R v G
[2021] NZHC 3527
•17 December 2021
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF DEFENDANT
PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL
PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-096-2253
[2021] NZHC 3527
THE QUEEN v
G
Sentencing Hearing: 15 December 2021 Counsel:
S Bishop and A Prestidge for the Crown P V Paino for Mr G
Sentencing Notes:
17 December 2021
SENTENCING NOTES OF GWYN J
R v G [2021] NZHC 3527 [17 December 2021]
TABLE OF CONTENTS
Introduction [1]
The offending [4]
GG [6]
GT [9]
KF [10]
DG [11]
PD [15]
SK [19]
MM [28]
Victim impact statements [30]
Personal circumstances [31]
Purposes and principles of sentencing [38]
Sentencing options [40]
Determinate sentences [41]
Starting point [42]
Relevant aggravating factors [46]
Discussion [58]
Personal aggravating and mitigating factors [62]
Guilty plea [63]
Personal mitigating factors [65]
Youth [66]
Prior offending [69]
Conclusion in relation to determinate sentence [74] Minimum period of imprisonment (MPI) [75] Preventive detention [81]
Is there a pattern of serious offending? [102]
What is the seriousness of the harm? [103] Do you have a tendency to commit serious offences in the future? [104] Is there an absence of efforts to rehabilitate? [105]
A lengthy determinate sentence is preferable [106]
Three strikes regime [117]
Sex Offender Register [120]
Non-publication order [121]
Sentence [123]
Introduction
[1]Mr G, you have pleaded guilty to:
(a)Seven charges (two representative) of unlawful sexual connection with a female under 12;1
(b)Two charges of sexual violation by rape of a female under 12;2
(c)Eleven charges of indecently assaulting a female under 12;3
(d)Two charges of incest;4
(e)One charge of doing an indecent act with a boy under 16;5 and
(f)Three charges of indecently assaulting a female aged 12–16.6
[2] You appear today for sentence on the 26 charges to which you have pleaded guilty.7
[3] The Crown seeks a sentence of preventive detention. Your lawyer, Mr Paino, argues that, instead, I should impose a finite, or what is called a determinate, sentence. As is usual in cases of this kind, I shall approach the sentencing in two stages:
(a)first, I shall fix a determinate sentence and set any minimum period of imprisonment (MPI); and
1 Crimes Act 1961, s 128(1)(b): maximum penalty of 20 years imprisonment.
2 Section 128(1)(a): maximum penalty of 20 years’ imprisonment.
3 Crimes Act 1961, s 132(3): maximum penalty of 10 years’ imprisonment.
4 Section 130: maximum penalty of 10 years’ imprisonment.
5 Section 140(b): maximum penalty of five years’ imprisonment. This is a repealed provision in force during the time of offending.
6 Section 134(1): maximum penalty of seven years’ imprisonment. This is a repealed provision in force during the time of offending.
7 First to charges five to 26 (inclusive), then to charges one to four (inclusive): R v G HC Te Whanganui-a-Tara | Wellington CRI-2020-096-2253, 3 February 2021 at [1] and 16 August 2021 at [2].
(b)then I shall decide whether you should be subject to preventive detention and, if so, the length of the MPI to accompany that sentence.
The offending
[4] I now turn to set out the background to your offending. I do so by reference to the summary of facts which, by your guilty plea, you accept as true. The facts on which the charges are based took place over many years. They will obviously be well- known to you but because sentencing is a public function it is necessary that I traverse the facts in open Court. I apologise in advance that this may be painful for the victims of your offending.
[5] The facts can be best summarised by grouping the various charges as they relate to each of the individuals against whom you offended. I will refer to them by their initials only.
GG
[6] GG is your sister and the offending related to two specific incidents giving rise to the two charges of incest.
[7] The first incident occurred between 1981 and 1982, when GG was approximately 11 years old and you were aged between 13 and 14 years. You and GG were living in the same house at the time. You called GG to your bedroom, removed her pants and underwear and then had sexual intercourse with her.
[8] The second incident was committed in 1987 when GG was 17 years old. You and GG were working together on a house in Auckland. You took GG into a bedroom and had sexual intercourse with her.
GT
[9] GT is your cousin. The offending gave rise to one charge of an indecent act with a boy under 16, which occurred between 1984 and 1986 when GT was aged between five and seven years, and you were aged 16 to 17. GT was staying at his
aunty and uncle’s house, where you were also living. You took GT down to your bedroom, lay behind him and then rubbed the head of your penis around his buttocks.
KF
[10] KF is your other sister. The offending against her gave rise to one charge of indecent assault on a female under 16, which occurred between 1984 and 1986, when KF was aged between two and half to four years old, and you were 16 to 18 years old. KF lived with you and other family members at the time. You took KF down to your bedroom and rubbed your penis against her. You then ejaculated between KF’s legs.
DG
[11] Nine charges relate to DG, your niece. The offending occurred between 1993 and 1998 on three separate occasions. Those charges are for sexual violation by unlawful sexual connection, indecent assault on a girl under 12 years and indecent assault on a girl between 12 and 16 years.
[12] The first incident occurred when DG was approximately seven years old and you were aged 25. You were staying at DG’s home address. DG woke up to you standing next to her bed. You then removed her underwear, rubbed and penetrated her vagina with your fingers and forcibly kissed her.
