R v Edgerton

[2020] NZHC 1694

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-092-8422

[2020] NZHC 1694

THE QUEEN

v

NEVILLE ANDREW EDGERTON

Hearing:	14 July 2020
Counsel:	M S Williams for the Crown M Allen for the Defendant
Judgment:	14 July 2020

SENTENCE OF DUFFY J

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Manukau

R v EDGERTON [2020] NZHC 1694 [14 July 2020]

[1]                  Mr Edgerton appears for sentence today after pleading guilty to sexual connection with a young person,1 supplying methamphetamine to that young person2 and receiving stolen property.3 He also appears for sentence on one charge of breach of release conditions.4

[2]                  Today Mr Edgerton indicated through his counsel that he was not prepared to leave his cell. He did this at 9.00 am in the morning and for other reasons, namely, the late arrival of a supplementary psychological report, the sentencing had to be delayed until 2.15 today. Mr Edgerton has been in the Courthouse in the cells all day, and he has had ample time to think about whether he would change his mind. He has chosen not to. Having indicated he was not prepared to leave his cell, he signed a written waiver in the following terms:

My name is Neville Andrew EDGERTON. DOB: 30 August 1955

PRN: 5748695

I am at the Auckland High Court today for sentencing. I do not wish to attend my sentencing hearing. I consent to the sentencing going ahead in my absence. My lawyer told me that I need to appear in court to hear my sentencing.

I have told my lawyer that I am going to stay in the cells and that the Judge can sentence me in my absence. My lawyer Ms Allen can relay to me the sentencing outcome.

The note is then signed and dated by Mr Edgerton.

[3]                  I was initially concerned regarding the prospect of proceeding with sentencing in circumstances where Mr Edgerton was absent from the courtroom. Particularly as s 123 of the Criminal Procedure Act 2011 prohibits the Court from sentencing an offender charged with  category  2,  3  or  4  offences  in  his  or  her  absence,  as  Mr Edgerton is. Section 123 also provides that where a defendant is absent the Court may issue a warrant for their arrest.

1      Crimes Act 1961, s 134(1). Maximum penalty 10 years’ imprisonment.

2      Misuse of Drugs Act 1975 ss 6(1)(c) and (2). Maximum penalty life imprisonment.

3      Crimes Act 1961, ss 246 and 247(a). Maximum penalty 7 years’ imprisonment.

4      Parole Act 2002, s 71(1) maximum penalty one year imprisonment.

[4]                  I am satisfied however, that Mr Edgerton is not absent. He is present in the Court precincts and, if necessary, I could have him brought to the courtroom by force. I am however, not prepared to do that today and instead will accede to Mr Edgerton’s wishes and sentence him in his absence from the courtroom today. I will also direct that he remains in the Court precincts until such time as my sentencing remarks have been delivered. He will know his sentence and the reasons for it before he leaves the court precinct today.5 I should also add that in addition to having Mr Edgerton’s counsel, Ms Allen, confirm with him that he would not come to this Courtroom for sentence, the security officer in charge of Mr Edgerton who is also in open Court today, confirmed that he will not willingly come to this Courtroom.

[5]                  I shall continue now with my sentencing remarks and these shall be addressed to Mr Edgerton as if he were in the courtroom to receive them.

[6]                  Mr Edgerton, each of the charges you have pleaded guilty to carry their own penalty, ranging from one year to life imprisonment. However, the Crown has asked me to consider imposing an indeterminate sentence of preventive detention because of the risk of sexual offending following your release from a finite sentence.

[7]                  I note that you have a prior conviction for murder and were sentenced to life imprisonment. The current offending on which you appear for sentence was committed whilst on life parole. You have since been subject to a final recall and are back in custody.

The offending

[8]                  You are before the Court today for convictions arising out of the following circumstances. Being subject to a sentence of life imprisonment for your conviction for murder in 1985, in 2016 you were released from custody. In mid to late December 2018 you met C, the victim of your offending, who was 15 years old at the time. C and two associates had been smoking cannabis in an abandoned shed in East Tāmaki, and you noticed this and followed the boys into the shed. You started smoking methamphetamine and conversed with the boys, asking them how old they were,

5      See R v Utatao [2018] NZHC 2044 where Lang J adopted a similar procedure.

where they went to school and what drugs they took. After a while the boys left and you stayed behind.

