R v H HC Auckland CRI 2009-092-2

[2010] NZHC 1150

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-092-02

THE QUEEN

v

H

Hearing:         29 June 2010

Appearances: N Walker for Crown

M Mann for H Judgment:  29 June 2010

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Auckland Natali[email protected]

[email protected]

R V H HC AK CRI 2009-092-02  29 June 2010

[1]      Mr  H  you  appear  this  afternoon  for  sentence  on  23  charges  of  sexual offending against your daughter and her friends over a period of some 13 years.  The offending commenced in 1996 and ceased in 2009 when a complaint was made to the police.  The complainants ranged in age between five and 18 years.

[2]      There are two charges of sexual violation by unlawful sexual connection for which the maximum penalty is 20 years imprisonment, one of abduction for the purpose of sexual connection for which the maximum penalty is 14 years imprisonment, two of attempting to commit sexual violation by rape for which the maximum penalty is 10 years imprisonment, one of incest for which the maximum penalty is 10 years imprisonment, 14 of indecent assault for which the maximum penalty is seven years imprisonment, one of sexual conduct with a dependent family member for which the maximum penalty is three years imprisonment, and finally two of doing an indecent act with intent to offend, for which the maximum penalty is two years imprisonment.  Some of the charges are representative.

[3]      This is not the first time upon which you have appeared before the Court on offences of this type.  You have already served a substantial term of imprisonment imposed upon you in 2004.  Indeed, some of the present offending occurred while you were on parole in relation to that sentence.  I will return to that important aspect later.

Factual background

[4]      You are 69 years of age.   There are five victims, one of whom is your daughter J, now aged 18 years, but only five when your offending commenced. Most of the charges relate to her.

[5]      For some years, J’s friend S would stay overnight in your home.   On one occasion you played a pornographic movie and induced the two girls to touch each other’s genitals over their clothing.  You then touched their breast and genital areas under their clothing with your hand.

[6]      On another occasion, between about 1996 and 1998, you called the girls into the bathroom where you were masturbating in the bath.   Having ejaculated, you encouraged the girls to touch and taste your semen.

[7]      During this same period, but on another occasion, you touched S’s genitalia beneath her underwear while she was sleeping.   When she awoke, she felt herself being digitally penetrated by you.

[8]      A little later, when S was eight or nine years of age, between February 1999 and February 2001, you were visiting the home of S’s parents.   On that occasion, while covered by a blanket, you stroked S’s genitalia over her clothing.  At about the same time, on another occasion, you took S upstairs into a bedroom at your own house, got her to stand on the bed, pulled down her underwear and licked her genital area.

[9]      More recently, between February 2002 and February 2004, when S was 11 or

12 years of age, she awoke while sleeping over at your house to find you touching her between her legs, her pyjama pants having been pulled down.  At about the same time, when J was 11 or 12 years old, you got her to lie on your bedroom floor, kissed her with your tongue in her mouth and then tried to rape her.  You were unable to penetrate her however, because you could not maintain an erection.  But you accept that you would have had sexual intercourse with her if you were physically capable of doing so.  All of this occurred in or before 2004.

[10]   On 22 September 2004 you were sentenced to three and a half years imprisonment on three charges of indecent assault on a female under 12 years, and seven charges of doing an indecent act with a girl under 12 years.   You pleaded guilty to some of those charges, but went to trial on the remainder.  Those charges related to J and to two of her friends, but not of course to the offending for which you appear this afternoon.

[11]     You were released on parole on 21 January 2007, but were recalled by the Parole Board on 25 May 2007 for breaching a parole condition not to contact J or be alone with children.

[12]     You were subsequently released on home detention on 19 September 2007 on which you remained until February 2008.   Your parole period terminated in July

2008.

