences, and if standing on their own would have attracted a very substantial sentence.   In the event, the Judge having referred to the totality principle, added a further 2½ years for the one and 7 months for the other.

[7]      As is evident from the quoted passage above, the protection of the public was a major concern for this Court in 1993 when dismissing the appellant’s appeal.

[8]      The appellant served nine years of that sentence and was released on parole on 1 March 2000, being his final release date.   Probation records reveal that the Police opposed his early release on bail in 1998, predicting that he “is a dangerous person who … will commit further offences after his release”.  A pre-release report, written for the national Parole Board by the Probation Service in September 1998, stated that the appellant “expressed no regret, remorse nor empathy with regards his convictions nor sentiments towards the victims”.  Probation records also indicate that he made no effort to address the cause of his offending whilst he was serving his time in prison.

[9]      Following  his  release  from  prison  in  March  2000  the  appellant  quickly formed a relationship with a much younger woman (who we shall refer to as C). This was some five months after his release.   He described her as his fiancée but

their relationship ended at the beginning of 2001 and she went to live with her father. A protection order was taken out by the father against the appellant, allegedly to prevent ongoing harassment of the young woman by him.  By that time the appellant had commenced his relationship with A.  Towards the end of his relationship with A (in about July 2001) the appellant began to coerce her into prostitution.  At the same time he was commencing a new relationship with B.  After A eventually broke away from the appellant, at about the end of 2001, he coerced B into prostitution.  This was from January 2002.   The point of this particular narrative of events is that, within five months of his release from prison for serious sexual offending and whilst still  on  parole,  the  appellant  had  begun  actively  seeking  out  vulnerable  young women  for  sexual  purposes  involving  his  financial  gain,  who  he  ultimately physically and mentally abused.

[10]     During the period of his overlapping relationships with A and B the appellant was also involved in Family Court proceedings concerning his daughter.   On 12

October 2001 a specialist psychologist, Dr Visser, interviewed the appellant for the purpose of reporting to the Family Court.  Her report encompassed both personality assessment and assessment of risk for violence.   Dr Visser had available to her a number of sources of information, including the pre-sentence report prepared by the Probation Service for the 1993 offending, the sentencing notes of Robertson J who sentenced the appellant in 1993, and the appellant’s pre-release report prepared by Probation in September 1999.   Ultimately Dr Visser’s report was referred to the Crown by the Family Court and produced to the Judge for present sentencing purposes.

[11]     Amongst Dr Visser’s numerous findings, several are of particular relevance to this appeal.   Under the headings of Personality Disorder and Personality, Dr Visser noted:

Mr Tubou was assessed in prison and scores high on the PCL-R.   This instrument indicated that Mr Tubou fulfilled the diagnosis of an antisocial personality disorder.  The history that Mr Tubou gives along with the two personality assessments that I have done would strongly support such a diagnosis.

…

Mr Tubou demonstrates a cluster of personality characteristics that satisfy the diagnostic criteria of an antisocial personality disorder as set out by the Diagnostic and Statistical Manual of Mental Illness IV (DSM IV).  The most striking aspects of this disorder is that a person is completely self-centred or narcissistic.  There is very little of any concern for others.  Often this lack of concern is demonstrated by anger at the other who are unable to keep up or whom are perceived to be attempting to destroy the individual’s good name or character.   The person is only concerned with themselves and will do anything to satisfy their own needs, even at the cost of the psychological or physical wellbeing of others.  In interview they often spent most of the time talking about themselves and their goals in life and the hardships they have suffered.

The other aspect of the disorder is a history of difficulties with authority and the law.   Mr Tubou demonstrated an extensive history of trouble with authority figures in school and his friends and employers.  He also [has] a long history of trouble with the law.  Mr Tubou admitted that he did a lot more than what his conviction sheet shows amongst those is serious violence towards others.   They often minimise their offending or violence towards others.

Mr Tubou has demonstrated all of these characteristics.