[13] The second incident occurred when DG was 10 to 11 years old. You and DG were travelling with others in DG’s mother’s van. You were both seated beside each other and shared a blanket. Under the blanket, you touched her leg, both over and under her underwear, rubbed her vagina, including her clitoris and the opening of her vagina. You also placed her hand on your penis and made her stroke it.
[14] The third incident occurred when DG was aged 13 years old, when she, her father, his partner and you were spending a night at a Taupō hotel. You entered the bathroom and watched DG shower. You then forcibly kissed her and touched her breasts and vagina. You then stopped when she said she would tell someone. When her father and his partner returned, you left the hotel and did not return.
PD
[15] PD is your former partner’s daughter. Between 2003 and 2004 there were three offences of indecent assault on a girl under 12 years, when she was aged six years old and you were aged 35. PD lived with you and her mother.
[16] On several occasions you entered PD’s bedroom and touched her body and masturbated against her back.
[17] On another occasion, you came into the blanket hut that PD had made in the lounge. You lay on top of her without any pants on and touched her vagina, both over and under her clothing.
[18] On another occasion when alone in your room with PD, you pulled down your pants and made her rub your penis.
SK
[19] SK is the niece of your partner. The offending against her was serious repeated sexual violence comprising of:
(a)two charges of sexual violation by rape;
(b)one charge of sexual violation by unlawful sexual connection, being anal connection;
(c)five charges of sexual violation by unlawful sexual connection, involving repeated offending with two charges being representative charges; and
(d)one charge of indecent assault on a child under 12, relating to kissing the victim’s lips and body.
[20] SK had a close relationship with her aunt and would often stay at her aunt’s house, which was also your address. The offending occurred between 2011 and 2012, when SK victim was aged 12 and you were aged 35.
[21] On one occasion, when her aunt was asleep, you removed SK’s pants and told her to lean over the arm of the couch and stick her buttocks out. You then made several attempts to put your penis in her vagina, pushing SK’s head down on the arm of the chair as you did so.
[22] On another occasion, you entered the room where SK was sleeping and pulled down her pants and underwear. You then touched her vagina and placed your fingers inside her vagina, causing her vagina to bleed. You then attempted to put your penis into her vagina and then put your penis into her mouth. When SK yelled in pain, you covered her mouth and told her to be quiet. You then tried to make her take some unknown pills, holding her mouth so she would have to swallow them. She pretended to swallow the pills but later removed them from her mouth.
[23] On another occasion, after dropping SK’s aunt at work, you drove SK and your son, who was asleep at the time, to a remote location. You then lay on top of SK and removed her pants. You kissed her, touched her vagina and placed your penis inside her vagina. You only stopped when SK’s crying and screaming woke your son.
[24] On one occasion after you had sexually violated SK, you masturbated yourself and ejaculated into her mouth.
[25] On another occasion when you were looking after SK and your son, whom SK believes was asleep at the time, you kissed SK down her body and removed her pants. You kissed, licked, rubbed and touched her vagina and inserted your fingers into her vagina.
[26] On at least one occasion, you told SK to go into the bathroom with you where you removed her pants, licked her vagina and tried to put your penis inside her vagina.
[27] On several occasions, you would force your penis into SK’s mouth and make her perform oral sex on you. When she used her teeth to hurt you to make you stop, you would pull her head back by her hair and tell her to stop using her teeth or she would get “a hiding”.
MM
[28] MM is your partner’s niece. In December 2019, you offended against MM, who was nine years old at the time, when you were aged 51, which led to one charge of indecent assault on a child. MM had a close relationship with her aunt and would stay over at her address, which was also yours, during school holidays.
[29] On another occasion, when MM was sitting on the couch and watching television in the lounge by herself, you crawled towards her, and kissed her leg, upper thigh, neck and lips. You performed this act repeatedly.
Victim impact statements
[30] Mr G, that is a summary only of the facts and it probably does not do justice to the full extent of your offending. The offending has had extremely significant effects for your victims. The victim impact statements we heard read out this morning are very disturbing. Not all of your victims have chosen to read a victim impact statement, but I have no doubt you have caused immense damage to all of them. It is clear that all of them are having significant issues as a result of what you did to them.
Personal circumstances
[31] I am going to talk now about your personal circumstances, Mr G. These are relevant because it is important that I recognise who you are and your particular circumstances and background that led you to this point. They are also relevant to calculating an appropriate sentence, as I will come to.
[32] You are 53 years old. You whakapapa to Ngāpuhi. I have received two reports from health assessors (under s 88 of the Sentencing Act 2002) that also detail your background, which I shall now set out.
[33] You were born in Porirua, the ninth of twelve siblings. Your parents separated while you were a child. You wanted to live with your mother but, as you describe it, “ended up with Dad”. After your parents separated, you experienced bullying from your half-brothers towards you and your sister. Your half-siblings also taught you to break into houses and shoplift. You noted your parents were also verbally abusive.
[34] At around the age of 10, you were sexually abused by your father’s friend, but you believed you had a “close relationship” with the man and “fell in love” with him. This continued into your early adolescence. He died before you were 16. After his death, you noted another sexual abuse experience, and that this became “normal” for you. You say that you now understand that, given your upbringing and the experiences you had as a child and young person, you misunderstood the emotions you had as a victim and have imposed those misunderstandings and distorted views on at least one of your victims.