[13]     Regrettably, your offending continued unabated just as soon as you were released from confinement.  On an occasion when J was 15 or 16 years old, and so between October 2006 and October 2008, you drove her home from a party.  Having parked your car in a secluded spot, you asked for permission to touch her.  She said you could do so for three minutes.  You kissed her on the mouth and on parts of her body,  licked  her  genital  area,  digitally penetrated  her,  and  touched  her  breasts. When J became upset and tried to alight from the car you prevented her from doing so.

[14]     On another occasion, between May and July 2007 (probably in May given your recall to prison), you offended against D, a 14 year old friend of J.  You kissed her forcefully on her mouth and licked her face with your tongue.

[15]     In December 2008, when J was once more living with you, you got into her bed, stroked her buttocks, removed her clothing and licked her genital area.   You then attempted to have sexual intercourse with her but once more could not maintain an erection.

[16]     J’s mother, your second wife, died on Mother’s Day 2009.  Between May and August 2009, J’s friend JF moved into the house to keep J company.   On one occasion you smacked each of the girls on the bottom as they walked past you on their way out of the house.  On another occasion you kissed JF on the neck while cuddling her.  You did the same to another of J’s friends, T.  The offences against JF and T are representative.  Conduct of the sort I have just described occurred on more than one occasion.

[17]     In August 2009, J reported the present offending to the police.  In September

2009 she attempted to commit suicide as a result of what you had done to her over a period of some years.  She jumped from a railway bridge, breaking a vertebra in her back and injuring her leg.  As a result she spent almost a month in hospital.  During

that time you visited her regularly.   She was in considerable discomfort and substantially disabled.  But even in those circumstances you were unable to refrain from offending against her.   You interfered with her sexually on more than one occasion.    You  kissed  her  with  an  open  mouth,  touched  her  breasts  under  her clothing and touched her genital area with your elbow.

[18]     When you were interviewed by the police on 7 December 2009, you readily admitted the offending and indeed disclosed a number of incidents that the complainants themselves had not been able to recall.   You conceded to the police that you were sexually attracted to young girls in general, and in particular were in love with your daughter J.

[19]     You have pleaded guilty to these charges at a relatively early stage, although formal  pleas  were  not  entered  until  you  had  appeared  on  several  occasions.    I proceed on the footing that you had indicated to the Crown your intention to plead guilty by the time of your second appearance.

Victim impact statements

[20]     The principal victim is of course your daughter J.   She now lives with a family friend.   When you returned to live with her after her mother’s death, your offending against her recommenced.  It is to be remembered that by 2009 you had been sexually offending against her for some 13 years.  Her confidence suffered; she stopped attending school.   She says she got to the point where she was unable to sleep during the night, and would remain awake watching the bedroom door which she kept locked.   She would catch up on sleep during the day.   She turned to cannabis and alcohol, but found that things just became worse.  All of this led to her attempted suicide in September 2009.

[21]     The Court is told that there is an extant protection order against you and because  you are now in custody, J feels safer, but she doubts whether  you are capable  of  changing  your  ways.    She  says  there  have  been  numerous  broken promises in the past.  All of this was outlined to the Court when J movingly read out the whole of her victim impact statement.

[22]     S has also provided a victim impact statement.   She was the friend against whom you offended in earlier years.  She says whenever she went to your house, you showed pornographic movies and would ask J and S to act out what was being screened.  That led to explicit touching and to masturbation on your part.  She says you provided the girls with sweets and extracted promises from them not to tell anyone.

[23]     S has not reported the offending herself, because she was scared that J might lose your financial support if she did.   She was also worried about losing J’s friendship.  So she simply suffered in silence.  A somewhat poignant note is sounded by her when she says she felt guilty because she was eventually able to escape you while J was not.   She reports the beginning of a healing process following her disclosure to the police of the detail of your offending against her.

[24]     There  is  also  a  statement  from  D  who  says  you  took  advantage  of  her intoxicated state following her consumption of alcohol supplied by you.  Both she and T consider that young girls are safer now that you are in custody.