[9]                  C subsequently returned to the shed and located a note that you had left asking whether C would like to meet up. You left your telephone number on the note. C then made contact with you and you arranged to meet up back at the abandoned shed. You met up on 23 January 2019. Once inside the shed you wired the door shut to ensure that you were not disturbed, and perhaps to ensure that C could not leave. You prepared the methamphetamine you had brought with you and showed C how to smoke it from the pipe. You encouraged C to smoke from the pipe and he did. Together you smoked methamphetamine for about an hour. During this time you discussed your sexual orientation and identified yourself as bisexual.

[10]              At some point in the conversation you asked C whether he had ever received oral sex from a man before and offered to perform oral sex on him. C accepted your offer and oral sex ensued. Following this you both continued to smoke methamphetamine and you asked C if he would like to perform oral sex on you. C agreed, and again oral sex ensued. After this you smoked more methamphetamine before leaving the shed. Later that same day you texted C asking him to keep the incident “between us”.

[11]              Approximately a week later, on 29 January 2019, you texted C advising him that you might have a buyer for some jewellery C had stolen in a burglary the month prior. On 14 February 2019 you made arrangements to meet C so that you could collect the jewellery and take it to the buyer. However, later that day you advised C that the buyer had been “busted” with stolen jewellery. You did not see C again.

Personal circumstances – age – life experience

[12]              Mr Edgerton, you are 53 years old. You report experiencing grooming and sexual assault at a young age and attribute your subsequent use of drugs and alcohol as a mechanism to cope with this. At the age of 18 you committed your first serious offence and in 1985 were convicted of murder and sentenced to life imprisonment. In April 1994 you were released on parole. Following the end of a significant intimate relationship in 2009 you committed your second serious offence in 2009 and were

returned to prison. You were again paroled in 2016 but following the breakdown of your relationship with your brother you turned to drugs, alcohol and gambling and in 2019 engaged in the current offending. This illustrates that throughout your life you have struggled with your sexuality and with rejection. You have coped with this by using illicit substances. On each occasion when you have seemingly felt rejected you have resorted to serious criminal conduct.

Victim impact statements

[13]              The victim impact statements have been received from C’s mother and his aunt. Both statements record that your offending has had a lasting negative impact on C who is described as changing from an adventurous, happy-go-lucky young man to somebody who is withdrawn, depressed and battling low self-esteem. C is also said to suffer from nightmares, anxiety, depression, mood swings, panic attacks, weight loss, and suicidal thoughts. It is clear that your offending has resulted in significant harm to C.

[14]              Not only has your offending impacted C, it has had widespread impact on his family who suffer feelings of guilt and self-blame. Both C’s mother and aunt report that their lives will never be the same again; that they constantly worry about C and have to expend a great deal of resources to ensure he is under constant supervision.

Pre-sentence report

[15]              The pre-sentence report was prepared by the Department of Corrections without your input as you refused to participate. It records that you have been granted life parole on two occasions with both periods coming to an end due to serious sexual and violence related offending. Your compliance on parole was deemed satisfactory, however, the report writer is of the view that it was fraught with manipulation, reporting that on multiple occasions you reported your abstinence from drugs and on another occasion declined to undergo a drug test as you had taken unprescribed codeine for hernia pain. The report writer says that these were tactics that you used to allow you to continue engaging in drug use. The report also records that at your recall hearing you largely blamed your offending on the inability of Corrections to provide you with adequate access to treatment. On account of this, you are assessed as being

unmotivated to change and deemed to be a high risk of reoffending and a very high risk of harm. The report recommends that a sentence of preventive detention is appropriate.

Crown submissions

[16]              Mr Williams, for the Crown, submits that a sentence of preventive detention ought to be imposed on the sexual connection charge, with a minimum period of imprisonment (MPI) of five years, to be served concurrently with the sentence of life imprisonment previously imposed for murder.

[17]              In the alternative, if the Court finds that a finite sentence is appropriate, that a starting point of four years ought to be adopted for the sexual connection charge, that this should then be uplifted by one year for the charge of supplying methamphetamine, by a further six months for the receiving charge and a final six months to reflect a history of prior convictions. This amounts to an overall starting point of six years’ imprisonment. Mr Williams says there are no mitigating factors but acknowledges that you are entitled to a 25 per cent discount for your guilty pleas. This would result in a finite sentence of four and a half years’ imprisonment. If a finite sentence is imposed, Mr Williams says that you should be required to serve a minimum term of two thirds of this sentence.

