R v Garraway

[2013] NZHC 611

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF THE VICTIM PURSUANT TO S 200

CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-019-002210 [2013] NZHC 611

THE QUEEN

v

MARK GARRAWAY

Hearing:         26 March 2013

Counsel:         J M O’Sullivan for the Crown

R M Mansfield for the Prisoner

Judgment:      26 March 2013

SENTENCING NOTES OF WYLIE J

Distribution:

J M O’Sullivan: [email protected]

R Mansfield: [email protected]

R V GARRAWAY HC HAM CRI 2010-019-002210 [26 March 2013]

[1]      Mr Garraway, you may remain seated until I ask you to stand.

[2]      Mr  Garraway,  you  appear  for  sentence  today,  having  been  found  guilty following trial before a jury, of the following offences:

(a)       Sexual violation by rape;

(b)      Sexual violation by unlawful sexual connection (digital penetration); (c)      Sexual violation by unlawful sexual connection (oral sex);

(d)      Indecent assault.

Each of the sexual violations is an offence pursuant to s 128B of the Crimes Act

1961.  Each carries a maximum penalty of 20 years’ imprisonment.  The indecent assault is an offence pursuant to s 135 of the Crimes Act.  It is subject to a maximum penalty of seven years’ imprisonment.

[3]      Your trial took place in the District Court.  You have been sent to this Court for sentencing because the District Court considered that a sentence of preventive detention might be appropriate.

Background Facts

[4]      While you filed a memorandum for your sentencing, which made it clear that you  dispute much of the factual  background,  Mr Mansfield,  appearing  on  your behalf today, quite properly accepted that you must be sentenced on the facts which are consistent with the jury’s verdicts.

[5]      The offending occurred sometime in mid-2002.  The victim was 17 years of age at the time.  She resided in Paeroa.  Her sister apparently worked as a stripper.  It seems that the sister gave the victim’s telephone number to you.  You contacted the victim and invited her to travel with you from Paeroa to Hamilton.  You offered her the prospect of employment.  She understood that you were offering her work as a stripper.  She had some limited experience of that kind of work.

[6]      You drove to the victim’s address to collect her and drive to Hamilton.  You picked her up sometime between 3.00 and 5.00 pm in the afternoon.  You had your two pre-school children with you in the car at the time. You drove the victim to your residential address in Hamilton.

[7]      Once you were at the property, you invited the victim to make herself comfortable.  You left the property for a short period, to take your two children to another house.  You then returned and invited the victim to have some wine with you.   She agreed.  At some stage, you had the victim dress up in various outfits, stating that you liked to know how strippers looked before you hired them.  During the course of the evening, you told the victim that you were opening a nightclub. She, however, started to have some reservations as to whether there would be any work available for her.  She said that at some point during the evening, you told her that there was no work for her.  She sent text messages to various people asking them to come and pick her up.

[8]      As the night progressed, you eventually fell asleep.  The victim went to one of your daughter’s bedrooms.  There were two single beds in the room.  She got into one of the beds, fully clothed.

[9]      At some stage, you appeared at the bedroom door.  The victim pretended to be asleep.  You came up to the victim, pulled the covers back and started to remove her jeans.  The victim asked you what you were doing. You responded that you “just wanted to play”.  You then pulled the victim’s pants down while holding her wrists together. You then digitally penetrated her.  She told you “no” at least six times. The digital penetration went on for about five minutes.  You then scooped her up in your arms and carried her down to your bedroom, where you sexually violated her by raping her.  You then performed oral sex on her and had her commit an act of oral sex on you.  You then resumed having intercourse.  The victim gave evidence that the violations continued for some hours.

[10]    It was the victim’s evidence that by the time she got to the bedroom, she recognised that it was futile to resist you.  She was scared of resisting you further for fear of what could happen to her were she to do so.

[11]     She stayed at your address for the night.  She was scared to leave because she was not from Hamilton and she had no way of contacting anyone for help.  The next morning, she asked you to take her home. You said that you were too busy. You left, but returned at some later stage.  When you returned, you indecently assaulted the victim by lifting up her top and touching her stomach while you were trying to fondle her breasts. Again, the victim responded by saying “no” in a forceful manner. On this occasion, you did desist.  You left the address shortly after that, and did not return until mid to late in the afternoon.  The victim contacted her sister, who came to the address and collected her.

