R v Exley
[2024] NZHC 48
•1 February 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-035-121
[2024] NZHC 48
THE KING v
DAMON JOHN EXLEY
Counsel: S A H Bishop and J G Avia for Crown
L C Ord and S S Pohiva for Defendant for the filing of written submissions and the defendant in person at hearing
Sentencing:
1 February 2024
SENTENCING NOTES OF RADICH J
Preface
[1] A separate oral decision, at [2024] NZHC 61, describes the circumstances in which the sentencing of the defendant proceeded without his physical presence in the courtroom and on a self-represented basis.
Introduction
[2] Mr Exley, you appear for sentence today on charges of abduction for the purposes of sexual connection,1 assault with a weapon,2 and sexual violation by rape,3 having been found guilty of these charges by a jury. You appear also on charges of
1 Crimes Act 1961, s 208(1)(b) (maximum penalty of 14 years’ imprisonment).
2 Section 202C(1)(b) (maximum penalty of five years’ imprisonment).
3 Sections 128(1)(a) and 128B (maximum penalty of 20 years’ imprisonment).
R v EXLEY [2024] NZHC 48 [1 FEBRUARY 2024]
unlawfully taking a motor vehicle,4 burglary,5 and escaping lawful custody,6 to which you pleaded guilty before trial.
[3] The Crown submits that preventive detention is the appropriate sentence. If an order of that sort was made, then you would be subject to a minimum period of imprisonment, after which you would remain imprisoned until the New Zealand Parole Board considers that you no longer pose a significant and ongoing risk to the community. The purpose of preventive detention is to protect the community from offenders who pose such a risk, rather than to punish.7
[4] Your counsel have submitted, when they were instructed by you and in the written submissions they filed, that a lengthy determinate or “fixed” sentence is preferable.
[5] You committed the offences we are concerned with today during and following your escape from Rimutaka Prison where you were already serving a sentence of preventive detention for convictions on offences which included abduction for the purpose of sexual connection and assault with intent to commit sexual violation by rape. Therefore, irrespective of the sentence that I impose today, you will remain subject to that existing preventive detention sentence, the minimum period of imprisonment for which expired in 2014. However, an additional preventive detention sentence may be imposed if the relevant statutory criteria are met. As the Court of Appeal has said, each offence requires an appropriate response even if it may have no practical effect where, for example, it is of a lesser or equal duration to another sentence.8
[6] There can be no doubt that your current offending must result in a sentence of imprisonment. The primary issue for the Court is whether a finite sentence of imprisonment or a successive sentence of preventive detention should be imposed.9
4 Section 226(1)(a) (maximum penalty of seven years’ imprisonment).
5 Section 231(a) (maximum penalty of 10 years’ imprisonment).
6 Section 120(1)(a) (maximum penalty of five years’ imprisonment).
7 Sentencing Act 2002, s 87(1).
8 T (CA43/2013) v R [2013] NZCA 497 at [26], citing Mackrell v R (1998) 16 CRNZ 1 (CA) at [8].
9 At [23].
[7]To determine the appropriate sentence I will address three matters.
(a)First, I will describe your offending.
(b)Secondly, I will consider what your sentence should be if I do not sentence you to preventive detention. That involves two steps:
(i)first, I will calculate a starting point, incorporating any adjustment for any aggravating and mitigating factors of your offending; and
(ii)secondly, I will incorporate aggravating and mitigating factors that are personal to you.10
(c)Finally, I will assess whether it is appropriate to sentence you to preventive detention.
The offending
[8] There are two sets of offending. Each of them involves three separate offences which form part of a series of events. The first set of offending comprises the charges of unlawfully taking a motor vehicle, escaping lawful custody and burglary.
[9] In mid-2006, you were convicted of several offences and sentenced to preventive detention. On 18 February 2022, you escaped from Rimutaka Prison. At the time, you were working with a group of other inmates at a nursery on the prison grounds. The unit had its own perimeter fence and gate, separate from the main perimeter fence and gate system surrounding the prison complex. In the days leading to your escape, you fashioned a replica walkie-talkie radio in the prison workshop. It looked like walkie-talkies used by Corrections staff. You hid it within your work site at the nursery.