[35] You struggled at school, although you were good with maths. And you did not learn to read until your late twenties. You were occasionally truant and were caught up in fights. You moved to Auckland when you were 16 and attempted a mechanics course.
[36] Your substance abuse history included the use of alcohol, cannabis and solvents. As for your relationship history, you have been in five long-term relationships. You sought casual sex also during your first relationship. That relationship ended when you were charged with indecently assaulting your partner’s niece and daughter. Those do not form part of the charges before me today.
[37] You noted that all your harmful sexual behaviour occurred in the context of stable relationships with women, where you had access to young children through those family relationships.
Purposes and principles of sentencing
[38] I now turn to the principles and purposes of sentencing. These are set out in the Sentencing Act 2002 and I must take them into account in sentencing you. The relevant principles in your case are accountability for the harm you have done to your victims and to the community and making you responsible for your actions. Also relevant here are denunciation and deterrence of your conduct and protection of the community.8
8 Sentencing Act 2002, ss 7(1)(a), (b), (e), (f) and (g).
[39] Chief among the principles relevant today is protection of the community. This will be the most important consideration when I consider whether you will serve a determinate sentence or preventive detention. You need to be held accountable for the grave and serious harm that you have caused by your offending, to the victims, to their whānau, and to the community. However, any sentence imposed must be consistent with sentences imposed in similar cases,9 and be the least restrictive outcome that is appropriate in the circumstances.10
Sentencing options
[40] The real issue I need to determine today is whether to impose a determinate sentence of imprisonment. That means a sentence of imprisonment of a prescribed number of years, and perhaps with a minimum term you must serve before being eligible to apply for parole. The alternative, and the sentence the Crown urges me to adopt, is the indeterminate sentence of preventive detention. This is a sentence that has no end date. It would be for the prison authorities/Parole Board to determine when you should be released. They would do that only when they were satisfied you no longer posed a threat to the community. You would remain managed by the Department of Corrections for the rest of your life and, if released, might be recalled to prison at any time.
Determinate sentences
[41] In order to determine that question, however, I need to first determine what the determinate sentence would be if I were to impose one.
Starting point
[42] I do this by assessing a starting point. The starting point is the sentence that would be imposed on the most serious of the charges on which you have been convicted. These are the charges of sexual violation and rape. I have to consider the features of your offending that make it more serious, and any features that make it less serious.
9 Sentencing Act 2002, s 8(e).
10 Section 8(g).
[43] The second step is to make necessary adjustments to the starting point to reach the appropriate sentence for all your offending. I also consider matters that relate to you, personally, because these may also lead me to adjust your final sentence, either upwards or downwards.
[44] So, first, to assess the appropriate starting point I consider the most serious offences. As I mentioned earlier, these are the sexual violation and rape offences. I have considered what is called a “guideline” decision for sexual violation offending. That is the decision of the Court of Appeal in R v AM.11 It applies to sentencing taking place after 31 March 2010.12 All offending in relation to SK and MM occurred post 31 March 2010 and R v AM applies.
[45] In R v AM, the Court of Appeal identified bands of offending for sexual violation where the lead offence is rape or penile penetration of the mouth or anus or violation involving objects.13 The bands of offending depend on the seriousness of the charges and the Court suggested sentence starting points for each band.
Relevant aggravating factors
[46] In R v AM the Court of Appeal set out a non-exhaustive list of factors relevant to the analysis of a defendant’s culpability for offending of this type.14 I note the following aggravating features of your offending.
[47] First, the scale of the offending. You have committed serious sexual offences, over a 38 year period. It was repeated, and in the case of SK, occurred over seven instances. In some of the offending, you persisted while the victims were in pain.
[48] The victims were vulnerable, particularly due to their age. This was especially so during the later offending. The youngest victim was between two and a half and four years old.
11 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
12 At [125].
13 At [90].
14 At [34]-[64].
[49] There was an abuse of trust, which was present to a high degree. These were intrafamilial relationships you had, either by direct relation or a child or niece of a partner. Many also stayed in your home during this time, or when you were their adult supervisor.
[50] You also manipulated or coerced your victims, calling them “special” or “pretty”. You threatened to give SK a hiding to ensure she complied with your demands.
[51] Lastly, the profound impact on the victims is plain from the victim statements before this Court.
[52] The Crown says your offending falls within band four, which is the most serious band. Your counsel, Mr Paino, agrees that it falls within “the higher bands”. Offending in band four attracts a starting point of between 16 and 20 years’ imprisonment. The Court of Appeal in R v AM described band four as:15
[108] The same sorts of factors that place offending towards the higher end of rape band three will apply here but it is likely that the offending in rape band four will involve multiple offending over considerable periods of time rather than single instances of rape.
[109] Perhaps the paradigm case of offending within this band is that of repeated rapes of one or more family members over a period of years as is illustrated by the present case. Offending of this nature, especially that involving children and teenagers will attract starting points at the higher end of this band as indicated by the authorities discussed in R v S (CA64/06)100 and R v Proctor. Gang or pack rape is another situation which is likely to fall within this band.
