R v G
[2021] NZHC 218
•19 February 2021
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-004-3578
[2021] NZHC 218
THE QUEEN v
“G”
Hearing: 19 February 2021 Appearances:
S McMullan for the Crown J N Olsen for the Defendant
Judgment
19 February 2021
SENTENCING NOTES OF POWELL J
R v “G” [2021] NZHC 218 [19 February 2021]
[1]You appear for sentence today having pleaded guilty to:
(a)two charges of sexual violation by unlawful sexual connection;1 and
(b)three charges of doing an indecent act on a child under 12 years.2
Approach to sentencing
[2] I begin my task today by explaining what I have to do and my approach to sentencing you. The Sentencing Act 2002 sets out the purposes and principles of sentencing. The primary purposes of sentencing in this case are to hold you accountable for the harm that you have done;3 to promote in you a sense of responsibility for, and acknowledgement of, that harm;4 to denounce your conduct;5 to deter you and others from engaging in such conduct;6 and to protect the community.7
[3] In turn, the principles of sentencing that are particularly relevant are: the need to take into account the gravity of your offending, including the degree to which you are responsible;8 the seriousness of that offending;9 the impact of the offending and the impact of your offending on the victims.10 It is also necessary to consider consistency with appropriate sentencing levels in other cases.11 I note this Court is required to impose the least restrictive outcome appropriate in the circumstances.12
[4] Determining an appropriate sentence for you involves two steps.13 First, I must work out a finite sentence, in other words a specified number of years in prison. Once I have done that I must then decide whether that sentence is appropriate or whether I should impose a sentence of preventive detention, in which case you would be subject
1 Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty 20 years’ imprisonment.
2 Crimes Act 1961, s 132(3). Maximum penalty 10 years’ imprisonment.
3 Sentencing Act 2002, s 7(1)(a).
4 Section 7(1)(b).
5 Section 7(1)(e).
6 Section 7(1)(f).
7 Section 7(1)(g).
8 Section 8(a).
9 Section 8(b).
10 Section 8(f).
11 Section 8(e).
12 Section 8(g).
13 Moses v R [2020] NZCA 296.
to a minimum period of imprisonment and only thereafter released at the discretion of the Parole Board when it determines that you are no longer a threat to the safety of the community.
Setting the starting point
[5] In determining the appropriate finite sentence, I begin by calculating what is referred to as the “starting point”, a term that you have heard this morning. The starting point is a term of imprisonment that reflects the seriousness of the offending to which you have pleaded guilty. As you will be aware, determining the starting point in your case is complicated by the fact that the offending for which you are to be sentenced today occurred around 2010-2011, at the same time as you were offending against the victim’s two siblings, offending for which you have already been sentenced to two separate terms of imprisonment.14
[6] As a result, and as you have heard this morning, counsel have submitted that the approach endorsed by a case called Wilson v R15 applies to sentencing you on the current charges. In broad terms I must therefore work out what the notional total starting point would have been had all of the offending been discovered at the same time and prosecuted together.
The offending
[7] Having set out that background I now turn to the offending that took place between 6 June 2010 and 22 August 2011. It was during this time that the offending against all three victims took place. During that time you lived with the family in their household. You were considered a trusted member of the family, with the victim in the present case, and her siblings, all calling you “grandad” and “poppa”. At that time the victim was four or five, her older brother and sister both around eight to nine years old.
14 Police v [G] DC Whangarei CRI-2011-088-003939, 20 December 2011; R v G [2012] NZHC 3120.
15 Wilson v R [2019] NZCA 584.
[8] In 2011, the offending against the victim’s older sister was discovered. After pleading guilty you were sentenced by Judge McDonald in the District Court to four years’ imprisonment on three representative charges of doing an indecent act on a girl under 12, with the details of that offending set out in his sentencing notes.16 In setting a starting point of 3 ½ years’ imprisonment Judge McDonald noted that your offending was premeditated, involved “repeated acts over a three month period, 3 to 5 times a week, over 12 weeks”, and that “you knew what you were doing was wrong but you continued with it”.17 He also noted that your offending involved a “gross breach of trust” with a young victim and which caused “huge” impact on the victim, the victim’s mother, and the wider whanau.18 As Judge McDonald noted, your “gross behaviour
… destroyed this family by your offending”.19
[9] Unfortunately, the offending that was condemned by Judge McDonald, as we now know, was not the end of your offending against this family. Approximately a year later your offending against the second victim, the victim’s brother, was discovered. In that case you pleaded guilty to a single charge of indecently assaulting a boy under the age of 12 years.20 On this charge Lang J sentenced you to three years’ imprisonment. The sentence was served cumulatively with the earlier sentence, but Lang J declined a Crown application for preventive detention. His Honour set a starting point of 2 ½ years’ imprisonment and, like Judge McDonald, noted your offending involved a significant breach of trust and occurred on several different occasions.21
[10] The offending at issue in today’s sentencing did not emerge until last year. As with the other offending it occurred over a prolonged period and involved multiple acts. On one occasion, the victim was bouncing on the bed in your bedroom. You told her to sit down and took off her pants. She sat on the bed crying as you rubbed your fingers around her genitalia and inserted a finger into her vagina (which is the first