10 Moses v R [2020] NZCA 296 at [46].
[10] On the day of your escape, you went to work and retrieved the radio together with a pair of Corrections-issued overalls as worn by Corrections staff members that you had acquired and a pair of wire cutters, both of which were the property of Corrections. You put the overalls on and made your way to a fence separating the work site from a construction site within the prison, where work was being carried out by contractors. You used the wire cutters to make a hole in the fence and you climbed through it. Once inside the work site, you posed as a Corrections employee and told the contractors that a prisoner had escaped and that they should wait inside their site office until the prisoner had been located. They complied.
[11] Then you found a van, belonging to the contractors, that was parked nearby with the ignition key inside. You took the van, driving it past a set of security gates before leaving the prison grounds.
[12] You drove north until you reached a rest stop near Waikanae. You stopped there and hid the van amongst tall grass and scrub. You removed one of the licence plates and took several items from inside the van, including a backpack.
[13] Then, you travelled by foot towards the Ōtaki township, coming to an unused building owned by Higgins Contractors. You entered the building through a broken window and rummaged around the room, picking up various items including a kitchen knife and a “high-vis” jacket. After sleeping inside the building, you left, taking these items with you.
[14] The second set of offending occurred two days later, on 20 February 2022. It involves the offences of abduction for the purposes of sexual connection, assault with a weapon, and sexual violation by rape.
[15] In the early hours of that morning, you were walking along the State highway, near the Ōtaki township. It was raining and you were trying to hitch a ride. The victim pulled over and offered you a ride. You accepted and got into the passenger seat of her car. You told her that you had been sent to Wellington to make a delivery but had been left behind and had no other way of getting home to Palmerston North. The
victim agreed to drive you to Palmerston North, as she was travelling back to her home in Feilding.
[16] As the victim pulled over, around Longburn, to drop you off, you produced a large kitchen knife. You pulled it out slowly from a cardboard scabbard from within your backpack. You told her that you were the escaped prisoner from Rimutaka Prison. You told her that she was to keep driving.
[17] A little further north at Awahuri, you pulled out the knife for a second time. You told the victim that you were going to have sex with her and that she was going to drive you to Hunterville. The victim told you that she did not know if she was able to have sex, saying that her husband had passed away seven years earlier and that she suffered from arthritis in her leg. You pulled out the knife for a third time, directing the victim to pull off into a cemetery area in Sanson, a little further north. You said to the victim at that time “I have gutted things before. No harm in doing it again”. The victim complied. She feared greatly for her safety.
[18] When she parked the car, beyond a flax bush in the cemetery area, you told her to get into the back, which was set up already with a mattress for sleeping. You followed her and undressed her, and yourself, completely. While it is said by your counsel in written submissions that this act was not accompanied by any physical violence, you did at that point spread the victim’s legs, push her on to her back and lie on top of her. You began kissing her face, neck and breasts. You inserted your penis into her vagina and penetrated her for five to seven minutes. You did not use a condom. During this time, the victim said and did nothing, fearing that you would follow through on your threat if she tried to stop you.
[19] The victim did not at any stage consent by reason of her silence, in the face of your threats of violence.
[20] Having sexually violated the victim, you told her to take you to Masterton. Ultimately, in Masterton, she was able to alert a member of the public, at a laundromat (where she was drying your wet clothes) to her situation and the police were called.
Purposes and principles of sentencing
[21] In sentencing you, the Court is required to have regard to the purposes and principles of sentencing in the Sentencing Act 2002. The primary purpose of the sentence in this case must be to denounce your conduct and to hold you accountable for the harm that you have caused to the victim. We have heard from the victim, through her victim impact statement, on how profoundly your conduct has affected her. Equally, a relevant sentencing purpose from the Act is to protect the community from you, a matter to which I return a little later.
[22] The sentence should promote in you a sense of responsibility for the harm that you have caused. And, under the Act, the sentence should deter other persons from committing the same or similar offences.
[23] The relevant principles of sentencing that I am to take into account include the gravity of the offending and the seriousness of the offence. I am required to consider the prospect of your ultimate rehabilitation and must take into account comparative cases where relevant.
Finite sentence
[24] I look now at what a finite sentence for this offending might be. It is the sentence that I would impose if I did not go on to consider a sentence to be relevant for preventive detention. I do so by considering separately each of the two sets of offending that I have described. I will look, first, at the more serious charges which relate to your sexual offending, that is to say, the charges of abduction, assault and sexual violation. I will then turn to the second set of charges relating to your escape, that is to say, the charges of escape from custody, unlawful taking of a vehicle and burglary.