Pre-sentence report

[25]     You were born in England, first coming to New Zealand in 1961 when you were in the Merchant Navy.  Your first marriage lasted 28 years;  you have a son and daughter of that relationship.  You were married to your second wife for about 18 years, with two children of that marriage, J and a son aged 15 years.  You also have a fifth child, born of your relationship with a girlfriend.  You have a poor relationship with the children of your first marriage, although on the information available to the Court that does not necessarily appear to be explicable by anything you have said or done.  It is of interest to note that upon your release on parole in 2006, you returned to live with your first wife, not your second.

[26]     Your first wife died in February 2009 and your second in May 2009.  You say following your ultimate release from prison you resumed your relationship with your second wife, helping her out financially.

[27]     You speak in glowing terms of J, who you describe as a very loving daughter. That being so, it is impossible for ordinary people to understand how you could have taken advantage of her so selfishly over a period of many years.

[28]     On  the  information  you  have  provided  to  the  police,  it  seems  that  you cynically took advantage of her when you first detected the possibility of growing sexual awareness on her part at a time when she was still very young.  She asked you about reproduction, and  you  showed her a pornographic movie  as a  method of instruction.  On your account, things simply developed from there.

[29]     To the probation officer you attributed your offending to depression caused by the death of your former wives.  While you deserve some sympathy on that score, it is not tenable to suggest that the more recent offending, which simply amounted to a continuation of a deliberate and cynical course of conduct over 13 years, could be attributed to the events of early 2009.  The probation officer considers that you have minimised your offending and have attempted to attribute blame to other people and to events in your life over which you had no control.   The conclusion in the pre- sentence report is that you are cognitively distorted and a high risk recidivist sexual offender.

Sentencing purposes and principles

[30]     Sections 7, 8 and 9 of the Sentencing Act 2002 set out certain considerations which the Court must take into account when sentencing for criminal offending.  For present purposes the principal considerations which I must take into account are the need to hold you accountable for the harm you have done to your victims and to promote in you a sense of responsibility for that harm, the need to do what I can for the interests of those victims;  the need to denounce your behaviour and to deter you and others from similar behaviour in the future;  the need to protect the community and the desirability of assisting in your rehabilitation.

[31]     In determining the ultimate penalty, I must also consider the gravity of your offending and the degree of your overall culpability, the need to impose a sentence near to the maximum for offending that is close to the worst of its kind, the range of

sentences  imposed  on  similar  recidivist  sex  offenders,  and  the  effects  of  your offences on your victims.

[32]     Having said that, as the Crown acknowledges, the Court must impose the least restrictive sentence that it is appropriate to impose in the circumstances.

Aggravating and mitigating features

[33]     The Sentencing Act requires a sentencing Judge to take into account any aggravating or mitigating features, both of the offending and, separately, of the offender.  In doing so, I am bound to follow the approach very recently set out by the Court of Appeal in its guideline judgment for offending of this sort:  R v AM [2010] NZCA 114.

[34]     It is not possible to discern any mitigating features of the offending itself.  On the other hand there are several aggravating features.  The first is that you offended against a total of five young victims.  The second consideration is that each was a young girl aged between five and 18 years;  one was your daughter, the others were your daughter’s friends.  Moreover, as the Court of Appeal in AM said at [42]:

Offending will be all the more serious the younger the child and the greater the  age  gap  between  the  victim  and  the  offender.     Age  disparity  is accordingly  a  factor  in  assessing  the  extent  of  the  vulnerability  of  the victims.

[35]     Here the disparity was simply immense.  You were a man in your 60s;  your victims were all children or adolescents and so completely vulnerable.

[36]     J of course was particularly vulnerable.  You are her father.  Her mother died early in 2009.  She was living in her own home and had nowhere else to go.  The extent of her vulnerability may be gauged by the fact that she attempted to commit suicide as a result of what you did.   Indeed, and unbelievably, you continued to offend against her when she was at her most vulnerable, confined to a hospital bed, and seriously disabled.

[37]     J’s friends were also substantially vulnerable.  You offended against S when enjoying the hospitality of her parents in their home.  You offended against all of J’s friends when they were entrusted by their parents to your care and oversight, and in your home.