Defence submissions

[18]              Your counsel, Ms Allen, accepts that a sentence of imprisonment is inevitable, however, she says that preventive detention is not warranted. Ms Allen submits that on the lead charge of sexual connection a starting point of three and a half years’ imprisonment should be adopted and that an uplift of 12 months is appropriate to reflect both the supply and receiving charges. She also accepts that an uplift of no greater than six months is appropriate to reflect your prior offending. She agrees that there are no relevant mitigating factors relevant to you or your offending, but that you are entitled to a discount of 25 per cent to reflect your early guilty pleas. This results in an end sentence of three years and nine months’ imprisonment. If a finite sentence is imposed, Ms Allen says that an MPI is not warranted given that you are already subject to an indefinite sentence for the earlier murder conviction.

Approach to sentencing

[19]              In sentencing you I must impose a sentence that holds you accountable for your offending, denounces your conduct, deters you from future similar offending and is facilitative of rehabilitation. I must also impose the least restrictive sentence available. Given the serious nature of the charges you face a sentence of imprisonment is inevitable. The key determination for this Court is whether a sentence of preventive detention is necessary to protect the community from the ongoing risk you pose.

[20]              In determining whether a sentence of preventive detention is necessary I must first, in accordance with the usual approach to sentencing, assess the finite sentence that reflects the totality of your offending. Then, if that end sentence is insufficient to protect the public, I must determine whether the discretionary power to impose a sentence of preventive detention should be exercised. In first assessing the appropriate finite sentence I must follow a three-stage approach; I must adopt a starting point that is reflective of the totality of your offending; I must then adjust this starting point to reflect aggravating or mitigating factors personal to you; lastly, I must provide a deduction for your guilty pleas. I must also consider whether an MPI beyond the default one third ought to be imposed.

Discussion

[21]              In the sentencing discussion I do not propose to read out the case footnotes or any footnote reference to the cases.

[22]              Mr Edgerton, you appear for sentence on three charges, those being the charge of sexual connection with a young person, receiving stolen property and supplying methamphetamine and the charge of breaching release conditions. The lead charge, that being the most serious, is the charge of sexual connection. There is no tariff judgment for sexual connection with a young person, however, in R v H the Court of Appeal provided guidance on appropriate starting points, stating, “the starting point

… could be fixed at four years’ imprisonment”.6 This guidance has been adopted in a range of Court of Appeal cases,7 and in R v Johnson the Court stated:8

[17] We consider that the four year starting point in R v H is still a useful reference point in relation to sentencing for sexual connection with young persons, where the offending shares features present in that case. Particular aggravating features in R v H were abuse of trust, a significant age gap between the offender and the victim, full penetrative sex on a number of occasions, and significant adverse effects on the victim. Where aggravating features in R v H are present, a starting point of four years may be appropriate. Other aggravating factors not present in R v H may be seen as increasing culpability. Such features could include grooming, or abusive and demeaning behaviour. Where there has been no breach of trust as in R v H but the same aggravating features are present, a lower starting point will be appropriate. A different combination of aggravating and mitigating factors might produce yet another result. It follows that the starting point of four years should be seen as no more than a mid-point in the range of offending where there is moderate culpability.

[23]              Accordingly, the four year starting point referred to in R v H is merely a guideline and the ultimate starting point will fall within a reasonable vicinity of this point depending on the aggravating features deemed to be present in the offending in question. With regard to R v H Mr Williams submits that the relevant aggravating features include vulnerability of the victim, premeditation, multiple offences and the degree of harm caused by the offending. Ms Allen is largely in agreement with these factors, however she notes the age disparity between you and C, you being 52 years of age at the time of the offending and C being only 15. That is another aggravating factor with which I agree. The Crown refers to multiple sexual acts as forming an aggravating factor of the offending which I accept. It is evident that unlike in R v H here there was no abuse of trust, there is only one incident involving multiple acts, and penetrative sex did not take place. However, the victim was particularly vulnerable given the age disparity and the fact that you had wired the doors shut and supplied him with methamphetamine. As such, a starting point of between three and half to four and a half years’ imprisonment is appropriate.

6      R v H [2008] NZCA 237.

7      R v Brunie [2009] NZCA 300; R v Burdett [2009] NZCA 366; R v Davidson [2008] NZCA 484; R v Misileki [2008] NZAC 513.