First group – sexual offending
[25] In its decision in R v AM, the Court of Appeal provided guidance on the application of the sentencing principles in the Sentencing Act to sexual violation by
rape.11 It provided a non-exhaustive set of factors that are relevant to the analysis of a defendant’s culpability for offending in this area12 and it prescribed four “bands” to describe the spectrum of offending in the area, based upon seriousness, and the terms of imprisonment that are appropriate in each band.13
[26] Before considering where within those bands of behaviour the offending in this case should sit, for the purposes of fixing a starting point, I describe the aggravating features of your sexual offending. There are a number of them:
(a)First, you threatened the victim with serious violence on three occasions so as to have her comply with your demands. While your counsel has said that, apart from the threat, the act itself was not accompanied by physical violence, the threat was extreme and would have induced terror in anyone. To show the victim a large knife and to refer to “gutting” her is a particularly serious threat. I cannot see any mitigation being warranted through you being, as counsel put it in written submissions, “solicitous of the complainant” when engaged in sexual activity with her, by ensuring that you did not hurt her sore leg and by assisting her in retrieving and putting on her clothing afterwards.
(b)Secondly, you used the threat of violence to detain the victim for a number of hours – throughout the car ride to Masterton.
(c)Thirdly, I see your sexual offending as being moderately predetermined. While your counsel has submitted that there was no element of predetermination and that your decision to have sex with the victim came about after you were in the car with her, there was, nonetheless, a reasonable gap between the point at which you first told the victim that you would have sex with, near Longburn, and when, at Marton, you did sexually violate her.
11 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
12 At [34]–[64].
13 At [90]–[109].
(d)Fourthly, you have affected profoundly the victim’s life by causing the significant harm that is inevitable in this kind of offending and the particular harm that we have heard from the victim when she gave her victim impact statement. As you have heard, the victim has, because of your actions, been left with a post-traumatic stress disorder. She suffers panic attacks, has difficulty sleeping, has needed treatment for depression and suicidal ideation. Her life – and those of her children – has been changed significantly because of what you have done. She can no longer trust strangers in the way that she did when, with intended kindness, she stopped to pick you up while you were walking along the side of the road, in the rain.
[27]The Crown submits that your offending falls at the upper end of band 2 in the
R v AM case and that it should attract a starting point of 12 years’ imprisonment.
[28] Your counsel submitted in the written submissions filed that a starting point of eight to 10 years would be appropriate – being at the top end of band 1 and in the lower end of band 2.
[29] I assess your offending as being in the middle of band 2 on the basis of the aggravating factors I have mentioned. Band 2 relates to offending that is, relative to the broad spectrum of sexual offending by rape, moderate. It is appropriate for cases that involve two or three factors that increase culpability to a moderate degree. The band attracts a starting point of between seven and 13 years’ imprisonment.14
[30] While I need to exercise caution in using comparator cases where a tariff judgment like that in R v AM exists,15 both counsel have referred to two cases in particular to assist in placing your conduct at the appropriate point within the bands.
The cases are Henry v R and R v Bridgeman.16
[31] In my view, there are fewer aggravating features here than were present in those cases. Those cases both involved multiple counts of sexual violation. Your case
14 At [98].
15 R v L [2021] NZCA 297.
16 Henry v R [2018] NZCA 263; R v Bridgeman [2020] NZDC 10323.
has more in common, as I see it, with a subsequent decision, also called R v Bridgeman, relating to separate offending and to which the Crown has referred.17 That case, involving sexual violation by rape, attracted a starting point of nine years. However, it did not involve the abduction that needs to be factored in here.
[32] Your offending has characteristics that are similar in some ways to those in R v Takiari18 – a case referred to in R v AM – and in the more recent case of R v Rapana.19 While some of the aggravating features in those cases are not present here, your detention of the victim of this case (a feature that was not present in those cases) is such that the seriousness of those cases is similar to the seriousness of your case.
[33] In my view, a starting point of 10 years’ imprisonment for your sexual offending is appropriate.