[38]    The next factor is that of the duration of the offending, which spanned approximately 13 years.   J suffered for virtually the whole of that time and S for several years.  This was repetitive, calculated, sustained offending over a very long period.   It was also premeditated.   There was a significant degree of grooming, particularly of J but also to a lesser extent the other victims.  You used pornographic films extensively; some at least of your victims were plied with alcohol, you engaged in discussions about sexual topics as a matter of routine.  You even offered sweets to your victims when young, by way of a bribe.  This was classic grooming behaviour evidencing a predatory intent.

[39]     Then there is the totality of your offending.  You seem to have engaged in most aspects of sexual behaviour, short of actual penetration, and from your own concession it seems that none of these girls was raped simply because you were unable to sustain an erection.

[40]     Finally, there is the effect of your behaviour on your victims.  I have already covered the victim impact reports.  Guilt, anxiety, fear and depression are evident, at least for J and S.

[41]     I turn to factors relevant to you, as distinct from the offending itself.  There are two obvious and compelling aggravating features.  First, the more recent offences were committed after you had served a substantial term of imprisonment for like offending, so it seems you learned absolutely nothing from your period of incarceration.  The second feature is that your re-offending commenced while you were still on parole in respect of that earlier sentence.

[42]     On the credit side, you are of course entitled to a discount for a plea of guilty, and I will return to that factor in due course.

Counsels’ submissions

[43]     Ms Walker for the Crown submits that this case is so serious that it justifies the imposition of a sentence of preventive detention.  Mr Mann, on the other hand, argues that a lengthy finite sentence will suffice, and that the concerns expressed by counsel for the Crown can be accommodated by a lengthy term of imprisonment, followed by an extended supervision order.

[44]     I propose to consider first what an appropriate finite term might be, and then move to consider whether, in the light of the provisions of s 87 of the Sentencing Act, a sentence of preventive detention is the only appropriate sentencing outcome.

Finite term

[45]     In R v AM the Court of Appeal identified three separate sentencing bands for unlawful sexual connection offending.  Band 3 suggests starting points of between nine and 18 years imprisonment in the most serious cases, which will involve two or more of the factors identified by the Court of Appeal, as increasing culpability to a high degree, for example, a particularly young victim or an extensive period of offending, or alternatively where there are more than three factors present to a moderate degree.

[46]     I have already outlined the most important of those factors in the present case.  They include planning and premeditation, the degree of harm to the victims, the scope and scale of the offending (five victims, a variety of offences and a 13 year offending period), and finally very serious breaches of trust.

[47]     I am satisfied that the case falls within band 3.   Ms Walker and Mr Mann each submit that it should properly be placed at about the middle of band 3, but I consider the case to fall towards the upper end of the band, by reason of the number and gravity of the identified aggravating features.   A starting point of 15 years imprisonment is appropriate.   There will be a one year uplift to reflect your prior offending, and the fact that several of these offences were committed while you were on parole.  That results in an adjusted starting point of 16 years imprisonment.

[48]     From that I deduct a discount of almost one-third (five years) to reflect your guilty plea.  That produces a finite sentence of 11 years imprisonment.

[49]     It would be appropriate also to impose a minimum period of imprisonment.  I

will return to that question later.

Preventive detention

[50]     Having determined what the appropriate fixed term sentence should be, I need now to turn to the question of whether a sentence of preventive detention should be imposed instead.   The purpose of preventive detention is to protect the community from those who pose a significant and on-going risk to the safety of its members.   The primary function of such a sentence is not punitive:   s 87(1) Sentencing Act 2002; R v C [2003] 1 NZLR 30 at 33-34.

[51]     Importantly, even if the preconditions for a sentence of preventive detention have been made out, the ultimate decision is for the sentencing Judge to make.  So it is a discretionary sentence.

[52]     Section 87 of the Sentencing Act empowers a Court to impose a sentence of preventive detention only where three preconditions are established.  The first is that the offender is convicted of a qualifying sexual or violent offence.  A number of the charges for which you are now to be sentenced are qualifying offences.