[53] The Court also then referred to and summarised cases that fall within the higher end of band four, noting the common feature of offending occurring over a period of time, involving a breach of trust of vulnerable victims and leading to severe impacts on those victims.16
[54]The Court also set out cases falling within the lower end of band four.17
15 Footnotes omitted.
16 At [111]–[112].
17 At [109].
[55] I will summarise the facts of five significant band four cases which have some features comparable to your case:
(a)W (CA247/2010) v R: 18 a starting point of 17 years’ imprisonment was adopted for offending against the appellant’s stepdaughter, aged 13 at the beginning of the offending, which lasted two and a half years. The offending included rape, digital penetration, sexual connection between her mouth and his genitalia and vice versa. On one occasion, a second victim – the appellant’s own daughter – had swapped beds with the first victim, and the appellant, mistaking her for the first victim, indecently assaulted the second victim. A minimum period of imprisonment (MPI) of nine years was imposed.
(b)R v F: 19 A starting point of 19 and a half years’ imprisonment, with an MPI of 50 per cent, was imposed for 36 charges of sexual offending against F’s daughter. They included specific and representative charges of rape and sexual violation by unlawful connection. The victim was aged between 10 to 11 when the offending began, running away and reporting it to police aged 25. F was controlling and coercive and became violent when the victim resisted. The victim impact was extensive, and the Court took this into account weighing heavily the victim’s vulnerability.
(c)R v Washer: 20 a starting point of 19 years’ imprisonment was adopted for 13 representative charges relating to sexual conduct with a girl under 12, sexual conduct with a person under 16, and sexual violation by unlawful sexual connection. The victim was Mr Washer’s stepdaughter, aged between nine and 14 over the course of the offending. The offending involved performing oral sex, penile penetration of her anus and rape. He admitted some of the offending and denied other charges before pleading guilty to all charges. After
18 W (CA247/2010) v R [2010] NZCA 561.
19 R v F [2018] NZHC 1313.
20 R v Washer [2017] NZHC 1683.
the mitigating discounts, the end sentence was 14 years’ imprisonment, with an MPI of eight years.
(d)B (CA196/2010) v R: 21 the Court of Appeal upheld a sentence of 19 years’ imprisonment, based on a 21-year starting point, imposed on a father for 12 counts of sexually abusing his three youngest children repeatedly between 2001 and 2008. Representative charges of rape, anal intercourse and oral sexual connection, as well as sexual violation by digital penetration and indecency, against all three victims were involved. Although the sentencing Judge had not followed the R v AM (CA27/2009) methodology, the Court concluded that the Judge had not been wrong to adopt the 21-year starting point. In doing so, the Court noted the scale and duration of the offending, the number of victims, their vulnerability, the breach of trust and the harm done to them.
(e)R v Taimo: 22 the Court of Appeal upheld the sentence of 22 years’ imprisonment (with a starting point of 23 years). The appeal was brought by the Crown seeking preventive detention after the respondent was convicted of 95 charges (52 of which were representative) of sexual offending against 17 boys over 30 years. The offending included sexual violation by unlawful sexual connection, and involved mutual masturbation, mutual oral sex and anal sex. The offending occurred almost daily for periods of months or years. The offending took place through a school and rugby club, with the boys often spending nights at the respondent’s home. Preventive detention was not imposed due to age and the health of the respondent.
[56] The Court in R v AM also set out bands for unlawful sexual connection (USC) offending. These bands apply to sexual violation by USC offending which involves digital penetration. Your offending against DG would into the second USC band.23 It involved a breach of trust and significant harm and vulnerability. DG was seven years
21 B (CA196/2010) v R [2011] NZCA 654.
22 R v Taimo [2019] NZCA 427.
23 Starting point of four to 10 years’ imprisonment for relatively moderate seriousness, involving two or three aggravating features to a moderate degree: R v AM at [117].
old at the time and is your niece. She gasped for air due to pain, and you had been persistent in forcing your tongue down her throat.24
[57] In relation to the indecent assault on a child offending, some of that (for example, against GT) occurred historically (in 1984 to 1986), while you committed other of the offending from the mid-1990s to the mid-2000s. That offending would have resulted in terms of imprisonment under the legislation in force at the time. Most of that offending involved victims under 12, all involved significant age disparities and abuses of trust.
Discussion
[58] I am satisfied that your most serious offending falls within band four of R v AM. I agree with the Crown that your case is similar to that cited by R v AM at [109], given the length of time, number of victims, young age and family connection.
[59] In totality, the Crown submits an appropriate global starting point for all of your offending is in the region of 20 years’ imprisonment. The Crown notes that the offending against SK and MM also falls into a band four categorisation, with multiple aggravating factors. Furthermore, the unlawful sexual connection involving very young victims elevates your culpability. There is no guideline judgment for incest, but your offending against GG, which first occurred when she was only 11 years old, with a high degree of vulnerability, also elevates your culpability. The maximum penalty for incest is 10 years’ imprisonment.
[60] Comparing this case to those I have referred to above, I have concluded that your offending falls between W v R (starting point of 17 years) and R v F (starting point of 19 and a half years) in terms of seriousness. While those cases had fewer victims and shorter time spans of offending, the seriousness and depravity of each were more serious and sustained. Overall I conclude they are comparable.