8      R v Johnson [2010] NZCA 168.

[24]              Counsel for the Crown also refers me to R v AM, the tariff decision for sexual violation.9 Mr Williams says that had the charge been filed pursuant to ss 128 and 128A it would have fallen within band one, warranting a starting point of between six and eight years. Although that may be the case, I do not find the comparison particularly helpful given the bands apply only to sexual violation, a charge involving coercion and with a much higher maximum penalty. As such, I prefer to have recourse to the various cases both Mr Williams and Ms Allen have referred me to involving sexual conduct with a child under 16 years. These cases provide a useful cross-check to the approach in R v H.

[25]              I have had recourse to: R v Anand,10 R v Page,11 R v Ball,12 Jackson v Crown Law Office,13 and Police v Ngawhika,14 where starting points of between three and a half and five years’ imprisonment were adopted. Mr Williams contends that the

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

10 Anand v R [2015] NZHC 397: in this case Mr Anand was convicted of sexual connection with a young person and two charges of doing an indecent act on a young person. Mr Anand offended against a 13 year old girl, stroking her body and squeezing her breasts. After the initial incident they communicated regularly via text message and spoke on the phone. The conversations became sexually explicit and Mr Anand encouraged the victim to participate in phone sex. During this period the two met on multiple occasions. When they were together Mr Anand touched the victim around her genital area and touched and sucked her breasts. On two occasions the offending escalated to oral sexual connection where he put his penis in her mouth and moved her head back and forth until he ejaculated. For the charge of sexual connection, the Court adopted a starting point of three and a half years’ imprisonment.

11 R v Page [2016] NZHC 2762: Mr Page was convicted on six charges of sexual conduct with a person under the age of 16; four related to sexual connection and two related to doing an indecent act. Mr Page met the victim when he was 10 years old and would buy him cigarettes and give him money for alcohol. When the victim was 12 he watched pornography with Mr Page and Mr Page placed his hand on the victim’s penis and began to masturbate him. He then performed oral sex on the victim before engaging in anal sex. When the victim was 14 he visited Mr Page’s house and again Mr Page engaged in anal sex with the victim. For the next four years Mr Page continued to ask the victim for sex but he refused. On the final occasion Mr Page and the victim watched pornography at his house, Mr Page began masturbating the victim, each party performed oral sex on the other and then they engaged in anal sex. For the totality of Mr Page’s offending he received a starting point of five years’ imprisonment.

12 Ball v R [2011] NZCA 43: Mr Ball was convicted on two charges of sexual connection. The offending in this case arose when the victim stayed over night at a friend’s house, where Mr Ball was also staying. While Mr Ball and the 14 year old complainant were watching TV Mr Ball persuaded the victim to allow him to suck his penis and then for the victim to suck Mr Ball’s penis. The activity ceased when Mr Ball heard somebody coming. For his offending Mr Ball received a starting point of three and half years imprisonment.

13 Jackson v Crown Law Office [2014] NZHC 2425: Mr Jackson met the 13 year old victim at an ANZAC day service and gave her is phone number. They began communicating and over time the texts became increasingly intimate and involved exchanging intimate photographs. Mr Jackson travelled from Blenheim to Nelson and took part in sexual activity with the victim on at least five occasions. The sexual activity involved vaginal, oral and anal sex and the victim performing oral sex on Mr Jackson. The starting point adopted was four years’ imprisonment.

14 Police v Ngawhika DC Whakatane CRI-2009-087-000481, 6 May 2009.

current offending is of equivalent seriousness to that in Anand and Page but more serious than that in Ball. On the other hand, your counsel, Ms Allen, contends that your offending is comparable to that in Ball and Ngawhika but less serious than that in Anand, Page and Jackson. I agree with Ms Allen. Anand, Page and Jackson are each illustrative of offending of a more serious nature, where each case involved offending over a longer period of time and featured grooming to varying degrees, a factor that is not present in the current offending. Jackson and Page also involved penetration, again, a factor not present in the current offending. Rather, I view the most comparable case to be that of Ball where a starting point of three and a half years’ imprisonment was adopted. However, I do see the current offending as being slightly more serious than that in Ball as it involved premeditation and a greater degree of harm.

[26]              Having regard to R v H and the various comparable cases I adopt a starting point of three years nine months’ imprisonment. I then uplift this by 18 months to reflect the additional methamphetamine and receiving offending and the breach of release conditions, and a further six months to take account of your prior offending. This results in an end starting point of 69 months’ imprisonment.