[53]     The second condition is that you were 18 years of age or over at the time of the commission of the offences.   Obviously that condition is met also.   The third precondition is that the Court must be satisfied that you are likely to commit another qualifying sexual or violent offence if released at the sentence expiry date of a finite sentence.  That is of course the crux of the matter.  In assessing that risk the Court is required to have regard to five stipulated considerations.  I deal with them in turn.

[54]     The first is whether any pattern of serious offending is disclosed by your offending history.   Ms Walker has provided a helpful analysis of your somewhat dismal offending record.  There are 33 convictions for sexual offending against girls

aged between five and 18 years, including the present 23 convictions.  There are 17 convictions  for  indecent  assault,  eight  for  doing  indecent  acts,  two  for  sexual violation and two for attempted rape.   Some of the charges are representative in character, that is, they allege a course of conduct rather than a single incident.

[55]     I  accept  Ms  Walker’s  submission  that  all  of  this  offending  must  be categorised as very serious, not only by reason of the various things you did, but because you offended against young and vulnerable members of society, who placed their trust in you.  I accept also that there is a distinct pattern to the offending.  You introduced several of your victims to pornography and alcohol and so groomed them to the point that they offered little or no resistance to your advances.  The range of offending was broad, and would, I am sure, have included rape had you been able to sustain an erection.

[56]     Moreover,  there  was  also  a distinct  similarity between  the offending  for which you now appear, and that for which you were sentenced to a substantial prison term earlier.   Ms Walker has also drawn the Court’s attention to your admission during the course of a video interview, that you had behaved inappropriately in respect of a granddaughter who, I am told, was aged 13-14 at the time.  There were text messages of a sexually explicit character, you bought her alcohol and you spent time alone with her.   There are no charges arising out of that, but I accept Ms Walker’s submission that this behaviour bears all the hallmarks of the grooming process which has been a feature of your offending against others over the past 13 years.

[57]     In  summary  therefore,  there  is  an  obvious,  established  and  longstanding pattern of grooming and sexual offending by you against young girls who come into your orbit.

[58]     The second consideration is the seriousness of the harm to the community caused by the offending.  I do not need to spend significant time on this point.  It is self-evident that sexual offending of this type against young girls has a profound effect upon the community.  That occurs in two separate ways.  First, it is simply destabilising in the sense that it is liable to give rise to dysfunctional relationships

and to dysfunctional members of society.   More particularly however, there is the effect of your behaviour on the victims themselves.  I have already discussed your daughter’s plight.  What you did had a devastating effect on her.  She, and her young friends trusted you;   you completely abused that trust by subjecting them to experiences that they ought never to have had at a time when they were at a crucial stage of their emotional and physical development.

[59]     The third factor concerns information available to the Court which might indicate a tendency to commit serious offences in the future.   A prerequisite for a sentence of preventive detention is that the Court has considered reports from at least two appropriate health assessors about the likelihood of the offender committing a further qualifying sexual or violent offence.  In the present case the Court has reports from a psychologist, Ellen Mullan, and from a psychiatrist, Dr Fernandez.   I will discuss those reports shortly.

[60]     But it is important here to observe that when you were imprisoned in 2004, primarily  for  sexual  offending  against  J,  you  acknowledged  that  you  had  a significant problem.   While in prison you completed the Te Piriti programme for men  who  sexually  offend  against  children,  and  following  your  release  you participated in the community based Te Piriti relapse prevention programme.  During the latter programme, you breached a parole condition which required you to refrain from contact with J, or being alone with children under the age of 16 without an approved adult.  During that same period and later, you reoffended against J and her friends in the manner I have already described.  Of particular note are the offences committed against J when she was confined to a hospital bed.