[12]     Under the heading Clinical Items, Dr Visser recorded inter alia:

He  has  not  responded  well  to  treatment.    He  is  still  denying  that  he committed the sexual crimes for which he has served 8 years in prison.  He believes that his former partner has framed him and that the women that made the claims got their financial rewards through ACC payments.   He insists that he will be able to prove this in time as he is able [to] afford for private investigators to find the evidence.

[13]     Under  the  heading  Risk  for  Violence,  Dr  Visser  offered  the  following opinion:

The HCR 19 places Tubou in the high level of risk for violence.  This means that there is a high likelihood that Mr Tubou will act violently towards others in the future.   It is hard to predict with some certainty what violence he would  commit  but  the  indicators  all  point  that  he  is  likely  to  commit violence.

[14]     A notable feature of Dr Visser’s report is that the appellant presented at one interview with her in company with C, who he portrayed as his current and future partner.  This was however at the time he was also having a relationship with both A and B.

[15]     Following  his  conviction  for  the  subject  offending,  the  appellant  was remanded by the Judge for psychological and psychiatric reports pursuant to s121

Criminal Justice Act 1985 for the purpose of determining whether a sentence of preventive detention should be imposed.  The appellant was interviewed first by Dr Moskowitz, a forensic psychologist, and subsequently by Dr Wyness, a consultant psychiatrist. Various documentation was forwarded to both of these medical experts. However whilst the information included a copy of the appellant’s conviction list, it did not include any information about his 1993 sexual offending.  Nor does it appear to have included any detailed description of the offending for which the appellant was to be sentenced by the Judge.   The information provided simply included the Police caption sheet setting out the charges and the indictment.  No copies of any probation reports were included.

[16]     Dr Moskowitz commenced his report by stating that the appellant was the sole source of all historical information and that his account of events had not been validated by any source.  In respect of the subject offending, Dr Moskowitz recorded the following as the appellant’s version of events:

Following his release from prison in 2000 (his eight year prison sentence is discussed below), Mr Tubou met the victim through a telephone ‘chat line’. He claims that she contacted him first, and initially claimed that she was 18 years old (a fact not in dispute).   Mr Tubou describes a very complicated personal life over the two years from 2000 until his arrest in 2002, involving significant relationships (including living together) with three separate women, the details of which are not particularly relevant to this evaluation. He portrays himself as motivated primarily by genuine caring and concern for the women involved, and sees his difficulties as being primarily due to his victim’s jealousy when she discovered he was involved with another woman.  Mr Tubou further claims that the victim was a prostitute prior to his meeting her, and firmly denies profiting from her work.   Mr Tubou pled guilty to similar charges with another victim, but claims that he did so only in an attempt to keep the two cases from being tried together; however, he continues to maintain his innocence of those charges too.  Mr Tubou claims that he and the victim were planning to get married before his arrest.

[17]     The historical narrative given to Dr Moskowitz by the appellant in relation to his 1993 offending was in the following terms:

In 1993, Mr Tubou was convicted of two violent (‘male assaults female’ and

‘aggravated  injury’)  charges,  and  six  sexual  charges  (‘indecent  assault’,

‘abduction for sex’, ‘unlawful sexual connection x2’, ‘attempted unlawful sexual connect’, and ‘assault with intent to commit rape’).   These charges involved a woman with whom he was in a de facto relationship from 1989. He has steadfastly maintained his innocence on these charges, which he claims his ex-partner made up at the instigation of two other men, primarily to gain possession of his car and other financial holdings.  He claims to have

fought the charges all the way to the Privy Council, and continues to attempt to ‘clear his name’.  Mr Tubou was released in mid-2000.

[18]     As is evident from the above passages from Dr Moskowitz’s report, the appellant did not acknowledge his guilt in relation to his offending against A, despite his guilty pleas in her case; and nor did he acknowledge his guilt in relation to his

1993 offending.   In addition, he materially misled Dr Moskowitz about his 1993 offending by describing the charges as having concerned only one victim.