24 The maximum penalty for sexual violation increased from 14 years’ imprisonment to 20 years’ imprisonment from 1 September 1993. The sexual violation by unlawful connection offending against DG occurred between April 1993 and 1994. See R v W (2006) 23 CRNZ 531 (CA), De Reeper v R [2012] NZCA 617 at [50] and R v Rihari [2021] NZHC 3334, at [44]-[45], as to the retrospective application of guideline judgments and the application of present day attitudes to the sentencing process.
[61] For the reasons I have explained, I adopt a starting point of 18 years’ imprisonment for all of your offending.
Personal aggravating and mitigating factors
[62] Next, I consider whether there are any factors personal to you which would result in a reduction or an increase to that starting point.
Guilty plea
[63] A full discount of up to 25 per cent of the starting point is available. Mr Paino says you should have the full benefit of that: you pleaded not guilty to charges that were not accepted and the Crown amended those charges and, in some instances, the summary of facts, to which you then immediately pleaded guilty. You also cooperated with Police in naming other victims.
[64] I accept you should have a 25 per cent deduction from the starting point for your guilty plea.
Personal mitigating factors
[65] In sentencing you today, I must also take into account your personal, family, community, and cultural background. I have set these out above. The information before the Court is similar to that which would be recorded in a s 27 cultural report. In particular, as your counsel notes, there is a linkage between the sexual abuse committed against you as a child and your offending, because of how it has distorted your sense of sex and love. While it is no excuse for your actions, it provides some relevant context and background that I must take into account. A discount of 10 per cent is warranted in this case.
Youth
[66] Sometimes a discount may be given to take account of the defendant’s youth at the time of the offence.25 Such discounts are applied to note the neurological
25 R v LB [2020] NZHC 94 at [42].
difference between young people and adults, and the effect of long-term sentences on youth.26 But youth alone cannot justify radically reducing a sentence, and so such discounts vary according to the particular circumstances of the case.27
[67] The Crown submits that a discount for youth could only be applied to the offending against GG, GT and KF, when you were aged 19, 16 and 16. However, overall, the Crown says little should be made of this given the offending has continued throughout your life, with the most recent offending in 2019. This suggests your offending was not due to your youth.
[68] I agree that no discount should be allowed specifically for your youth in relation to the offending against GG, GT and KF.
Prior offending
[69] The Sentencing Act allows me to apply an “uplift” to the sentence for your previous convictions. This is usually on the basis that it will be a deterrent to future offending. The rationale for an uplift was stated by the Court of Appeal in Orchard v R:28
[39] … Previous convictions are relevant as an indicator of character and culpability, or because they show the need for a greater deterrent response, or as an indicator of risk of reoffending.
[70] The Crown submits that if a determinate sentence is imposed, then an uplift of between two to three years’ imprisonment is appropriate for your prior offending and because it is necessary to protect the public.29
[71]You have previous convictions for:
(a)sexual intercourse with a girl aged 12 to 16, committed on 5 September 1990;
26 Churchward v R [2011] NZCA 531 at [78]–[85].
27 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [83].
28 Orchard v R [2019] NZCA 529 (footnotes omitted).
29 R v Leitch [1998] 1 NZLR 420 (CA) at 430.
(b)indecent assault of a girl under the age of 12, committed on 30 July 1995; and
(c)indecent assault of a girl under the age of 12, committed on 20 September 1995.
[72] The Crown has referred to two case: Carline v R, where preventive detention was overturned, but the starting point was increased to reflect the risk posed by the offender,30 and R v Tamati, where a starting point of 13 years was uplifted by two years for prior offending and safety considerations.31 I do not think either of those cases is relevant or useful because of their quite different facts.
[73] I am unconvinced about the deterrent effect of an increase in sentence for your previous offending. I will not impose an uplift for your previous offending.
Conclusion in relation to determinate sentence
[74] From a starting point of 18 years’ imprisonment, the discounts of a guilty plea and personal factors (a total of 35 per cent) result in an end sentence of 11 years and eight months’ imprisonment for all your offending.
Minimum period of imprisonment (MPI)
[75] I turn now to consider whether, if I set a determinate sentence, I should impose an MPI.
[76] A court can impose an MPI on a determinate sentence if the factors in s 86 of the Sentencing Act 2002 are satisfied:
86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
(1)If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
30 Carline v R [2016] NZCA 451.
31 R v Tamati [2021] NZHC 2885 at [19].
(2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
(3)[Repealed]
(4)A minimum period of imprisonment imposed under this section must not exceed the lesser of—
(a)two-thirds of the full term of the sentence; or
(b)10 years.
(5)For the purposes of Part 6 of the Criminal Procedure Act 2011, an order under this section is a sentence.
[77] Fixing an MPI requires a two-stage process. First the fixing of a determinate sentence, which I have already done. Then I must consider whether “the offending itself is sufficiently serious so that for the offender to serve only the ordinary minimum period of one-third of the length of the sentence would not be enough to punish, deter and denounce the offending.” If so I may fix a minimum non parole period at a level (not more than two-thirds of the nominal length of the sentence or 10 years) which does sufficiently punish, deter and denounce the offending.”32
[78] The Crown refers to the health reports that say you pose a high risk of relevant re-offending. It submits that, if I impose a determinate sentence rather than preventive detention, the maximum MPI should be given, to ensure protection of the community.