Mitigating factors and guilty plea

[27]              Both counsel agree that there are no relevant mitigating factors. Accordingly, there are no deductions that result in this respect. However, counsel are agreed that you entered a guilty plea at the earliest possible stage and therefore are entitled to the full guilty plea deduction of 25 per cent. This results in an end sentence of four years and four months’ imprisonment.

MPI

[28]              Having arrived at an end sentence, the next step is to assess whether a mandatory period of imprisonment is warranted. Pursuant to s 86 of the Sentencing Act 2002, this Court may order that an offender serve a minimum period of imprisonment beyond the default period; that being one third of the finite sentence. Such an order may only be made where the Court is satisfied the default period would be insufficient to satisfy any of the following purposes: holding the offender

accountable for the harm done to the victim; denouncing the offending conduct; deterring the offender or others from committing similar offences; or protecting the community.

[29]                In regard to the finite sentence I have adopted, if no order is made under s 86 you will be eligible for parole after serving approximately one year and four months of your sentence. Having regard to the negative consequences of your offending on both the victim and his family, as well as the risk you pose to the community, I do not consider the default period sufficient. Mr Williams submits that an MPI of two thirds, the maximum available under s 86, is necessary to satisfy these purposes. I agree.

[30]              Accordingly, the end sentence I would arrive at for a finite sentence is four years and four months’ imprisonment with an MPI of two thirds, rendering you eligible for parole after approximately two years and 10 months.

Preventive detention

[31]              Having arrived at this end sentence, the question for the Court is whether the sentence is sufficient to protect the community from the ongoing risk of offending you pose, or, whether a sentence of preventive detention is necessary. Preventive detention is not a sentence of last resort. It is a protective sentence to be imposed if and when necessary.15 There is no doubt that a sentence of preventive detention is available where the offender is already subject to a sentence of life imprisonment.16 Where this is the case, whether preventive detention ought to be imposed is to be considered on a principled basis and cannot be “driven solely by the practical utility of the sentence”.17 In other words, I am to consider the possibility of preventive detention separately from the life sentence you remain subject to.

[32]              Under s 87(2) of the Sentencing Act, I may impose a sentence of preventive detention where, as in your case, an offender has been convicted of a qualifying sexual offence and was 18 years of age or over at the time of committing the offence. I must also be satisfied that the offender is likely to commit another qualifying offence if the person

15     R v C [2003] 1 NZLR 30 (CA) at [6].

16     R v Williams [2019] NZGC 2832; Mackrell v R (1998) 16 CRNZ 1 (CA).

17     T (CA43/2013) v R [2013] NZCA 497.

is released at the sentence expiry date. In making this assessment I must have regard to the following five factors:¹⁸

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

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

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

(d)The absence or failure of efforts by you to address the causes of your offending; and

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

[33]              I must also consider reports from at least two appropriate health assessors.19 Here,  I  have  received  reports   from   forensic   psychiatrists;   Dr   Jaques   and  Dr Karayiannis, as well as reports from clinical psychologists; Ms Anja Isaacson and Dr Sarah de Wattignar.  Today  I have also received a further updating report of     Ms Isaacson.

[34]              Ms Allen has submitted that I should prefer the reports of Ms Isaacson over those of the three other health assessors as her reports are said to give a broader and more personal insight, and she is said to have spent more time with you than the other health assessors. Although I see the time Ms Isaacson spent with you as relevant to the weight I ought to ascribe to the various health assessors’ reports, it is but one relevant factor among many. Further, the fact that other experts may have spent less time with you does not necessarily mean their advice is less helpful or relevant. There is nothing here to suggest that any expert who assessed you has cut corners. Also relevant is the fact that the reports of Drs de Wattignar, Jaques and Karayiannis are largely in agreement with one another and it is Ms Isaacson’s reports that appear to stand in contrast to the opinion of the majority. As a result, I have considered each of

18     Sentencing Act 2002, s 87(4).

19     Section 88(1)(b).

the heath assessors’ reports carefully and shall indicate throughout the opinions I have relied on.

Pattern of serious offending

[35]              The first of the five factors I must consider is whether you have exhibited a pattern of serious offending. Crown counsel, your own counsel and the majority of the health assessors (with the exception of Ms Isaacson) agree there is a pattern of serious sexual offending emerging from your conviction history.

[36]              In 1985 you were convicted of murder and sentenced to life imprisonment. This offending arose when another young man with whom you had been smoking cannabis and socialising with rejected your sexual advances. You became overwhelmed with a desire to kill him and engaged in a brutal and violent attack, stabbing the victim in the throat and through the temple. This offending although not explicitly relevant to establishing a pattern of offending does possess sexual overtures similar to those in your subsequent offending.