[12]     When you were spoken to by the police, you stated that you did not know the victim, and you denied the allegations.  You gave evidence at your trial.  You stated that the victim was known to you as a prostitute, and that you hired her to come to your house to have sex with you while your partner was away.  You submitted that all acts of sexual connection were consensual.

[13]     Obviously, the jury rejected your version of events.

Pre-Sentence Report

[14]     You are 51 years old.  You were born and raised in the United Kingdom, and you moved to this country when you were 10 years old.  You did not particularly enjoy coming to New Zealand.   You stated that  you were bullied, harassed and excluded by your peers.  You missed your old friends in the United Kingdom, and you consider that you were not accepted in your new environment.  You became involved in petty crime from an early stage and you left school at an early age without any formal qualifications.  You have worked sporadically over the years, primarily as a scaffolder, but you have not held down employment for any great period of time. You became involved in the sex industry in 1991.

[15]     Your  two  children  are  in  full-time  care.    You  are  not  currently  in  a relationship, although you have previously been involved in three long-term relationships.

[16]     You have referred to your lifestyle prior to mid-2002 as being a mixture of chaos, instant gratification and escapism with no responsibilities.  You accept that you were a violent person in the past, but do not consider that you are still a violent person. You do accept that you have an “emotionally immature temper”.

[17]     You did not respond to any questions from the probation officer regarding your sexual thoughts or tendencies.  Rather, you have written a letter setting out your view of the offending.  You made that letter available to the probation officer who interviewed you for the pre-sentence report.  I have read it.

[18]     You have another conviction for unlawful sexual connection in 2007.  That conviction involved a female over the age of 16 years.  It postdates the present offending.  You have not acknowledged responsibility for this offending and it was the subject of an appeal.  You also have an extensive criminal history involving violence, dishonesty, firearms and driving offences.  You have amassed over 70 convictions.

[19]    You continue to deny the present offending.  Factors contributing to your offending were considered to be your propensity for violence, your need for sexual gratification, a sense of entitlement and an antisocial lifestyle.  It was noted that you remain  largely  untreated  for  your  rehabilitative  needs,  and  that  you  have  only become involved in psychological intervention briefly.   Your responses were considered generally superficial.  The probation officer assessed you as being at a high risk of reoffending, and of harming others.  He considered that your account of your offending demonstrated no insight as to why you sexually offend, and that you do not evidence any empathy with your victim, or any remorse.

[20]     A sentence of imprisonment was recommended.

Victim Impact Statement

[21]     I have heard this morning from the victim.  She has read her victim impact statement to me.  It is clear that your offending has had a significant effect on her. She notes that you ignored her right to say no, and subjected her to a “physical,

mental and emotional hell”.   She says that the pain and trauma of the event has scarred her life and that your offending continues to affect her on a daily basis.  It has clearly altered her perspective and attitude towards men and her feelings of self worth and confidence have been shattered.

Medical/Psychological Reports

[22]     There are three reports before me, one from a Dr Kumar, another from a Dr Green  and  the  third  from  a  Dr  Dean.    Dr  Dean’s  report  was  obtained  by Mr Sutcliffe, who was previously counsel assigned to you.

[23]     Dr Kumar’s report is dated 9 July 2012.  Dr Kumar noted that you have an extensive history of conduct disorder during childhood, polysubstance abuse and antisocial personality disorder.   He noted your conviction for unlawful sexual connection with a female over 16 years of age in 2007.  He also noted that you have several convictions for assault-related charges.  He observed that your pattern of sexual offending could not be considered as high frequency, that it does not appear to be selective, and that it is likely to be associated with your antisocial personality. The Doctor considered that it is noteworthy that offending behaviour amongst the sex offender population tends to decrease with age, but that in your case, your sexual offending appears to have brought you before the judicial system only in more recent years as you have got older.   The Doctor noted that you have not received any therapy to address your risk of future reoffending.  He acknowledged that predicting the likelihood of you committing a further qualifying sexual offence is fraught with difficulty.  He went on to consider the applicable literature and to apply it to your circumstances.  First, the Doctor noted that you present with multiple actuarial risk factors that are associated with the risk of sexual recidivism.  He discussed those factors, and noted that many of them appear to have occurred in the context of your involvement in the sex industry.  He considered that the presence of those various actuarial factors place you in the group of offenders with a moderate to high risk of committing sexual offending.  He then went on to note that the risk of committing a sexual offence is often associated with certain dynamic risk factors, which are amenable to change.  He noted that you do not present with any underlying mental illness that could affect your risk of sexual recidivism, but that you do present with

cognitive distortions, and that you tend to groom your potential victims.  The Doctor suggested that you should be offered appropriate rehabilitation and if that were to be offered, your future risk may change.