[19]     Dr Moskowitz found the appellant intelligent and plausible but described his presentation   as   suggesting   “narcissistic,   antisocial,   and   possibly   histrionic personality traits”.  His expert opinion for the Court, in respect of the likelihood of the appellant committing a qualifying sexual or violent offence upon the termination of  his  sentence,  was  however  tempered  by his  reluctance  to  opine  on  a  future assessment of risk of harm to others.  In this regard he said:

… there is no way of knowing at this point how Mr Tubou may respond to the  treatment  and  rehabilitation  opportunities  offered  to  him  during  the course of his sentence, which may have a significant impact on his future risk.

[20]     Dr Moskowitz did, however, go on to opine that:

It is not at all clear what treatment needs Mr Tubou has that could benefit from individual or group psychotherapy.  The personality traits linked to his criminal  activity  are  unlikely  to  change  under  any  form  of  treatment available in prison or the community; indeed, there is some evidence that persons classified as psychopathic, which Mr Tubou may be, do not respond well to conventional treatments and may even get worse.

[21]     In conclusion Dr Moskowitz advised:

Nonetheless, given his history and the nature of the charges against him, I would have to conclude that, were he to be released from prison today, it is fairly likely that Mr Tubou would engage in criminal activity of some sort. However,  whether that  activity would  include  specific  sexual  or  violent offences is much more difficult to say, as the evidence on this point is much more equivocal.

[22]     The  separate  interview  and  assessment  of  the  appellant  conducted  by Dr Wyness followed along the same lines as that conducted by Dr Moskowitz and the conclusions were not dissimilar.

[23]     Dr Wyness had also received a less than truthful account about the 1993 offending from the appellant, who had advised Dr Wyness as follows:

… His subsequent offence in 1993 in which he was convicted of abducting a woman  over  16  for  sexual  purposes,  assaulting  her,  causing  aggravated injury to her, indecent assault and unlawful sexual connection.  Mr Duvelle believes he was “set up” for this.

Although the circumstances of his offending in 1993 were not very clear from his description, it appears that they had some similarity to the index charges and conviction.

[24]     In relation to risk issues, Dr Wyness noted that “attitudes tolerant towards sexual assault is a predictor of sexual recidivism”.  Significantly, however, he then records what the appellant had to say about his attitude towards sexual assaults on women:

… Mr Duvelle does not approve of deliberate sexual assault, but he has nevertheless condoned his girlfriends or partners working as prostitutes.

[25]     From the above it is clear that Dr Wyness was not appraised by the appellant, or through the information supplied to him, that the appellant’s 1993 offending had involved violent sexual assaults on two of his victims and a violent physical assault on the third.

[26]     Under the heading Prognosis, Dr Wyness concluded inter alia as follows:

… Mr Duvelle does not suffer from a psychiatric illness.  He does however satisfy the criteria for Antisocial Personality Disorder.  This, as with other personality disorders, tends to be a persisting, life long set of personality and behavioural traits which predispose a person to criminal offending. …

It is my opinion that Mr Duvelle does not seek out to assault or otherwise sexually attack woman.  He does however, seem to seek out younger women with  whom to  have  a  sexual  relationship,  even  though  there  may  be  a substantial age gap between himself and them.  He has not desisted from at least one relationship even when fully aware that his partner was under the legal age of consent.  It appears to me that this means of seeking out such relationships have been present for some years and could continue.

[27]     In  the  pre-sentence  report  prepared  for  the  Judge,  the  probation  officer traversed the appellant’s recorded history with the Probation Service, some of which has already been referred to above.   Significant aspects of that report are the appellant’s recorded advice to the probation officer that he only pleaded guilty to the

offences  against  A  for  “tactical  reasons”  and  that  he  does  not  accept  any responsibility for either the 1993 crimes or his current offending.   The probation officer concluded his report as follows:

Mr Duvelle’s total denial of wrongdoing suggests that his behaviour is unlikely to change in the future and that he will probably continue to push the boundaries of lawful behaviour.  His risk of reoffending is considered to be high.