[79] In the normal course, if I imposed a determinate sentence of 11 years and eight months’ imprisonment, you would be eligible for parole after serving one third of the sentence.33 Given the nature of your offending, that would, in my view, be insufficient to hold you accountable, deter and denounce your conduct.34 I also note the comments in R v Washer, that for prolonged sexual offending, MPIs longer than 50 per cent are
32 R v Brown [2002] 3 NZLR 670, (2002) 19 CRNZ 534 (CA) at [35].
33 Parole Act 2002 s 84(1).
34 Sentencing Act 2002, s 86.
common, with MPIs of 50 per cent imposed where personal mitigating factors are present.35
[80] I conclude that a minimum period of imprisonment of eight years is appropriate if I impose a determinate sentence.
Preventive detention
[81] As I have said, the real issue today is whether I should impose the indeterminate sentence of preventive detention. That option is available to me because you have committed a qualifying offence36 and you were over the age of 18 when you committed the offending against DG, PD, SK and MM.37
[82] The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.38 Protection of society has always been an element of sentencing; in the case of preventive detention, that dimension predominates.39
[83] But preventive detention is not a sentence of last resort or a punishment in itself.40 It is all about assessment and evaluation of risk.
[84] I may only sentence you to preventive detention if I am satisfied you are likely to commit another qualifying offence if you are released on parole after a finite sentence.41
[85] There are a number of factors I have to take into account in making that decision. Those factors are:42
(a)any pattern of serious offending disclosed by your history;
35 R v Washer, above n 20, at fn 10.
36 The offences of sexual violation by rape, sexual violation by unlawful sexual connection, incest and indecent assault on a girl under 12 years: Sentencing Act 2002, s 87(5)(a).
37 Sentencing Act 2002, ss 87(2)(a) and (5)(a).
38 Sentencing Act 2002, s 87(1).
39 R v C (CA249/02) [2003] 1 NZLR 30 (CA) at [5].
40 R v Evans [2018] NZHC 69 at [27].
41 Section 87(2)(c).
42 Sentencing Act 2002, s 87(4).
(b)the seriousness of the harm caused by your offending;
(c)information indicating a tendency for you to commit serious offences in the future;
(d)the absence of, or failure of, efforts by you to address the cause of your offending; and
(e)the principle that a lengthy determinate sentence is preferable, if this provides adequate protection for society.
[86] In addition to those five factors, I must also consider the possibility of an extended supervision order (ESO) at the conclusion of any finite sentence.
[87] To help me in this decision two reports, as the law requires, were ordered from health assessors. 43 These are the reports from Megan Greer, Registered Psychologist, dated 20 October 2021, and from Dr Oliver Hansby, dated 6 December 2021. In those reports they discussed the likelihood of you committing another qualifying offence. I will briefly refer to each of those reports, but I emphasise that the decision ultimately rests with me.44 In coming to my decision I will of course, take into account the experts’ opinions but I must make my own decision as to risk, having regard to all the evidence.
[88] Ms Greer’s report states that your offending is characterised by an “early onset, life course persistent pattern”. Your offending commenced when you were a teenager, and you have continued to sexually offend against children into your adulthood. Dr Hansby diagnosed you with “paedophilic disorder, non-exclusive type, with predominantly female attraction”, which is medically described as involving “recurrent, intense sexually arousing fantasies, sexual urges, or behaviours involving sexual activity with a prepubescent child or children”. Dr Hansby characterised your offending as a “chronic and frequent history of sexual violence, predominantly perpetrated against female children, whom [you] had access to by virtue of family or
43 Sentencing Act 2002, s 88(1)(b).
44 R v Johnson [2004] 3 NZLR 29 (CA), (2003) 21 CRNZ 196 at [19]; R v Exley [2007] NZCA 393
at [46].
close relationships”. He notes that your history of sexual violence typically involved you cultivating unsupervised access to the children and engaging them in a psychologically coercive relationship. Dr Hansby says you exploited the power difference inherent in this coercive relationship alongside varying degrees of physical coercion.
[89] Ms Greer’s report notes that you fall into a well-above average risk of re- offending within five years, which is the highest category of risk. Dr Hansby also made a similar assessment, rating your risk of reoffending as an above average risk, although suggesting it was difficult to accurately predict your future risk. That being said, as the Crown notes, Dr Hansby used only one actuarial tool to assess risk, which does not provide probability estimates, whereas Ms Greer’s analysis utilised several tools.
[90] I have also reviewed the Provision of Advice to Courts (PAC) report, dated 14 September 2021. The PAC report assesses you to have a “high likelihood of reoffending”, noting in particular:
The victims are all of vulnerable age, both male and female, familial and non familial. This is of concern and will place Mr [G] at an assessed higher risk of re-offending in the future, given the varied demographics of his victim types.
[91]There are many victims of your offending and as Ms Greer noted:
This, along with facilitating opportunities to offend (i.e., creating opportunities to be alone with victims) and offending in a context that risked detection, suggests a strong drive to engage in sexual offending behaviours against children and adolescents known to him.
[92] Ms Greer also notes your “atypically high level of sexual preoccupation and a tendency to be sexually demanding”. In her opinion, you have distorted beliefs about sex with children and sex as intimacy, as well as a “deviant sexual interest in children” and a tendency to use sex as a coping mechanism. These, Ms Greer says, contribute to your sexual offending over time.