[24]     Dr Green’s report is dated 11 July 2012.  He noted that you have undertaken individual psychological treatments in the past, and suggested that you have demonstrated some insight regarding lifestyle factors and high-risk situations that have contributed to your offending. You continue to deny the offending in respect of which you are being sentenced.  Dr Green considered that it was not possible to directly assess your offence-related thoughts, emotions and attitudes, and Dr Green noted that given your current denial, you are ineligible for participation in any programme aimed at reducing your risk of sexual recidivism.  The Doctor went on to assess your potential to reoffend.  He used a number of assessment tools.  Using one tool,  the Automated  Sexual  Recidivism  Scale,  he  assessed  you  as  being  in  the medium to low risk category.  However, if you were sentenced to any term of imprisonment, he noted that you would then be assessed as being in the medium to high risk category.  This scale assessed you by reference to static risk factors.  Using another scale, the Stable 2007 Scale, which is a measure of the dynamic risk of sexual reoffending, you were assessed as being in a high-risk group.  Based on his overall consideration of the actuarial data, dynamic risk factors and other relevant risk information, you were assessed as being at a high risk of sexual reoffending, and a moderate risk of general reoffending.  The Doctor observed that given your history of sexual offending, any future offending would be most likely to take the form of unlawful sexual connection, or indecent assault, and aimed against vulnerable adolescent females known to you, and that it could involve the use of alcohol.  The Doctor considered that there were some protective factors.  He noted your age and that there is likely to be a reduction in risk of future sexual offending after the age of

50, with a significant reduction after the age of 60.   The  Doctor did note that although you have undertaken limited individual treatment with department psychologists on four occasions, you have not undertaken treatment that targets your rehabilitative needs associated with your sexual offending, and which is of an intensity and duration to mitigate your risk of reoffending.

[25]     Dr Dean’s report is dated 17 November 2012.  He also noted that prediction is difficult.  He considered that there is an increased risk to sexually offend in the context of substance abuse and because of your involvement in the sex industry.  He considered that if you reoffend, the likely victim will be a teenage emotionally vulnerable woman, who is associated with, or wants to be associated with, the sex industry.  He considered that offending against a stranger or a child was unlikely.  He considered that your risk would be reduced through non association with the sex industry, abstaining from illicit drugs and intoxication, limiting your contact with teenage or other vulnerable women, and avoiding contact with antisocial associates. He also noted that your sex drive will diminish with age.  He considered that it is likely that you will require ongoing supervision in the community to ensure compliance with any conditions imposed and that psychological treatment to address your sexual attitudes, insight into your offending, self awareness of sexual risk, and general proclivity to offending, could be beneficial.

Submissions

[26]     Ms  O’Sullivan  for  the  Crown  submitted  that  there  are  a  number  of aggravating features to your offending, and that your offending falls within the top end of what is known as Band 2, discussed in the decision of the Court of Appeal in R v AM.1   She submitted that a starting point of between 11–13 years’ imprisonment was available to the Court, and that there should be a further uplift to take into account  the  aggravating  features,  namely  your  serious  criminal  history,  and  the

offending committed since the offending at issue before me.  She submitted that an uplift for the aggravating features of three years is available to the Court.  She also sought that a minimum term of imprisonment should be imposed pursuant to s 86 of the Sentencing Act.   She also argued that, on the available information, you are a repeat sexual offender who is at high risk of committing another qualifying sexual offence when you are released from custody.   She submitted that a sentence of

preventive detention should be imposed to protect the community from you.