Second group – escape from custody and subsequent dishonesty offending
[34] The offences that result from your escape are similar to those in a case to which the Crown has referred – Broughton v Police.20 In that case, the appellant was convicted of charges that included escape from custody, burglary and the unlawful taking of a vehicle. Burglary was taken as the lead offence. On appeal to this Court, 20 months’ imprisonment for the burglary was adopted with a nine month uplift for the taking of a vehicle and a nine month uplift for the remaining offending. By comparison, your escape from custody was premeditated to a much greater extent but the burglary here was less serious.
[35] Accordingly, I see your escape from custody as being the lead offence here and I observe parallels with Leaf v Police which involved, in the third of three sets of offending in that case, offences of escape from custody, unlawful taking of a car and theft of petrol, together with other more minor, related charges.21 The escape from custody – which was premeditated there as it was here – was treated as the lead charge
17 R v Bridgeman [2022] NZHC 450.
18 R v Takiari [2007] NZCA 273.
19 R v Rapana [2021] NZHC 3407.
20 Broughton v Police [2022] NZHC 3376.
21 Leaf v Police [2018] NZHC 3209.
and, on appeal, a starting point of two years and 11 months for these offences was upheld. However, in doing so, the High Court reduced the starting point for the escape from two years to one year and increased the uplift for the related offending proportionately.
[36] As I see it, the appropriate course here is to apply a starting point of 18 months for your escape from custody and for your taking of a motor vehicle in the course of that escape and to then uplift it by four months for your burglary. A starting point of 22 months – or one year and 10 months – results.
Overall starting point
[37] I have adopted a 10-year starting point for your sexual offending and a starting point of one year and 10 months for the offending relating to your escape. Together, that produces a starting point of 11 years and 10 months’ imprisonment. In order to give effect to the totality principle – that cumulative sentences must not be disproportionate to the gravity of the overall offending – I will reduce the overall starting point to 11 years’ imprisonment.
Personal aggravating and mitigating factors
Previous relevant offending
[38] The fact you offended while subject to an ongoing sentence, and the similarity of your previous convictions, both warrant a significant uplift from the starting point. You have in the order of 250 prior convictions, which includes seven prior convictions for escaping custody or a penal institution, including an escape where you seriously injured a prison officer and then unlawfully took a car as part of your escape. And you have a significant number of convictions both for burglary and for the unlawful taking of vehicles.
[39] Your prior convictions include two incidents of similar sexual offending, where you used a weapon or an imitation weapon to attempt to rape women you had gotten on their own. The first incident occurred in 2000, when you were convicted for kidnapping and indecent assault with intent to commit rape for inducing a female real estate agent to show you several properties, having feigned an intention to purchase
one. While she was driving you, you produced an imitation firearm and, threatening her with it, told her she would need to drive you out of town. When you suggested she drive down a side road, she refused and pulled over where she was. Then, you told her you would have your way with her, before attempting to grab her arms and threatening to shoot her. She was able to get away and ran across the road.
[40] The second incident occurred in 2005 when, after escaping from police while on parole, you again approached a local real estate firm and induced a female real estate agent to show you a number of properties. While in one of the properties with her, you produced a knife and used it to threaten her and to endeavour to have her remove her clothes. You intended to rob and rape her. She managed to escape through a window. The similarities between your previous sexual offending and the sexual offending you are being sentenced for today are striking and demonstrate, as Gendall J put it when sentencing you in 2006, a modus operandi.22
[41] The Crown has submitted that a 12 month uplift is appropriate here and your counsel, in submissions, has accepted that an uplift of no more than 12 months should apply. I see a 12 month uplift as being appropriate in all of the circumstances.
[42] In considering the uplift, I have been careful to avoid double counting the fact, first, that you offended while subject to a sentence and, secondly, the charge of escaping from prison, which has been assessed separately. Moreover, the uplift does not seek to punish you again for the offences for which you have already served time. It applies in order to reflect your clear disregard for the law and for authority and because it is needed to protect the public from you and given your pattern of offending in the same way.
Personal circumstances
[43] I do observe that you have had a troubled and difficulty upbringing. The pre- sentence report prepared by the Department of Corrections explains, for example, that you left school at the age of 13 because of behavioural problems, that you associated
22 R v Exley HC Wellington CRI-2006-091-2218 [20 June 2006] at [10].
with a prominent gang from that age because of the support that was offered, that you suffered abuse at home and that you have spent some years in State care.