[93] That being said, she also commented that your risk is likely to reduce approaching 10 years, but it is unclear by how much. Ms Greer notes that greater
confidence in risk reduction is possible if “[you] experience a reduction in [your] sexual drive and [on] successful completion of intensive group-based residential treatment to address distortions and personality patterns that maintain deviant sexual attraction to children”. However, she goes on to say that “neither can be confirmed as likely at this point.”
[94] Importantly, when you had been on a treatment programme (WellStop) following a previous conviction for child sexual offending, your engagement, in Ms Greer’s opinion, was “to tick a box”. As to your prospects of future engagement in such programmes, Ms Greer commented:
… his entrenched personality patterns, experience of trauma, and limited ability to integrate timelines and recall details of his offending may likely interfere with his immediate ability to meaningfully engage in the intensive group treatment programme.
[95] Commenting on the potential for interventions to change your risk profile, Dr Hansby noted that the extent of improvement may nonetheless be limited by your denials and self-awareness deficits.
[96] This, alongside the superficial engagement with past programmes and “entrenched personality types” is a cause for concern. Ms Greer also commented:
Mr [G] has shown poor response to previous treatment and sanction to his past offending. This was likely due to his normalisation of his behaviour, minimisation of the effects of his behaviour, high sexual preoccupation, not disclosing prior offending and his fragile self-esteem.
[97] On the other hand, Dr Hansby has noted that you have “not previously had access to a substantive sexual offender treatment programme, pharmacological interventions or intensive supervision”. Such interventions and age may improve your risk profile. Relevant to that, you reported to Dr Hansby that you started receiving daily medication of 20mg paroxetine in mid-November 2021 and that, as at the date he interviewed you, your libido had considerably decreased. The medication has apparently taken away your urge to become sexually aroused.
[98] Your lawyer has submitted that there are other relevant factors in determining your risk profile. First, there has been your self-referral, before your arrest, to a sexual
treatment programme. You also cooperated with Police during the interview and named other victims. Your cooperation extended to the health assessors when they were preparing their reports and your probation officer. You pleaded guilty to a significant number of charges. You have been willing to receive treatment, and there is available long-term treatment. Mr Paino says you have taken prescribed medicine, as I have noted above, and that parole would ensure a controlled lifestyle.
[99] These factors do demonstrate some willingness on your part to change and lower your risk profile. But these factors must also be balanced against the assessment of risk reached by both report writers. While there is some hope that this risk may reduce, what is of concern to me is the reported level of normalisation and minimisation and the lack of self-reflection and self-awareness.
[100] On this basis, I am satisfied that you are likely to commit another qualifying offence if you are released on parole after a finite sentence.
[101]I now turn to the five specific considerations set out in s 87(4).
Is there a pattern of serious offending?
[102] From the health reports, there is a pattern of recurrent, persistent and concurrent sexual offending against female and familial children as well as adolescent victims. You have also had prior convictions that follow a similar pattern, when you were 23 years old in 1990 and offended against your sister’s partner’s daughter, who was 12 at the time and living with you and your sister. Five years later you were imprisoned for indecently assaulting your partner’s seven-year-old daughter and your 10-year-old niece.
What is the seriousness of the harm?
[103] The seriousness of the harm caused is clear and cannot be disputed. Sexual violation is a serious offence with lifelong harms caused to victims. Your offending was extensive, prolonged and involved seven victims who in some cases faced repeated offending. The victim impact statements that have been submitted and read out in Court today detail the real pain that has been continued through your offending,
long after the offending. That offending has affected the long-term mental wellbeing of your victims.
Do you have a tendency to commit serious offences in the future?
[104] It is clear to me from the matters I have set out above that you do have a tendency to commit future serious offences.
Is there an absence of efforts to rehabilitate?
[105] You have made some efforts to address the causes of your offending. Your engagement at WellStop was not thorough and, as Dr Hansby noted, you also failed to disclose the offending at the time, inhibiting your ability to properly engage in the treatment. On the other hand, I note the factors your counsel has discussed, such as your expressed willingness to undergo treatment, pro-actively signing up and taking medication.
A lengthy determinate sentence is preferable
[106] Lastly, I consider the principle that a lengthy determinate sentence is preferable where this provides adequate protection for society.
[107] One of the factors I must take into account is the possibility that on your release you would be made subject to an ESO.45 An ESO is not an “agreeable alternative” to preventive detention,46 but it is a potential safety valve” which shores up the principle that a finite lengthy sentence is preferable to preventive detention.47 In finely balanced cases, the possibility of an ESO being imposed may tip the balance in favour of a finite sentence.48 The Crown notes that while you will likely be eligible for an ESO at the completion of a determinate sentence, there is a complex test for an ESO, beyond an assessment of whether there is a high level of risk of committing a particular offence And, the Crown says, an ESO may not be sufficient to provide community protection. Whether an ESO would be sought, and imposed, and its terms, is uncertain. There
45 R v Mist [2005] 2 NZLR 791 (CA) at [100].
46 R v Hutchinson [2007] NZCA 55 at [19].
47 R v Mist, above n 45, at [101].
48 R v Parahi [2005] 3 NZLR 356 (CA), (2005) 21 CRNZ 754 at [87]; see also R v Hohaia [2018] NZHC 254 at [48].
may well be some difficulty in crafting an ESO that does provide adequate protection, given your victims have predominantly been family or familial, rather than, say, random members of the public.