1      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

[27]     Mr Mansfield on your behalf submitted that the offending for which you are being  sentenced  does  not  warrant  the  imposition  of  a  sentence  of  preventive detention.  He argued that the Crown has overstated the gravity of the offending, that it has made submissions regarding your criminal history which are unable to be substantiated on a balanced view of the same, and that it has unnecessarily elevated the level of risk posed by you to the community.  Mr Mansfield argued that a finite sentence ought to be imposed, and that a finite sentence is sufficient to protect the community from such risk as you pose.  He argued that taking into account all relevant aggravating and mitigating features of the offending, the appropriate starting point for a finite sentence based upon the lead offence is one of seven years’ imprisonment.  He further submitted that no uplift is required for the additional offences, because all of the offending is of the same type and nature, and because all are directly connected in terms of timing.  He accepted that an uplift is required to reflect the previous conviction for sexual offending.  He pointed out, however, that you have only one such previous conviction, and that it is for an offence which postdates the present offending.  He submitted that an uplift of no more than six months would be justified, and that as a result, the starting point for sentencing you should be seven years and six months’ imprisonment.   He argued that personal mitigating factors warrant a reduction of some six months’ imprisonment, and that a final sentence of seven years’ imprisonment is appropriate.

Principles of Sentencing

[28]      In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act.   In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for  and  an  acknowledgement  of  your  offending,  and  the  need  to  denounce  the conduct in which you were involved.  I am also mindful of the need to deter others from committing the same or similar offences.  I have taken into account the gravity of the offending with which you were involved, including your degree of culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing  similar  offences.    I  am  also  mindful  that  I  must  impose  the  least

restrictive outcome that is appropriate in the circumstances and I need to consider your rehabilitation in the circumstances which have arisen.

[29]     In this case, there are various aggravating features, both personal to you and to the offending that I am also required to consider under s 9 of the Act.

Analysis

[30]     I intend to look first at the appropriate finite sentence, and then to consider whether or not to impose a sentence of preventive detention.  The lead offence is the conviction for sexual violation by rape.

[31]     The decision of the Court of Appeal in R v AM is the guideline judgment which now applies to all sentencing for offending of this kind.  The decision is dated March 2010.  Your offending occurred in 2002.  The Court of Appeal made it clear and Mr Mansfield quite properly accepted that R v AM applies, despite the fact that it postdates your offending.

[32]     The Court of Appeal in R v AM set out four bands of offending for rape and analogous sexual offending. Those bands are as follows:

(a)      Rape — Band 1 — six to eight years; (b)      Rape — Band 2 — seven to 13 years; (c)      Rape — Band 3 — 12 to 18 years;

(d)      Rape — Band 4 — 16 to 20 years.

[33]     For each band, the Court described the features of the offending which might be present at the lower and higher end of the band.  The Court also provided illustrations based on previous cases.

[34]     Band 1 is appropriate for offending at the lower end of the spectrum (that is offending where the aggravating features are either not present or present only to a

limited extent).  Band 1 is not the appropriate band for offending where the level of violence is serious, the case involves an extended abduction, a victim who by reason of factors such as age, or mental or physical impairment is vulnerable, or an offender who acts in concert with others.

[35]    Band 2 is appropriate for a scale of offending and levels of violence and premeditation that are in relative terms, moderate.   The 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.

[36]     The Court also discussed features of such offending, which tend to shift the offending from the lower to the higher end of each of the individual bands.  The following were noted:

(a)      planning and premeditation;

(b)      violence, detention and home invasion; (c)      the vulnerability of the victim;

(d)      harm to the victim; (e)      multiple offenders; (f)      scale of offending; (g)      breach of trust;

(h)      hate crime;

(i)       degree of violation;

(j)       mistaken belief in consent;

(k)      consensual sexual activity immediately before the offending;

(l)offending against a person with whom the offender has been in a relationship; and

(m)     the views of the victim.

[37]     Given  that  your  offending  occurred  in  2002,  I  have  also  considered  the guideline judgment then applicable — R v A.2     In that case, the Court of Appeal noted that the maximum penalty for rape had been increased by Parliament in 1993. It considered that a sentence of eight years’ imprisonment should be the starting point in a contested rape case.  It expressly noted that this starting point was not necessarily the norm.

[38]     In considering your offending, I have considered the following:

a)       Planning and Premeditation

[39]     In my view, there was premeditation, albeit relatively modest premeditation. You contacted the victim and you took her to your address in Hamilton. You initially told  her  that  you  could  offer  her  a  job.    Further,  you  offered  her  alcohol  and persuaded her to dress up in clothes that you had at your residence. The fact that you fell asleep on the couch during the course of the evening, suggests that there was no overall plan to commit rape.  However, I have no doubt that you would have been optimistic that sex would occur when you invited the victim to your house and then supplied her with alcohol.  I do not however accept the Crown’s submission that you deliberately isolated the victim and effectively prevented her from leaving.  You did leave the premises to take your children to another address, and insofar as I am aware, there was nothing to stop the victim leaving at that time.  Further, she was

able to text others and later contact her sister, who came and picked her up.