[37]              In 1994 you were released on parole. Whilst on parole, in 2009, you committed a sexual offence. You were convicted of indecent assault on a male between the ages of 12 and 16, and assault with a weapon. That offending involved a 14 year old male who had agreed to return to your address. Once at your address you supplied the victim with alcohol and watched pornographic movies. You then exposed your genitals to the victim who was lying next to you and began to rub the victim’s genitals through his clothing. You asked the victim if you could perform oral sex on him and he refused to allow this. When the victim tried to leave you hit him over the head with a wooden mallet. You were recalled to prison and then in 2016 were granted parole for a second time. Whilst on parole you committed the current offending for which you appear for sentence.

[38]              With regard to the 2009 offending and the current offending, it is evident that both sets of offending involved sexual conduct with a young male under the age of 16 in circumstances where you had supplied the victim with an illicit substance and where, in the 2009 offending, you inflicted violence on the victim once he refused to comply with and accept your sexual advances, just as you had previously done in the

offending carried out in 1985. Having regard to this and the health assessors’ reports I consider the first factor is made out.

Seriousness of the harm to the community caused by the offending

[39]              Counsel have also agreed that your offending has caused significant emotional and psychological harm to the victim as well as widespread harm to his family who continue to struggle with what has happened and with how best to help the victim. I consider this factor is also made out.

Information indicating a tendency to commit a serious qualifying offence in the future

[40]              The reports from both Dr Jacques and Dr Karayiannis identify that you possess substance abuse disorder, meaning that you are unable to control your drug use and continue to engage in drug use despite adverse consequences. This substance abuse is said to be closely associated with your offending. Dr Jacques says that you have not addressed any of the factors that have contributed to your offending and says that there is a high risk of you committing a similar qualifying offence against males aged 12- 16 years in the future. Similarly, Dr Karayiannis assesses that you pose a high- moderate risk of both violence and sexual offending in the future. He puts a figure of this risk, determining there is a 39 per cent chance of sexual recidivism within five years. Doctor de Wattignar concurs with this assessment, finding you to be a high risk of sexual recidivism.

[41]              Your counsel acknowledges that you present as a medium-high risk of offending in future but says that this risk is likely to reduce if you receive the treatment you need. She also contends, in reliance on the reports of Ms Isaacson, that your risk of reoffending will reduce in future on account of your age. Ms Isaacson reports that if released after the age  of 60 your  risk of offending  will halve.  Dr Jacques  and  Dr Karayiannis are hesitant to opine that your risk of offending will decline with age but Dr de Wattignar goes as far as stating that in your case there is no suggestion that your risk of offending will decline with age, given your recent offending at the age of

52. It is important to note that in this assessment I am considering your risk of committing a qualifying offence following the end of the finite sentence I have

determined appropriate, that being four years and four months’ imprisonment. This means I am to assess the risk that you would pose at age 57.   Thus, although        Ms Isaacson may be correct in assessing that your risk of offending will dramatically decrease after age 60, that is irrelevant to my assessment. Rather, each of the health assessors opine that up until the age of 60 you will continue to pose a medium-high risk of sexual offending.

[42]              On this basis I am satisfied that you pose a high risk of reoffending and that this risk is not adequately mitigated by the process of aging. In relation to that reoffending again, I emphasise it is a qualifying offence.

[43]              For completeness I note that on the face of it your offending has an appearance of decreasing in severity, and this was raised in the report of Ms Isaacson who suggested that this was indicative of a reduced risk of offending. However, your first serious offence involved a situation where the victim had rejected your sexual advances and you responded with extreme violence that resulted in a conviction for murder. Your second set of serious offending involved charges of assault with a weapon and doing an indecent assault on a young person, who had also rejected your sexual advances. Again the offending involved violence albeit to a lesser degree. The current offending however, did not involve any violence and when seen in light of your other offending may represent a decrease in severity. However, I have been unable to give any meaningful weight to this notion, as in your recent offending the absence of violence may simply be a result of the fact that here, unlike with previous offences, your sexual advances were not rejected by the victim. Ms Isaacson, in her assessment of the risk you posed failed to acknowledge the impact of the victim’s acquiescence on the severity of the offending and to me this oversight renders her assessment flawed. Accordingly, I have treated the absence of physical violence in the present offending as a neutral factor rather than an indication there has been a decrease in the severity of your offending.