[44] However, a discount for factors of this sort is not warranted. It is not sought in submissions and there is nothing to suggest any causal connection between your background and your offending.
Guilty plea
[45] I will, however, grant a nominal discount of three per cent for your guilty plea to the charges relating to your escape. That amounts to 3.96 months, which I will round up to four months.
[46] The discount is nominal because you did not plead guilty to the considerably more serious set of charges relating to your sexual offending, causing the victim to relive the traumatic events in court and because there was clear evidence against you in relation to the escape charges.
Remorse
[47] There is no evidence to show that you have remorse for your offending. I do have a copy of a letter that was sent by you to the nursery staff at Rimutaka Prison in which you have apologised for undermining the trust that they placed in you. However, there is nothing to show any form of remorse for the victim of your sexual offending.
Net position on a finite sentence
[48] Taking a starting point of 11 years’ imprisonment together with a one year uplift for your previous offending and a four month discount for your guilty plea, your finite sentence will be 11 years and eight months’ imprisonment.
Minimum period of imprisonment
[49] The Crown has submitted that, given the repeated and serious nature of your sexual offending against lone women who are strangers to you, it would be appropriate
to make an order that you be required to serve two-thirds of your sentence before being eligible for parole.
[50] Your counsel submitted in written submissions that, if a minimum period of imprisonment is to be imposed, then it should be for no more than one-half of your sentence.
[51] The Court may impose a minimum period of imprisonment under the Sentencing Act if it is satisfied that the one-third statutory minimum would be insufficient to hold an offender accountable for the harm done to the victim and the community, to denounce the conduct in which the offender was involved, to deter the offender and others from committing the same or similar offences and for protecting the community from the offender.
[52] The circumstances relating to your present and prior sexual offending are such that a minimum period of imprisonment is appropriate and I agree with the Crown that, in order to achieve the purposes that I have just described, you should be required to serve two-thirds of your sentence before being eligible for parole.
Preventive detention
[53] I am now going to consider whether you should be subject to a sentence of preventive detention. In doing so, three requirements must be met. You must have been convicted of a qualifying sexual or violent offence, have been at least 18 years old at the time of offending, and the Court must be satisfied you are likely to commit another qualifying sexual or violent offence if you are released at the sentence expiry date of any sentence, other than preventive detention, that the Court is able to impose.23
[54] Two of the offences you are convicted of — abduction for the purposes of sexual connection and sexual violation by rape — are qualifying offences.24 You were over 18 years old at the time of offending for each of them. The real question then is whether you are likely to commit another qualifying sexual or violent offence if you
23 Sentencing Act, s 87(2).
24 Sentencing Act, s 87(5).
are released at the expiry date of any sentence, other than preventive detention, that I can impose.
[55] I turn now to address each of the matters that the Court must, under the Sentencing Act, take into account when considering whether to impose a sentence of preventive detention. In doing so, I draw from the reports provided by the two health assessors: Dr Kyros Karayiannis, a consultant psychiatrist, and Amanda Richards, a registered clinical psychologist.
[56] You chose not to engage in any way with the report writers. You did not give any reasons to them for having made that choice. However, both felt that they had enough written information available to them – including previous psychological assessments – to enable them to prepare their reports. Equally, as your counsel said in submissions, you did not engage with them in discussing the reports or the ways in which you may be prepared to manage your future time in prison to optimise your chances of release. Therefore, the written submissions that could be made on those points were limited.
Any pattern of serious offending disclosed by the offender’s history
[57] The first matter I must consider is whether your history discloses a pattern of serious offending. You have committed three strikingly similar sets of offending in which you have, when alone with a woman, threatened her with violence, using a weapon and in which you have sought to force the woman to engage in sexual activity with you.
[58] Dr Karayiannis observed that the pattern of your general offending has been virtually continuous apart from times when you have been in custody and that you have a history of breaching probation. Ms Richards, in her report, observed that your “offending behaviour has not been deterred by community-based sanctions, lengthy periods of imprisonment or individual and intensive group-based offence-specific rehabilitative interventions”. She said that you have spent most of your adult life in prison and have, during your limited times in the community, lived a “nomadic, parasitic and substance-fuelled lifestyle, marked by non-compliance with probation
and police, and a rapid rate of recidivism”. She found that your dishonesty behaviours appear to be the only means you have of funding a lifestyle within the community.