2      R v A [1994] 2 NZLR 129 (CA).

[40]     There  was  some  violence  in  this  case.    Violence  is  implicit  in  sexual offending of this kind, but the evidence at trial suggested that there was the use of additional, albeit comparatively modest, violence by you.  You did restrain the victim’s hands while you took off her jeans.   You grabbed the victim by the hair when you raped her.  You grabbed her head and forced it towards your penis when you required her to perform oral sex on you.  However, I accept that there was no particularly cruel or extreme violence.

c)       Vulnerability

[41]     The victim was vulnerable due to her age.  She was 17 years old at the time. Further, there was a significant disparity in your ages.  You were aged 40 years.  You were offering the victim employment, and you were in a position of power or at least potential power over her as a result.  Notwithstanding that the victim had previously done some limited work in the adult industry, in my view, the victim was vulnerable in all of the circumstances that applied.

d)       Harm to the Victim

[42]     There was no significant physical harm to the victim.  The Crown suggests that there was significant psychological harm to her.  I readily accept that this was the case.  The psychological harm and the extent of that harm is apparent from the victim impact statement which has been read to me this morning.  Such harm is inevitable in offending of this kind.

e)       Scale of the Offending

[43]    The scale of the offending is significant.  The offending occurred over a prolonged period of time, from late one evening through until the afternoon of the following day.  Mr Mansfield has argued that on a broad basis, the sexual violation charges are all part and parcel of a single incident.  However, the offending of sexual

violation by rape appears to have taken place over a period of at least an hour and possibly longer.   In my view, this was more than a simple and opportunistic rape. The sexual violation by rape was repeated and prolonged.   Further, there were multiple acts of sexual violation.   Moreover, the indecent assault occurred the following day.

[44]     Taking into account all of these matters, in my judgment, your offending falls within band 2 discussed in R v AM.   The victim’s youth, the age disparity, the multiple acts of sexual violation and the duration of the offending are the primary factors which have driven me to this conclusion.

[45]     For the conviction for sexual violation by rape, I consider that the appropriate starting point is one of eight years and six months’ imprisonment.  Further, an uplift is required to acknowledge the additional offending.   While there is a danger of double counting because I have already considered that additional offending in determining where the sexual violation by rape falls within the bands discussed in R v AM, the additional offending was, in my view, significant.  I adopt an uplift of an additional 12 months’ imprisonment to acknowledge the additional offending.

[46]   The Crown submits that your conviction for the 2007 unlawful sexual connection is an aggravating feature of the offending.

[47]     I am not persuaded that it is an aggravating feature of the offending in its own right.   It is not aggravating in the way that earlier similar offending would be. However, it is unrealistic to ignore the later offending.  I take it into account shortly when considering your criminal record.  It establishes that the present offending is not to be regarded as isolated or a typical.3   I also take it into account in considering

preventive detention, which I come to shortly.

3      R v Barrett [1999] 1 NZLR 146 (CA); R v Harrison HC New Plymouth CRI 2009-043-3587,

8 November 2010; R v Stephens CA 272/01, 6 December 2001.

[48]    First, I note that you have an appalling criminal record.  Relevantly, your offending committed prior to the present offending includes convictions for male assaults female in 1993, disabling with intent to stupefy in 1998 and assaulting a person with a stabbing or cutting instrument in 2000, and kidnapping also in 2000.  It is a matter of concern that the present offending took place only a short time after you had been released from custody after serving a sentence in respect of earlier offending.  There is also the 2007 offending that I have noted.  In my view, it is appropriate to increase your sentence by a period of six months to acknowledge your criminal record.

[49]     There is only one mitigating factor, namely the fact that you spent some

12 months on EM bail. As I understand it, you were arrested in November 2009 and granted EM bail in June 2010.  One of the conditions imposed on the bail bond was a requirement that you were subject to a 24-hour curfew.  The EM bail was rescinded in about June 2011, when you were arrested on unrelated matters.  In total, you have spent approximately 12 months on EM bail, albeit that you were charged with other offending over that period.