16 Police v [G] DC Whangarei CRI-2011-088-003939, 20 December 2011.
17 At [14].
18 At [14].
19 At [14].
20 R v G [2012] NZHC 3120.
21 At [16].
sexual violation). You then pulled her pants back on, lifted her off the bed and let her walk out of the room.
[11] On another occasion, you met the victim as she was about to walk out of the toilet. Before she could leave you came in and shut the toilet door. You grabbed her arm to pull her closer, pulled down your pants and sat on the toilet. You held her hand tightly, forcing her to move her hand up and down your penis (the first indecent act charge). After a while, you grabbed the back of her head and pushed her mouth onto your penis (the second sexual violation). The victim cried out and tried to move away, but you raised your voice and said, “Hurry up.” When finished and before you left, you asked the victim to wait by the toilet door for a short time so no one would see her.
[12] The third incident occurred when the victim was in the bathroom washing her hands. You entered and asked if she would like to play a game. You told her to close her eyes and count to 10. You undressed her and when she opened her eyes, you pulled your pants down and forced her to wrap her hand around your penis and move it up and down (which constitutes the second indecent act charge).
[13] In the final incident forming the basis for the charges, the victim was sitting on the couch with you in your bedroom. While you were talking you touched her vagina over her shorts (that constitutes the third indecent act). She asked, “Poppa, what are you doing?” But you did not reply.
[14] It is difficult to exaggerate the effect that this has had on the victim and you must have heard something of that in the victim impact statements read out by the mother of the victim this morning. There is evidence that the victim suffered discomfort in her vagina at the time of some of these incidents. She is now 14 years old, experiences trust issues, problems sleeping, panic attacks and high levels of anxiety. As you have heard, she has relationship issues and drug problems. She has recently attempted suicide. Quite obviously, and as you have heard this morning, your actions have left her with what can only be described as a “permanent scar”.22
22 Victim Impact Statement of the victim 190326/6852; see also Victim Impact Statement of her mother.
[15] It is clear that the current offending was significantly more serious than the other offending for which you had been previously sentenced. Like the other offending, it can only be described as gross behaviour involving premeditated offending against an exceptionally vulnerable child in what constituted a breathtaking breach of trust. As you have heard from the victim statements, your current offending has had an ongoing traumatic effect on a family already devastated by your actions.
Discussion – starting point
[16] It is against the background of that offending that I must assess your starting point today. As you have heard this morning, while counsel are agreed on the approach to be taken to determine that starting point, they have been quite a long way apart with regard to what that means.
[17] Both counsel are agreed your offending stands to be considered in terms of rape band two in a case called R v AM,23 a 2010 decision which sets out guidance for sentencing different types of sexual offending. As you have heard, rape band two provides a starting point of between seven and 13 years for specified types of offending.24 Mr McMullan’s submission on behalf of the Crown, with reference to AM and various other cases,25 is that a total starting point in the region of 12-13 years’ imprisonment (being the higher end of rape band two) would have been appropriate for your offending against the victim and her siblings had all of the offending been considered together in 2012. On the other hand, the defence position, as put by Mr Olsen, was that the appropriate global starting point should be 9-10 years. That is at or slightly below the midpoint of rape band two in AM.
[18] As both counsel have noted, there are not a lot of what we call comparator cases to assist with determining the global starting point. As a result, to determine the correct starting point it is necessary to go back to AM. In its discussion with regard to setting the various bands of offending, the Court of Appeal in AM identified a number
23 R v AM [2010] NZCA 114.
24 At [98].
25 R v W (CA87/93), 4 June 1993; D v R [2019] NZCA 1; R v Te Tauri CA188/02, 15 July 2003.
of aggravating factors relevant to offending in this area26 before identifying the relevant bands. In relation to rape band two the Court noted:27
… this band is appropriate for a scale of offending and levels of violence and premeditation which are, in relative terms, moderate. This band covers offending involving a vulnerable victim, or an offender acting in concert with others or some additional violence. It is appropriate for cases which involve two or three of the factors increasing culpability to a moderate degree.