[59] The pattern of offending that Dr Karayiannis has referred to has resulted in over 250 convictions (including your current convictions) since 1983. While many are not serious offences, they include, for example, convictions for offences of aggravated robbery and aggravated wounding in 1992 and led to the serious offending since 2000, which I have described. And they include seven previous convictions for escaping from custody.
[60] In my view, there is no question but that your offending history discloses a pattern of serious offending.
The seriousness of the harm to the community caused by the offending
[61] The second matter I must consider is the seriousness of the harm to the community caused by the offending. Quite clearly, your offending over time has caused serious harm throughout the community, due both to the inherently serious nature of your sexual offending and to the use of weapons to threaten your victims. The victim impact statement given in Court today speaks clearly of the impact on the victim of your most recent offending. The sentencing decisions for your prior serious offending are equally poignant.
[62] Your propensity to threaten and use violence increases significantly the risk that even more serious harm could occur should you offend in the future. In sentencing you to preventive detention in 2006, Gendall J was concerned to ensure that there should be “no opportunity for you endangering women in similar ways in the future”.25
[63]Certainly, the harm you have caused to the community is serious.
Information indicating a tendency to commit serious offences in the future
[64] The third matter I must consider is any information indicating a tendency to commit serious offences in the future. Dr Karayiannis and Ms Richards have both
25 R v Exley HC Wellington CRI-2006-091-2218, 20 June 2016 at [10].
used several risk assessment tests to assist in predicting your risk of reoffending. Dr Karayiannis used tests called STATIC-99R (which assesses risk factors known to be associated with sexual recidivism in adult males), SVR-20 (which provides guidelines for sexual offender risk assessment), SAPROF second edition (which identifies protective factors relating to future violence or sexual recidivism) and ROC- ROI (an actuarial risk measure to assist in the prediction of an offender’s risk of imprisonment following reconviction).
[65] Based upon the outcomes of these risk assessment tests and his own clinical evaluation, he found your future risk of sexual reoffending to be well above average. He found the potential severity of your reoffending as being high and your overall dangerousness as being high. He found your sexual offending to be driven by a combination of personality factors, maladaptive coping strategies, your use of intoxicants and your poor insight into your own behaviour.
[66] Ms Richards also applied the ROC-ROI testing instrument. In addition, she used instruments called the Automated Sexual Recidivism Scale – Revised (ASRS-R), the Violence Risk Scale Sexual Offender Version (VRS-SO), the Violence Risk Scale (VRS) and the Psychopathic Check List – Short Version (PCL-SV). Having done so, and on the basis of her clinical evaluation, she considered that you presented a well above average risk of sexually or violently reoffending. She found that you are generally “prone to deceive, manipulate, violate rules and use threats, aggression and violence to get [your] needs met”. She said:
… Mr Exley’s sexual offending is an extension of his criminal behaviour in general, in that it is representative of his willingness to exploit others, to take what he believes he is entitled to, with a total disregard for the experiences of others. It is unclear what triggered Mr Exley’s sexual offending, however the recurrence of sexually assaultive behaviour … has a deviant foundation, and likely involves aspects of power, control and possible revenge. Overall, such behaviour is … indicative of enduring risk of harmful behaviour towards others.
[67] She said that a future pathway towards lowering your risk of reoffending is likely to be gradual, over the long term.
[68] Dr Karayiannis said that his prediction of reoffending would be at its most accurate in relation to time periods approximate to the date of assessment and that further into the future the prediction is applied the less accurate it will be. He highlighted that research indicates that the likelihood of sexual offending against adults starts diminishing after age 60.
[69] Your counsel emphasised, in written submission, these points made by Dr Karayiannis and have observed that there have been periods of time where you have not been engaged in this type of offending and that you have been able to control your behaviour in prison for significant periods of time. And they have referred to Ms Richards, in addition to the conclusions she reached, having identified a future pathway towards reducing risk.
[70] I acknowledge these points but they do not undermine the firmly expressed conclusions that the report writers have reached.
[71] Quite clearly, the Court has before it information indicating a tendency to commit serious offences in the future.