[108] The Crown also notes the case of R v SRH, where the harm caused to the community supported the notion that “no sentence other than a sentence of preventive detention would be appropriate”, with the Court also commenting that the defendant’s willingness to engage in treatment may fade over time.49 The Crown submits that case is comparable to the present. There the defendant pleaded guilty to 49 charges of sexual offending, against more than 11 child victims, two of whom were the defendant’s daughters.
[109] In addition, as noted by the Court of Appeal in Antonievic v R,50 preventive detention can create an incentive to fully participate in treatment and rehabilitation, whereas a finite sentence can be completed without the need to take responsibility for your own rehabilitation. And in R v Bryant, the Court of Appeal observed that during preventive detention:51
… the offender controls his own destiny. Successful participation in the course of treatment, such that he will not pose an undue risk to the safety of the community if released, will be determinative of his final release date. The advantage of this incentive by comparison to the situation of a prisoner subject to a finite term is obvious.
[110] A finite sentence is to be preferred where there are encouraging features even where high risk factors are present.52 Your counsel also notes the case of R v King where a finite sentence was imposed despite both health assessors’ opinions of a risk of further offending, on the basis the defendant had not had the opportunity to engage in intensive rehabilitation.53
[111] I have considered R v King, but the defendant in that case and the nature of the offending was not directly comparable to your situation. The offending was not the level of long-term sexual abuse that is present in your case, and Mr King also faced
49 R v SRH [2019] NZHC 2893 at [52]–[53].
50 Antonievic v R [2017] NZCA 87.
51 R v Bryant CA263/03, 16 December 2003 at [23].
52 Adams on Criminal Law at [SA 87.07B(3)].
53 R v King [2019] NZHC 537.
other problems such as substance abuse and issues to work through in his mental wellbeing, which provides a different factual matrix to which risk can be assessed, especially when not having had the opportunity to address such issues.
[112] Having regard to all the circumstances of your case, and the assessed high risk of you committing a qualifying offence on release from a determinate sentence, I have concluded that a sentence of preventive detention is necessary to protect the community. As in Antonievic v R, your situation is one where preventive detention may create the necessary incentive to fully participate in long-term treatment and rehabilitation.
[113] Having concluded that a sentence of preventive detention is necessary, I must also set a minimum period of imprisonment.
[114] In R v C, the Court of Appeal set out a two-step test in setting an appropriate MPI under s 89(2):54
(a)First, consider what MPI properly reflects the gravity of the offending on the basis of punishment, denunciation and deterrence; and
(b)Second, consider whether that period is adequate for public protection purposes. If not, the MPI fixed at the first step must be increased to the level which is considered necessary for the purpose of public protection.
[115] The Crown has submitted that an MPI is required to reflect the gravity of your offending and that a minimum period of five years’ imprisonment would be inadequate to address the risk you pose to the community. On that basis, the Crown says an MPI of 10 years’ imprisonment is appropriate.
54 R v C (CA249/02) [2003] 1 NZLR 30 at [11].
[116] I consider that an MPI that properly reflects the gravity of your offending is seven years. I also consider that period is adequate for public protection purposes. It also means that you will be able to access therapeutic treatment at this point.55
Three strikes regime
[117] Charges of sexual violation and indecent acts on a child are serious violent offences for the purposes of the three strikes regime.56 Accordingly you are now subject to the three strikes regime and I am obliged to give you a warning. You will be given a written form of the warning, but I must now do so in oral terms.
[118] If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
[119] If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
Sex Offender Register
[120] Charges 2 and 5-26 inclusive are qualifying offences under the Child Protection (Child Sex Offender Government Agency Registration) Act 2018. As you are being sentenced to imprisonment for those offences, you must be registered on the Child Sex Offender Register.57
Non-publication order
[121] Finally, before I pronounce your sentence, I consider the question of name suppression.
55 R v SRH above, n 49, at [55].
56 Sentencing Act 2002, s 86B. For offences prior to 2010, you are not required to be warned.
57 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 7.
[122] There is currently an interim order in place prohibiting publication of your name and any information that may identify you. That order is for the purpose of protecting the victims of your offending. Ms Bishop for the Crown has sought leave to file submissions in relation to a permanent order for non-publication of your identifying details, once she has had an opportunity to seek the views of all of the victims.58 Mr Paino may wish to respond to any submissions. In the meantime the interim order remains in place.
Sentence
[123]Mr G, please stand.
[124]Your sentence is as follows:
(a)On charges 2 and 5-26 inclusive, I sentence you to preventive detention with a minimum period of imprisonment of seven years.
(b)On charge 1 (incest) I sentence you to seven years’ imprisonment.
(c)On charge 3 (indecent act on a boy under 16 years) I sentence you to one year’s imprisonment.
(d)On charge 4 (indecent assault on a girl under 12 years) I sentence you to two years’ imprisonment.
[125]All sentences are to be served concurrently.
[126]You may stand down.
Gwyn J
Solicitors:
Crown Solicitor, Wellington Paino & Robinson, Upper Hutt
58 Criminal Procedure Act 2011, s 200(6).
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