[61]     You concede you remain attracted to young girls, and say you are in love with J.  So, having served a term of imprisonment, having undertaken two courses of treatment, and having accepted you have a serious problem, you have simply continued to offend as before.  Indeed, some of the offences were committed when you were at risk of discovery, there being other adults in the vicinity.  Of itself, that history tends to suggest that you will commit serious offences in the future whenever the opportunity arises.

[62]     I turn to the health assessors’ reports, noting as I do so the report from the probation officer to which I have earlier referred, and which expresses the view that you pose a serious risk of re-offending in the future.

[63]     The psychologist’s report is dated 29 April 2010.  The writer notes much of what I have already said, but in addition says that it is a matter of concern that you have been unable to modify or control your inclination to offend against young girls, and that you have not been deterred by strict monitoring.  Moreover, and importantly in my view, you have persuaded those who are responsible for your oversight that you were able to self-manage your behaviour at the very time when you were re- offending.

[64]     Ms Mullan says “you are adept at deceiving and manipulating others”.  She considers you have no ability to control or delay your need for sexual gratification, and that there appear to be no remaining tools which might assist you to avoid re- offending in the future, because you have already completed intensive group therapy. Ms Mullan considers that there is a high likelihood of further sexual re-offending.

[65]     Dr Fernandez likewise expresses grave concern at the fact that you were offending while on parole, and during the very time when you were engaged in the relapse prevention programme.   Serious concern is also expressed at the fact that, against the grain of current research, you are continuing to offend into your late 60s, and so are not subject to the general tendency of sexual offenders to avoid offending as they grow older.

[66]     Importantly, Dr Fernandez says:

Mr H has engaged in therapeutic programmes but this has not prevented him from sexually offending against children.  He currently appears to have very little capacity to survive in a way in the community that does not involve him posing a risk to female adolescent children who come into contact with him.

[67]     Dr Fernandez concludes by expressing the view that “it can be stated that his risk of re-offending, should he be released within the next five years, is almost certain”.

[68]     Reference is made in the reports to the results of various established testing procedures.  Those results support the views expressed by the health assessors.

[69]     A thread which runs through all three reports suggests that although you have on numerous occasions expressed your regret for what occurred and that has been reinforced on your behalf by Mr Mann today, it is not easy to discern any significant remorse, or any real empathy for your victims.

[70]     Accordingly, there is a great deal of information to suggest that you have a tendency to commit serious offences in the future.

[71]     The fourth factor is concerned with the absence or failure of rehabilitative efforts.  Under this heading it is appropriate to note, as already discussed, that you have completed the established programmes for sexual offenders, but apparently not benefited from them, and indeed continued to re-offend while completing the relapse programme.

[72]     The fifth factor is concerned with the principle that a lengthy finite term is preferable if it provides adequate protection for the community.   This principle is always a matter requiring serious consideration.  A factor to be taken into account here is the possibility of an extended supervision order to follow the expiration of any finite term of imprisonment:  R v Mist [2005] 2 NZLR 791. The purpose of an extended supervision order is to protect the community from those who have a propensity to offend sexually against those who are under the age of 16 years. Of course you have never been the subject of such an order.

[73]     Mr  Mann  places  considerable  emphasis  on  this  factor.     But  in  the circumstances of this case, the availability of an extended supervision order cannot be accorded significant weight, having regard to your offending while on parole and at a time when you were still engaging in a course of treatment.  The effectiveness of any monitoring regime of the sort which an extended supervision order would entail must be in serious doubt.

[74]    A sentence of preventive detention is always imposed with a degree of reluctance.  To some extent it marks a failure of society adequately to integrate one of its members into the community.  But in the end I have reached the view that you are likely to commit another qualifying sexual or violent offence at the expiration of a finite sentence, and that the appropriate sentence is one of preventive detention.  I have reached that conclusion for the following reasons:

a)       All of the assessors and the pre-sentence report writer conclude that you are at a high risk of future offending.  They do so chiefly on the basis of your past offending, but that will usually be a reasonably accurate predictor of future behaviour in the absence of countervailing considerations;

b)        Your offending has continued virtually unabated for a period of some

13 years against a variety of young and adolescent girls.  The ordinary tendency of older men to become less of a risk is not evident in your case;

c)       You have already served a significant finite term of imprisonment in respect of sexual offending of precisely the same character as that for which  you are now  to  be sentenced, so  a finite term has had no deterrent effect at all;

d)Even more significant is the fact that you offended while on parole, while undergoing community based counselling, and at a time when you were subject to close monitoring.  None of these factors seem to have deterred you either;

e)        You appear to me to be quite unable to control your sexual impulses.