The absence of, or failure of, efforts by the offender to address the cause or causes of the offending
[72] The fourth matter I must consider is whether there is an absence or failure of efforts by you to address the causes of your offending. Dr Karayiannis and Ms Richards have both discussed your experience with rehabilitative programmes. For your alcohol and drug use, you have attended several programmes, completing one in 2014. Despite that, as Ms Richards has observed, you have since returned positive drug tests while in prison and have had other incidents involving substance use or possession. For both your violent and sexual offending, you have attended intensive group-based treatment but have not always been able to complete the programmes.
[73] Between 2016 and 2018, you undertook 12 individual psychological sessions. In 2018, you completed a programme for violent offenders. Yet, despite completing that programme, upon your escape from prison you armed yourself with a weapon and
used it to threaten someone. You have not yet completed offence-specific treatment for your sexual offending. You have twice begun a programme for adult sexual offenders, in 2014 and 2018, but had to be removed on both occasions for your safety.
[74] As Ms Richards put it, you have not meaningfully changed your behaviour despite targeted interventions.
[75] It is apparent to me that you have failed to make adequate efforts to address the cause of your ongoing offending.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[76] Finally, I must consider the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society. In addition, while not referred to in s 87(4) expressly, the Court should consider the availability of an extended supervision order and whether it would provide adequate protection for the public.26
[77] An extended supervision order would see you, after your release from prison, remaining supervised within the community.27 Under an order of that type, you could be placed on effective home detention and made subject to any of the special conditions in s 15 of the Parole Act 2022 for the remainder of the term of the order and be for up to 10 years. Intensive monitoring can be required.
[78] I do not consider that either or both of a longer finite sentence than the sentence that I have assessed or an extended supervision order would be enough to protect the community from you. You have breached probation and you have escaped from custody on multiple occasions. As Dr Karayiannis has observed, you just do not have the protective factors that would otherwise work to counter your risk of reoffending.
26 R v Parahi [2005] 2 NZLR 356 (CA) at [87]; R v Mist [2005] 2 NZLR 791 (CA) at [100]–[101]; and T (CA502/2018) v R [2022] NZCA 83 at [30].
27 Parole Act, s 107I.
Conclusion on preventive detention
[79] Despite the findings I have made, I must go on to consider the Court’s residual discretion in deciding whether preventive detention is an appropriate sentence in all of the circumstances. In doing so, I recognise the extreme nature of an order for preventive detention, the constraints it places on civil rights28 and the exceptional circumstances that need to be present before it can properly be made.
[80] However, I am of the view that the criteria in s 87 are clearly met. I am satisfied that preventive detention is the only appropriate measure to ensure the community’s protection and, accordingly, the limitation on your right to be free from arbitrary detention under the International Convention on Civil and Political Rights that an order for preventive detention imposes is, in this instance, justified, necessary and required by the statutory framework that provides for preventive detention to be imposed.
[81] Accordingly, I sentence you to preventive detention. Your minimum period of imprisonment is nine years. That is a little over two-thirds of the finite sentence I would have proposed had I not reached the view that preventive detention is appropriate. It is a year more than the minimum period imposed for your previous sexual offending in the sentence of preventive detention you were serving previously. An uplift is in my view appropriate here from that minimum period in order to denounce your conduct and in order to better protect the community.
Sentence
[82] Mr Exley, on the charges of abduction for the purposes of sexual connection and sexual violation by rape, you are sentenced to preventive detention.
28 The United Nations Human Rights Committee has found that preventive detention as imposed in New Zealand can breach the protection against arbitrary detention under the International Covenant on Civil and Political Rights 999 UNTS 171 (Open for signature 16 December 1966, entered into force 23 March 1967), because the conditions imposed for the minimum period of imprisonment and the period thereafter are not sufficiently distinct and on the basis that the preventive period has not, predominantly, been aimed at rehabilitation and reintegration into society; see Miller v New Zealand [2017] 11 HRNZ 400 (UNHRC).
[83] On the charge of assault with a weapon, you are sentenced to six months’ imprisonment. On the charge of unlawfully taking a motor vehicle, you are sentenced to eight months’ imprisonment. On the charge of burglary, you are sentenced to three months’ imprisonment. On the charge of escaping lawful custody, you are sentenced to one year imprisonment. All sentences are to be served concurrently, which means that your preventive detention sentence with the minimum period that I have imposed is the operative sentence in practical terms.
Radich J
Solicitors:
Crown Solicitor, Wellington for Crown Ord Legal, Wellington for Defendant
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