[19] In this case, as Mr McMullan noted, it is clear that a number of the relevant aggravating factors identified in AM are present to a moderate or high degree, namely:
(a)Premeditation, as Judge McDonald noted, was clearly present to at least a moderate degree;
(b)there was a high degree of victim vulnerability having regard to the age of the victim and her siblings;
(c)it is beyond doubt that there has been a high degree of harm caused to not only the victims themselves but significant harm to their mother and to the whanau as a whole;
(d)the scale of the offending, involving as it does multiple victims over an extended period of time, is also significant; and
(e)there has been a gross breach of trust involving not only an abuse of your position of trust but the fact that the offending happened in the family home.
[20] Given these factors, I conclude that the total offending was definitely more serious than that occurring in the D v R28 or R v W29 decisions relied on by the Crown. While the present offending appears to have been less serious than the decision of R v H30 relied on by Mr Olsen, that case is of no real assistance as a comparator given it
26 R v AM [2010] NZCA 114 at [34]-[64].
27 At [98].
28 D v R [2019] NZCA 1.
29 R v W (CA87/93), 4 June 1993.
30 R v H (CA101/06), 18 September 2006.
was decided prior to AM, and as you have heard AM in fact placed the R v H decision at the top of unlawful sexual connection band three making it a much more serious case than the present.31
[21] Overall, and taking into account the totality of your offending, I conclude that the starting point proposed by the Crown is too high and that proposed by the defence on your behalf, is too low. Instead I consider your offending, with two significant sexual violation charges and the multiple aggravating factors I have noted, is appropriately placed slightly above the mid-range of rape band two in AM, and accordingly adopt a notional total starting point of 11 years’ imprisonment.
Personal factors
[22] Having considered the starting point, I must then take into account your personal circumstances that are relevant, both positive and negative, including any deduction that you are entitled to for your guilty pleas.
Aggravating factors
[23] In this case the only aggravating factor at issue in determining your notional total sentence is the amount of uplift for your 1995 convictions. The Crown initially proposed a three-year uplift for your prior convictions, whereas Mr Olsen submitted in his written submissions that you are in fact entitled to a credit.
[24] As I have noted, when you were sentenced in 2011 Judge McDonald added a two-year uplift for your 1995 offending,32 being three convictions: two for indecent acts on children under 12 and one for an indecent act on a young person under 16. Justice Lang added a 1½ year uplift which not only took into account the 1995 offending but also the 2011 convictions.33 As I have discussed with counsel, it is apparent that in determining a notional total sentence only a single uplift for the 1995
31 R v AM [2010] NZCA 114 at [122]. This would indicate that the seriousness of the offending since AM justified a starting point of 17-18 years in contrast to the original starting point of 9 years imposed in 2006: R v H HC Auckland CRI-2005-4-15774, 24 February 2006. Note however that, at the time, the Court of Appeal considered that the sentencing judge had “under-stated the seriousness of the offending” and could have adopted a starting point higher (though not significantly higher) than 9 years: R v H (CA101/06), 18 September 2006 at [35].
32 Police v [G] DC Whangarei CRI-2011-088-003939, 20 December 2011 at [17].
33 R v G [2012] NZHC 3120 at [19].
offending is appropriate and no uplift can be given to reflect the 2011 convictions because these have already been taken into account in the calculation of the total starting point.
[25] Broadly, courts have tended to add an uplift of between six months to two years where an offender is charged with sexual offending against children and has one or more previous convictions for similar offending.34 The uplift tends to be higher where the circumstances of the prior offending are similar to the present offending. But I acknowledge, as Mr McMullan submitted, that this can be affected by the size of the starting point and other totality considerations. Taking these various matters together, I conclude that Judge McDonald’s assessment was correct and that an appropriate total uplift for your three prior convictions for sexual offending against children should be two years’ imprisonment, which for the purposes of calculating a notional total sentence represents an uplift of 18 per cent on the starting point.