That has led you to commit offences in quite remarkable circumstances;   for example, under the eye of your victim’s parents and against your daughter while she was disabled and recovering in hospital.   Many of the community would consider that if you could

not control yourself in circumstances such as those, you are unlikely ever to be able to do so;

f)        You have already completed the Te Piriti programmes, but they seem to have had not the slightest effect;

g)       While in ordinary circumstances it is important to give consideration to the likely impact of an extended supervision order following your release, little reliance can be placed  upon that  consideration here, given your tendency to offend despite relatively close monitoring.

[75]     Preventive detention is not a sentence of life imprisonment.   You will be released when it is appropriate for that to occur.  But there is a clear advantage to the community if a sentence of preventive detention is imposed.   If, following your release, you commit further serious offences, you run the risk of being recalled to prison.  That of itself will be a powerful motivator following your release.

[76]     As was said in R v Bryant CA236/03 16 December 2003:

[23]      …It may be said the offender controls his own destiny.  Successful participation in a 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.

[77]     In other words, your future lies in your own hands.

[78]     For these reasons I have concluded that a sentence of preventive detention must be imposed.

Minimum term

[79]     I return to the question of a minimum term of imprisonment.  Under s 89 of the Sentencing Act a sentence of preventive detention must be accompanied by an order that the offender serve a minimum period of imprisonment which in no case

may be less than five years.  The minimum period of imprisonment imposed must be the longer of:

a)       The minimum period of imprisonment required to reflect the gravity of the offence;  or

b)The minimum period required for the safety of the community in the light of the offender’s age, and the risk posed by that offender to the safety of the community at the time of sentencing.

[80]   Ordinarily, in determining what minimum period of imprisonment it is appropriate to impose, the Court will have regard to the minimum period to be attached to the alternative of a finite term of imprisonment:  R v Johnson [2004] 3

NZLR 29 at [31].

[81]     In this case however, I propose to pick up Mr Mann’s submission about your advanced  age.     Albeit  in  the  context  of  an  argument  that  a  finite  term  of imprisonment would be sufficient, he argues that as you progress into your 70s, there may well be a change in your outlook and indeed in your physical ability to reoffend, to the extent that the protection of the community does not require you to be kept in prison.  A related point made by Mr Mann is that a finite period of imprisonment may give you the added incentive to rehabilitate yourself.  The same goes for a lesser rather than a greater minimum term of imprisonment.

[82]     I propose to accommodate that submission to some extent by imposing the shortest possible minimum period of imprisonment, namely five years.   After that your release will be in the hands of the Parole Board.

[83]     As I noted a little earlier, your future really is in your own hands.

Sentence

[84]     Mr H, on the two charges of attempting to commit sexual violation by rape you are sentenced to preventive detention.  On the two charges of sexual violation by

unlawful sexual connection you are sentenced to five years imprisonment.  On the charge of abduction for the purpose of sexual connection you are sentenced to three years imprisonment.   On the charge of incest  you  are sentenced  to three  years imprisonment.  On the 14 charges of indecent assault you are sentenced in each case to 12 months imprisonment.   On the charge of sexual conduct with a dependent family member, you are sentenced to 18 months imprisonment.  On the two charges of committing an indecent act with intent to offend, you are sentenced in each case to

12 months imprisonment.

[85]     All of these sentences will run concurrently.

[86]     The effect is that you are sentenced to preventive detention with a minimum period of imprisonment of five years.

C J Allan J