[50]     The Court of Appeal have recognised that there can be a need for a Judge, in determining mitigating factors, to reflect the fact of a restricted bail regime which would not otherwise be taken into account when calculating a sentence of imprisonment.4

[51]     I accept that it is appropriate to make a deduction for the time that you have spent on EM bail, although I do note that you breached the bail conditions while you were  on  bail.    In  my  view,  the  appropriate  reduction,  on  the  limited  materials available to me, is a period of four months.

[52]     Mr Mansfield has referred me to a number of other matters which he says are mitigating features — namely the family support which you enjoy, your educational

and career aspirations, the fact that you have completed a CADS course while in

4      R v Faisandier CA 185/00, 12 October 2000; R v Tamou [2008] NZCA 88.

custody, and the fact that you are motivated to undertake further counselling and/or treatment that the Court considers appropriate.  He submitted that this should entitle you to a further discount.

[53]     I do not accept this submission.  As I understand it, you have always enjoyed family support.   It has not stopped you offending in the past.  While it is to your credit that you have recently attended an alcohol and drug abuse programme, once again, you have had the opportunity to do that in the past as well.  You have also developed an interest in art and Mr Mansfield has made available to me examples of your work.  That, however, is not relevant in the present context.  The matters raised by Mr Mansfield are, in my judgment, too little and too late.

[54]     As a result, the end sentence which I would impose if I am to impose a finite sentence, would be one of nine years and eight months’ imprisonment.

[55]     I now turn to consider the possibility of preventive detention.

Preventive Detention

[56]     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.  Its primary function is not punitive.5

[57]    Section 87 of the Sentencing Act 2002 empowers this Court to impose preventive detention when three conditions are established:

(a)       First,  the  offender  is  convicted  of  a  qualifying  sexual  or  violent offence;

(b)Secondly, the offender was 18 years of age or over at the time of the commission of the offence;

5      Sentencing Act 2002, s 87(1); R v C [2003] 1 NZLR 30 (CA) at [33]–[34].

another qualifying sexual or violent offence if released at the expiry date of a finite sentence.

Another prerequisite for imposing a sentence of preventive detention is that the Court has considered reports from at least two health assessors about the likelihood of the offender committing a further qualifying sexual or violent offence.6

[58]     Once these prerequisites have been fulfilled, the Court must still exercise its discretion in deciding whether it is satisfied that the prisoner is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date.  The Court is required to have regard to the mandatory factors set out in s 87(4), namely:

(a)       any pattern of serious offending disclosed by the offender’s history;

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

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

(d)the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and

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

[59]     There is guidance on the imposition of sentences of preventative detention in the judgments of the Court of Appeal in R v Leitch7  and R v Mist.8    The inquiry

required is essentially risk-based and forward looking.

6      Sentencing Act 2002, s 88(1)(b).

7      R v Leitch [1998] 1 NZLR 420 (CA).

8      R v Mist [2005] 2 NZLR 791 (CA) — overturned by the Supreme Court, Mist v R [2005] NZSC

77, [2006] 3 NZLR 145, but only on jurisdictional grounds.

[60]     In your case, it is clear that the first two jurisdictional prerequisites detailed in s 87(2) of the Act are met.  You have been convicted of three counts of sexual violation and of one count of indecent assault.   These are qualifying offences in terms of s 87(5) of the Act.  Secondly, you were well over the age of 18 at the time of the offending.

[61]     There are a number of reports from well and appropriately qualified medical and psychological assessors before me.

[62]     The principal issue for me to determine is whether or not I am satisfied that you are likely to commit another qualifying offence if released from custody at the expiry date of any finite sentence.   In considering this question, I have taken into account each of the factors detailed in s 87(4) of the Act.  I comment on each briefly.

Pattern of serious offending

[63]     While there are previous convictions of concern, the offending in this case is historical.  The only other similar offence was committed in 2007.  I have considered the material made available to me by the Crown and by Mr Mansfield in relation to that offence.  While there is some factual similarity, I do not consider that the two offences of themselves can be said to constitute a pattern of serious offending.

[64]     I have considered your criminal history in its totality.  It suggests that you are prone to violent offending, on occasion against women.  However, in my judgment, it does not necessarily demonstrate a proclivity towards either sexual or non-sexual offending against young females.