Mitigating factors
[26] With regard to the mitigating or positive factors, the only matter advanced on your behalf is a discount for your guilty pleas. As you are aware a maximum deduction of 25 per cent is available for an early guilty plea. This was in fact the discount given by Judge McDonald in 2011, and while a 20 per cent notional discount was given by Lang J in 2012, as Mr Olsen noted, it was in fact 25 per cent because of the way in which the sentence was finally constructed. With regard to the present offending, the Crown submitted in its written submissions that you should be entitled to a 20 per cent discount but did not provide any basis for why a 25 per cent discount is inappropriate and this submission was in any event not pursued by Mr McMullan this morning. For the purposes of determining a notional total sentence I am satisfied that a 25 per cent discount overall is appropriate.
34 See for example Wilson v R [2016] NZCA 377, R v Kurei [2015] NZHC 2385, R v K (CA558/08)
[2009] NZCA 107; R v Gay [2017] NZHC 3149.
Conclusion – personal factors
[27] Adding together the uplift and the guilty plea discounts represents a net discount of 7 per cent, and results in a notional total sentence of 10 years and 3 months’ imprisonment.
Converting the notional total sentence to a finite sentence for present offending
[28] As your present sentence is intended to reflect the totality of your offending in 2010-11, it is now necessary to subtract from the notional total sentence of 10 years and three months’ imprisonment the cumulative sentences totalling seven years’ imprisonment imposed by Judge McDonald and Lang J. The result is an effective finite sentence for the present offending of three years and three months’ imprisonment for those 5 charges.
Preventive detention
[29] As I have noted at the outset, and as you have heard in my discussions with counsel today, the other principal issue between the Crown and your defence counsel was whether preventive detention should be imposed.
[30] As Mr McMullan acknowledged, in this case the Crown has not strongly argued that preventive detention is appropriate but has appropriately and responsibly brought the issue before the Court given that preventive detention was considered and rejected by Lang J at the time you were sentenced in 2012.35 The Crown notes that you have consistently been assessed as having a high risk of reoffending despite your participation in offender programmes and submits any insight you have into your offending is hard to gauge. Mr McMullan has noted that you have breached your extended supervision order or ESO, and has submitted that you were not fully engaged in the various rehabilitative programmes as directed by Corrections, and notes that you have failed drug tests as well. As a result, the Crown has submitted that preventive detention with a minimum period of imprisonment of six years may be warranted to protect the community, hold you accountable and provide you with the incentive to obtain the rehabilitation that you need.
35 R v G [2012] NZHC 3120 at [24]-[49].
[31] In contrast, Mr Olsen has submitted that it is not appropriate for preventive detention to be imposed on you at the present point in time. In his submission preventive detention would be inappropriate because the Court cannot be satisfied that you are likely to commit a qualifying offence following release, and statutory mandatory considerations weigh against preventive detention. In any case, Mr Olsen urges me to exercise my residual discretion so as not to impose preventive detention because this would disproportionately affect your rights.
Preventive detention - principles
[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 offence and I conclude the offender is likely to commit another qualifying offence if released at the sentence expiry date. In making the necessary assessment I have had the benefit of comprehensive reports from two psychiatrists, Dr Rajan Gupta and Dr John Jacques, who have detailed your troubled personal history and a range of serious issues and both have undertaken assessments of the ongoing risks that you pose from a psychiatric point of view.
[33] In undertaking my analysis, I must have regard to the following five factors in particular:36
(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 or finite sentence is preferable if this provides adequate protection for society.
[34] The analysis is therefore generally forward-looking but as with the calculation of your finite sentence the position in this case is complicated significantly by the fact the
36 Sentencing Act 2002, s 87(4).
present offending took place in 2010-11, and you have already served a significant finite sentence since that time.
Discussion – Preventive detention
[35] In determining whether preventive detention is appropriate the first question for me to consider is whether you are likely to commit a similar qualifying offence at the end of any finite sentence imposed.
[36] In making this analysis it is important to bear in mind that the present offending occurred in 2010-11. You have therefore gone without offending for a time exceeding the length of the finite term of imprisonment that I have identified had all of the offending been considered together, as well as just the specific finite term for just the present offending. As Dr Gupta noted, in such circumstances the reasons for not imposing preventive detention in 2012 therefore could be considered to hold true. Despite that, as Dr Gupta also noted, it must also be borne in mind that you were in fact in custody for much of the 2011-2021 period and after release have breached your ESO multiple times. Given those considerations, I note that both Dr Jacques and Dr Gupta have assessed the likelihood of similar reoffending as in the higher range should an opportunity present itself, although both noted the level of supervision represented by the ESO does provide a level of comfort. This is because your victims have always been known to you and most lived with you at the time of the relevant offending and when you were not living with children, you in fact did not offend for over 10 years. As a result, and as Lang J noted in 2012, you have never presented as a danger to the public at large in the sense of sexually offending against strangers or children that you are not already very familiar with. In such circumstances it is unlikely that with the ESO, and indeed your presence on the Child Sex Offender’s Register, in place that such a situation would be allowed to arise again.