The sentencing judgment

[28]     The Judge approached the sentencing task as requiring a consideration of s87

Sentencing Act 2002, the transitional provisions of s153 of that Act and s75 of the Criminal Justice Act 1985.  That exercise required a determination as to whether the appellant would have qualified for preventive detention under both the earlier and the current legislation.  The approach the Judge took (agreed to by counsel) was to go through the requirements of s87, confident that if they pointed the way to preventive detention, then they would also have pointed in that direction under s75

Criminal Justice Act 1985.

[29]     In determining whether the appellant was an offender who was likely to commit another qualifying sexual or violent offence on release from prison and therefore posed a significant and ongoing risk to the community from which it deserved protection, the Judge considered each of the criteria listed in s87(4) in turn. These are: a pattern of serious offending; the seriousness of harm to the community; the tendency to commit serious offences in the future; the absence or failure of rehabilitative attempts; and the preference for a finite sentence if possible.

[30]     The Judge found that an established pattern of serious offending was not an eligibility requirement under s87(4), but simply one of the relevant considerations to be taken into account.   Nevertheless he regarded the 1993 episode of offending, involving   as   it   did   four   separate   complainants   and   serious   offending,   as demonstrating such a pattern in the appellant’s case.

[31]     In terms of serious harm, the Judge found that was reflected in the victim impact reports.

[32]     Insofar  as  any  tendency  on  the  part  of  the  appellant  to  commit  serious offences in the future was concerned, the Judge found the reports of Dr Visser, Dr Moskowitz and Dr Wyness of benefit.  He noted Dr Visser’s conclusion that there was  a  high  likelihood  of  violence  and  high  level  of  risk  of  violence  from  the appellant in the future.  He noted that Dr Wyness, whilst relatively non-committal about the future risk of offending, nevertheless considered the appellant to have an antisocial   personality   disorder,   which   involved   a   predisposition   to   criminal offending; and noted also that Dr Moskowitz’s expressed opinion was that were the appellant to be released from prison straight away it is likely that he would engage in criminal activity of some sort.  However, the Judge also noted that Dr Wyness’ and Dr Moskowitz’s conclusions were based on incomplete and (in some material respects) unreliable information.

[33]     The Judge then said:

It is important not to overlook the fact that the offences for which you come before the Court for sentencing today do not involve violent non-consensual sexual offences, nor is the order of violence against complainant A at the highest level in the criminal calendar. That is something that has caused me to pause long and hard on the ultimate question which is whether you are likely to commit another qualifying sexual or violent offence and whether you pose a significant and ongoing risk to the safety of the community. What I cannot ignore, however, are the following matters.

[34]     The Judge then listed three determining factors which he found militated in favour of a sentence of preventive detention for the future protection of the community from the appellant’s criminal depredations.  First, the pre-sentence report which predicted a high risk of reoffending with no indication of any effort having been made by the appellant to address the cause of his offending at any time.  This prediction the Judge found not inconsistent with the views of Dr Moskowitz and Dr Wyness and affirmatively supported by Dr Visser.

[35]     The  second  factor  that  weighed  with  the  Judge  was  the  demonstrated persistence of the appellant’s offending, which has been undeterred by the lengthy sentence of imprisonment he had already served for sexual offending.

[36]     The third and most worrying feature which, in the Judge’s view, required preventive detention, was the appellant’s complete lack of insight into the causes of his problems.  He said:

Weighing up the complete denial on your part, and the corollary that you can see no reason to change or embark on any kind of programme of treatment or modification of behaviour in the future, I have concluded that you are likely to commit another qualifying sexual or violent offence on release. I do not think that a finite sentence would preserve sufficient control over you before or after release. Preventive detention is needed.