[44]              I note that as part of the preparation for the current offending you had wired the door of the shed so that it could not be easily opened. This may indicate forethought on your part to stop others from entering the shed unexpectedly, or it could indicate an intention to thwart the victim’s escape had he chosen to leave the shed. I

am in no position to say which alternative is correct, maybe both are. Accordingly I have also treated the restriction on the shed door as a neutral factor relevant to the severity of the offending and to my assessment of the risk you pose of reoffending.

Efforts by the offender to address the cause of the offending

[45]              Mr Edgerton, you have not partaken in any substantive treatment to address your substance abuse or your sexual offending. At various times you have engaged in counselling, some of which you say has been helpful and some of which hasn’t. For the purposes of today’s sentencing the Department of Corrections attempted to contact you to engage in a pre-sentence report. You refused. That report indicated that you were unmotivated to change and that you have blamed your lack of treatment on Corrections.

[46]              Dr Jacques says that you have expressed a willingness to engage in treatment programmes but to date have not addressed the causes of your offending. He also reports that you blame this on Corrections. Similarly, Dr Karayiannis notes that you expressed interest in participating in the Te Piriti sexual offender’s programme but that you were told you did not fit the profile to be eligible.

[47]              Ms Allen submits that the overarching driver of your offending is your failure to address your sexuality and the sexual trauma you experienced as a young person, and that you ought to be given an opportunity to do so having been deprived of any such opportunity thus far.

[48]              It is unclear to me to what degree the responsibility for your failure to engage in treatment lies with you, and to what degree it lies with the Department of Corrections. Although you appear to be willing to engage in rehabilitation and express true disappointment with yourself, this is to be assessed in light of the fact that you are reported to lack empathy for the victims of your offending and to possess limited remorse. Doctor de Wattignar in particular questioned the sincerity in your ability to take responsibility for your offending and opined that you would be unlikely to make significant gains in treatment at this stage in your life given your complex needs. To all of this I add that today you prepared a letter for the family of the victim. In that letter you profusely express your emotional remorse and regret for what you have

done, and you say that you do not have the courage to stand before the family today because of the shame and embarrassment you feel. However, in my view, had you truly felt remorse and regret for the harm your actions have caused to C, you would have come forward today; you would have been prepared to face his family. The type of expression of regret that you have provided to me when viewed against your conduct in deciding not to be present in this Courtroom, strikes me as similar to the other behaviours that have caused persons such as Dr de Wattignar to question the sincerity of your expressed wishes to take responsibility for your offending. I have no confidence that you are at a stage where you are willing to properly and truly take responsibility for your offending.

[49]              Having regard to the information before me it is difficult to make any definitive conclusions regarding your efforts and willingness to engage in treatment. Although you may have been prevented from participating in Te Piriti, the Department’s sexual offending unit, your general attitude towards your offending including your ongoing refusal to acknowledge your sexual proclivities and your tendency to minimise, externalise and deny aspects of your previous offending, as well as your refusal to acknowledge the need to address your substance abuse, violence and emotional regulation in response to rejection, all indicate that at least in part you are responsible for the failure to address the causes of your offending. I am also sceptical of your recent desire to engage in treatment in light of the health assessors’ warnings and your history. Accordingly, I am of the mind that you have had ample opportunity to at least address some of the causative factors of your offending but have elected not to do so. A choice that no doubt played a significant role in your current offending.

Is a lengthy determinate sentence sufficient?

[50]              The final factor I am to consider is whether a lengthy determinate sentence would adequately protect the community. Here, Dr Jacques says that although you report wanting to engage in treatment you have a history of providing false information to parole officers and deny your sexual deviancy and drug problems. As a result, he says that a determinate sentence may not be sufficient to reduce your risk of offending as it will not require you to engage in rehabilitation, like a sentence of preventive detention would. Dr Karayiannis similarly notes that an indeterminate sentence may

be valuable to ensure that you engage in the necessary treatment. They both, emphasise the importance of further treatment to address the causes of your offending, and Dr de Wattignar opines that you will require lifelong support.