Seriousness of Harm to the Community Caused by the Offending

[65]     I have already referred to the victim impact statement.  Your offending has clearly caused significant stress and psychological harm to the victim.  The harm that is  caused to  young persons  from  adult  sexual advances  can  be very significant indeed.  The Court’s focus must be on whether the offending, when seen in context, demands the protection of society or a group within society.  While the offending

excessive violence.  Rather, it seems that you have targeted a vulnerable teenage girl. I accept, however, that the long-term effects on such victims should not be underestimated.

Information Indicating a Tendency to Commit Serious Offences in the Future

[66]     I have noted already the various reports which have been made available to me.  You are variously assessed as presenting a moderate to high, or a high risk of sexual reoffending in the various reports.  There is, however, force in the argument that none of the reports address the risk you will pose on completion of programmes designed to assist you.  Rather, the reports assess your risk of reoffending at the time the reports were prepared.  Dr Dean reports that your risk can be mitigated with appropriate rehabilitative treatment, monitoring and planning.  He suggests that you are sufficiently motivated to come up with a workable plan, once you are released from prison.   The possibility of parole is likely to be a factor making it more probable that you will undertake appropriate treatment.  The fact that you have recently attended and successfully completed an alcohol and drug abuse programme gives some ground for optimism in this regard.   One of the major factors which seems to have precipitated your sexual offending seems to have been your involvement with the sex industry.  If that factor can be removed, then temptations such as the availability of suitable victims will be minimised.

The  Absence  of,  or  Failure  of,  Efforts  by You  to  Address  the  Causes  of  your

Offending

[67]     Until very recently, it was not evident that you had meaningfully engaged in any courses to date to treat your offending.  As I have noted, you have recently had the benefit of some assistance.   I also acknowledge that you have expressed a willingness to participate in sexual offender’s programmes.  However, you have still to acknowledge the most recent offending, and until you do, it is unlikely that you will be accepted into any programme.

[68]     While you continue to deny your offending, it does seem relatively clear from the reports that I have received that you generally acknowledge that you need help, that you are willing to receive treatment, and that you are, at least to an extent, motivated to reduce the factors that have precipitated your offending.

[69]    One factor which can be important in such cases is the availability of an extended supervision order.   The Parole (Extended Supervision) Amendment Act

2004 inserted a new provision into the Parole Act, to provide for the imposition of extended supervision orders on sexual offenders.   Unfortunately, however, that possibility is not available in your case, given the provisions of s 107B(2)(a) of the Parole Act 2002.

[70]     While  the  matter  is  finely balanced,  I am  not  persuaded  that  preventive detention is appropriate in your case and I decline to impose a sentence of preventive detention on you.

Sentence

[71]     Mr Garraway, will you please stand.

(a)      In respect of the charge of sexual violation by rape, you are sentenced to a term of imprisonment of nine years and eight months.

(b)In  respect  of  the  charge  of  sexual  violation  by  unlawful  sexual connection (digital penetration) you are sentenced to a term of imprisonment of seven years.

(c)      In  respect  of  the  charge  of  sexual  violation  by  unlawful  sexual connection (oral sex), you are sentenced to a term of imprisonment of seven years.

term of imprisonment of two years.

The terms of imprisonment are to be served concurrently.

Minimum Period of Imprisonment

[72]     I now turn to the question of a minimum period of imprisonment.

[73]     Under s 86 of the Sentencing Act, where an offender receives a determinate sentence of imprisonment of more than two years, the Court may order that the offender serve a minimum period of imprisonment.  The Court must be satisfied that the one-third default minimum is insufficient to either hold the offender accountable for the harm done, denounce their conduct, deter the offender or others, or protect

the community.9   A minimum period of imprisonment must not exceed two-thirds of

the full term of the sentence.

[74]     In my view, your offending is sufficiently serious that release after one-third of your sentence would constitute an insufficient response in the eyes of the community.  Further, there is the ongoing safety risk that you pose.  That risk will decrease as you age.  I am, however, particularly concerned that to date, you have not  acknowledged   your  offending.     While  that  makes  it  unlikely  that  the Parole Board would consider your release, in my view, it is appropriate to impose a minimum term of imprisonment to protect the community from you and to ensure that there is ample time available for you to consider your position, and engage meaningfully in the appropriate rehabilitation programmes.

[75]     I impose a minimum term of imprisonment of six years.  That is just under two-thirds of the full term of your sentence.

9      Sentencing Act 2002, s 86(2).

Wylie J