[37]    Finally, the Judge referred to the five year minimum non parole period prescribed under the legislation, which gives the appellant the opportunity to respond within that period if he wishes to obtain an early release.

Conclusion

[38]     As  the  Judge  noted  at  the  conclusion  of  his  sentencing  remarks,  the community requires ongoing protection from the appellant’s criminal activities because of his demonstrated inability and unwillingness to change his ways.   His established history of offending against women, particularly young and very vulnerable women, precludes the community from having any confidence that he will reform until such time as he demonstrates his preparedness to do so.

[39]     The reports of the three experts and the view of the probation officer is that unless change is achieved the appellant will continue to pose a risk to others and in Dr Moskowitz’s words “may even get worse”.  That is the unanimous effect of the reports, notwithstanding a natural  reluctance on the part of Drs Moskowitz and Wyness to confidently predict future risk in the absence of knowing what treatment options may be available to the appellant and actually availed of by him whilst he is in prison.  It needs to be borne in mind of course that neither Dr Moskowitz nor Dr Wyness had the benefit of all relevant information when making their assessments of the appellant, and they were given less than a truthful history by him.   However, even  on  that  limited  basis,  their  common  diagnosis  was  one  of  a  narcissistic, antisocial personality.

[40]     Dr Visser’s findings on the likelihood of future risk to the community from the appellant were conclusive and in that regard her opinion accords with that of the probation officer.  The important and common feature of all the reports is that lack of insight, inability or unwillingness to change criminal thoughts and behaviour are tangible indicators of future risk.

[41]     Whilst it is not common for a sentence of preventive detention to be imposed for a conviction for unlawful sexual intercourse with a teenage girl, that offence has been specified by the Legislature as qualifying an offender for preventive detention. In a case such as the appellant’s, where this qualifying offence has been preceded by a clearly discernible pattern of sexual and violent offending against young women, a protective approach must be seen as expedient in the community’s interest.

[42]     The  appellant’s  episode  of  offending  in  1993  was  bad  of  its  type  and constituted a pattern of criminal behaviour, albeit spanning only a seven month period.  However, that pattern was interrupted only by the appellant’s incarceration over the following 10 years.  It is significant that he began to actively seek out young women for sexual purposes soon after his release in 2000 and that these sexual purposes quickly degenerated into criminal offending.  The statements made by this Court in 1993, when considering the appellant’s earlier appeal, foreshadowed the risk that the community would in future require ongoing protection from him.

[43]     A sentence of preventive detention is not a sentence of last resort: see R v C [2003] 1 NZLR 30 at para 6. However, as we have said the pattern evident in the appellant’s 1993 episode of offending (which concerned four different women), coupled with his resumption of criminal sexual activity with young women soon after his release from prison in 2000, demonstrates a clear need for him to be taken out of circulation until such time as he chooses to reform. Like the sentencing Judge, we take the view that a finite sentence of even nine years would not sufficiently meet the clear need to protect members of the community (such as the complainants in this case) from the appellant and it is therefore expedient for the protection of the public that he be detained for an indefinite period until such time as it can be predicted that he no longer poses the ongoing risk of harm. There is no indication that another finite term of imprisonment coupled with a minimum non-

parole period will effect any change in the appellant.  The lengthy prison term he has already served failed to modify his behaviour, as reflected in his complete absence of remorse or ability to accept any responsibility for his offending.  There is simply no present prospect of the appellant undertaking or responding to treatment.

[44]     If, however, the appellant does wish to impress the authorities that he is in future safe to be released back into the community after serving the minimum period of imprisonment, then it will be for him to take what positive steps are available to him to do so.  As this Court said in Solicitor-General v Seu (CA15/98, 6 May 1998):

The ability to influence their release on parole surely would motivate most prisoners to undertake treatment and to attempt to complete it successfully. There would be no such incentive with a finite term, …

Result

[45]     The appeal is dismissed.

Solicitors:

Crown Solicitors, Auckland