[51]              In contrast to the other health assessors, Ms Isaacson is of the view that an indeterminate sentence will in fact make it more difficult for you to obtain specialised treatment, and as a result a finite sentence is appropriate. She also opines that “a lengthy prison sentence may provide adequate protection to the community, particularly if relevant treatment … is provided to Mr Edgerton”. This opinion is based primarily on the position that your risk of reoffending will have dramatically decreased by the time you are 60. However, with all due respect, Ms Isaacson’s opinion is flawed as it is built on the false premise that this Court can impose a lengthy finite sentence of imprisonment on you. Although a lengthy finite sentence of imprisonment may provide the necessary protection for the community, it is not an option available to this Court given the nature of your offending. The appropriate sentences available to this Court, as put forth by counsel, ranged from three years and nine months to four years and six months imprisonment. Even if the maximum proposed sentence were imposed and served in full, you would only be aged 57 at the time you were eligible for release, or in your case, parole. A lengthy finite sentence that places you in the low risk category – that is 60 years or more – is outside the realm of possibility for this Court.

[52]              In these circumstances I am persuaded by the opinions of Drs Jacques, Karayiannis and de Wattignar, that a sentence of preventive detention is necessary. This is in fact one of the types of cases that preventive detention was intended to address, namely, a case where the appropriate finite sentence is incapable of adequately protecting the public or addressing the offender’s rehabilitative needs. If indeed your risk of sexual offending is to decrease with appropriate treatment and with age, the Parole Board will be best placed to make that assessment at the appropriate time and grant you parole.

[53]              Ms Allen has submitted that the possibility of an extended supervision order supports the imposition of a finite sentence and should tip the scales against a sentence of preventive detention. Although that is true, whether or not the possibility of an

extended supervision order (ESO) will result in a finite sentence will turn on the facts of the individual case, and in this case I am not satisfied that the possibility of an ESO is sufficient to protect the community. It has been identified that you pose a high risk of reoffending in terms of committing a qualifying offence and that this risk is unlikely to be sufficiently mitigated with age at the time you would be eligible for release from that sentence. As a result, the risk you pose to the community both now and into the foreseeable future is substantial. Also, I am not satisfied that an ESO will be capable of protecting the community at the time you become eligible for release, on account of your previous history on parole. Following your conviction for murder you were released on parole and reoffended. You returned to prison, were released from parole and then again reoffended. The same cycle then repeated and gave rise to the current offending. Not only did you fail to comply by reoffending, you actively manipulated and deceived your Parole Officer so that you could continue to engage in substance abuse, a behaviour that has been a causative link to your offending. In short, I cannot be confident that you will comply with the strict requirements of an ESO, and the consequences of your failure to comply could be severe for the community, as it could be the commission of another qualifying offence. Thus, in your case the possibility of an ESO cannot tip the scales in favour of a finite sentence.

[54]              Accordingly, I am satisfied that a sentence of preventive detention is necessary. Although the absence of physical violence towards the victim sets this offending apart from the earlier offending, I have already explained why I see this as a neutral factor in your case. Even if I took the view the offending here is less severe due to greater restraint on your part than in the past, this factor would be substantially outweighed by the high risk of re-offending you pose, your lack of engagement in treatment and the potential positive impact an indeterminate sentence requiring rehabilitation will have on you. I arrive at this decision after careful consideration of all the material before me and with a view that I must adopt the least restrictive sentence that adequately protects the public and promotes your rehabilitation.

[55]              As I have adopted a sentence of preventive detention, s 89 of the Sentencing Act 2002 requires me to impose an MPI of not less than five years. This period must be the longer of either the minimum period required to reflect the gravity of your offending, or the minimum period required for the purposes of the safety of the

community. In your case the Crown submits an MPI of five years would be sufficient. I am also of the view that an MPI of five years is sufficient to address the purposes of s 89. At that point the Parole Board can address whether you should be released or not based on an updated assessment of the risk you pose in relation to qualifying offences.

Result

[56]              Mr Edgerton, on the charge of sexual conduct with a young person between the ages of 12 and 16 you are sentenced to preventive detention with an MPI of five years. This sentence is to be served concurrently with the sentence of life imprisonment you have previously received for murder.

[57]On the charge of receiving you are sentenced to 18 months’ imprisonment.

[58]              On the charge of supply of methamphetamine, you are sentenced to 18 months’ imprisonment.

[59]              On the charge of breach of release conditions you are sentenced to three months’ imprisonment.

[60]              Each of these finite sentences are to be served concurrently with the sentence of preventive detention.

[61]              Because you have committed a qualifying offence under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, you are classified as a registrable offender. Accordingly, your name will be entered on the Child Sex Offender Register as soon as is practicable.

Duffy J