[37] In addition the ESO is working in the sense that breaches of the order have been identified before you could re-offend and as a result, and as Dr Gupta notes, the experience of those breaches has provided information about how best to manage the ongoing risk that you present.
[38] Taking these various matters together, and while I accept there remains otherwise a significant risk of further offending, given the time since you committed your last offences, the nature of your offending to date, the various rehabilitative steps that you have taken over the years and in particular during your recent period in custody, and the level of protection provided by the ESO which is already in place leads me to conclude that I cannot be satisfied that you are likely to commit a qualifying sexual offence at the end of any finite sentence imposed. As a result, you are not eligible for a sentence of preventive detention.
[39] Even if I am wrong in this assessment, I would not in any event have exercised my discretion to impose preventive detention in this case. While your criminal history clearly discloses a pattern of sexual offending against children in the particular circumstances I have noted, and your offending to date has very clearly caused serious harm, you have made some significant efforts to address the causes of your offending including participating in the High Intensity Adapted Te Piriti Sexual Offender Treatment Programme in 2016 and have expressed a willingness to engage in further rehabilitation. Lang J, in sentencing you for the offending against the victim’s brother, declined to impose preventive detention in part because you were “rehabilitatable”.37 His confidence was not misplaced given you have not offended since you were sentenced in 2012. While the Crown argues your progress has been inadequate, my overall impression of the reports of both Dr Gupta and Dr Jacques is that some ground has been gained as a result of your rehabilitation efforts to date, including that you now have some insight into the risk issues you present and how those might be managed, although obviously given the breaches of the ESO there are treatment needs still to be addressed.
[40] Overall the evidence before me, and in particular the reports of Dr Gupta and Dr Jacques, leads me to conclude that the risks you pose to the community are not unmanageable and it is not therefore necessary to manage those risks through preventive detention. As a result had I considered that had the threshold requirement been met for preventive detention a determinate sentence combined with the ESO post release, the aim of which was to provide close supervision of where you are able to
37 R v G [2012] NZHC 3120 at [51].
live,38 as well as the careful release planning suggested by Dr Jacques, will be able to provide effective mitigation of your risk sufficient to protect the public.
[41] Finally, although this analysis is primarily a risk assessment looking at the protection of the community and the nature of the offending, I note that were a sentence of preventive detention to be imposed it would be likely to have significant adverse effects on your own mental health into the future.
Minimum period of imprisonment
[42] Having concluded that a sentence of preventive detention is not appropriate I turn to consider whether a minimum period of imprisonment should be imposed as Mr McMullan has submitted. As Mr McMullan has pointed out, a court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under the Parole Act 2002 if it is satisfied that the period is insufficient for all or any of the following purposes:39
(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; and/or
(d)protecting the community from the offender.
[43] Having considered the issue I conclude that a minimum period of imprisonment is not necessary in this case. The reason is that it is a matter of record that you have already served the full sentences imposed by both Judge McDonald and Lang J (a total of seven years imprisonment) which makes any further minimum period of imprisonment unnecessary in the context of this offending which as these sentencing notes have set out is inter-connected with the offending before
38 R v G [2012] NZHC 3120 at [53]-[55].
39 Sentencing Act 2002, s 86(1) and (2).
Judge McDonald and Lang J. To impose a further minimum period of imprisonment in those circumstances would be excessive and it is not necessary for the purposes set out in s 86(2) of the Sentencing Act.
Sentence
[44]This brings me to the end of the sentencing exercise. Would you please stand.
[45] On the two charges of sexual violation by unlawful sexual connection; and the three charges of doing an indecent act on a child under 12 years to which you have pleaded guilty, you are sentenced to three years and three months’ imprisonment. In particular you are sentenced to three years and three months’ imprisonment on both of the sexual violation charges, and on the three charges of doing an indecent act you are sentenced to 18 months on each of those charges. All of these terms are to be served concurrently.
[46] As your name was previously permanently suppressed in 201240 to protect the victims of your offending, the written version of these sentencing notes will be issued in a redacted form.
[47]You may now stand down.
Powell J
40 R v G [2012] NZHC 3120 at [61].