R v Hall
[2021] NZHC 3033
•12 October 2021 (Heard at Nelson)
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WAIHARAKEKE ROHE
CRI-2018-006-604
[2021] NZHC 3033
THE QUEEN v
LIONEL KENNETH HALL
Sentencing: 12 October 2021 (Heard at Nelson) Appearances:
J Webber for the Crown
T Bamford and E Riddell for the Defendant
Sentence:
12 October 2021
NOTES ON SENTENCING OF GRICE J
Introduction
[1] Mr Hall, I am now going to sentence you on the 25 charges, relating to sexual violation, that you were found guilty of at the jury trial on 10 June 2021.1
[2] I am going to approach that by first setting out the factual background of the offending. I will then outline the purposes and principles, which I apply when sentencing you today.
1 This decision was delivered orally, and the written version has been edited for grammar, flow and footnotes, but the substance remains unchanged.
R v HALL [2021] NZHC 3033 [12 October 2021]
[3] Sentencing is a two-stage approach. First, I look for comparative cases that counsel have put before me to reach a starting point. In doing that I will also consider the effect of your previous offending for which you were sentenced in 2005. Secondly, I will canvass any personal mitigating or aggravating factors to be taken into account in your case, which might warrant any discount or uplift to the sentence.
[4] I am going to refer to and I take into account the impact of your offending on the victims, from whom we have heard this morning when the victims had their statements read out.
[5] In your case, there is an additional step: consideration of preventive detention. That is a sentence of an indeterminate and not fixed term of imprisonment. That means you may be released on parole but will remain managed by the Department of Corrections for the rest of your life and may be re-called to prison at any time.
Background
Factual background
[6] The facts on which the charges are based took place over a number of years. They can be best summarised by grouping the various charges as they relate to the victims.
(a)In relation to FR, then about 11 or 12, between 18 June 1992 and 31 December 1996, you indecently assaulted her by touching her bottom over her clothing, when she visited your family in Murchison. This occurred in the vicinity of five to 10 occasions.
(b)In relation to AL, aged 15 at the time, you indecently assaulted her in a van while on a driving lesson with you. You touched her breasts and genital area and raped her. She lived with her own family at the time. When she moved into your family home, she received no protection from you. You continued to offend against her. Then aged 16 to 18, she was forced into a threesome with JH, which led to the representative charge of rape.
(c)In relation to MB you sexually abused him when he was aged 15 to 16. One set of representative charges involved sexual violation by unlawful connection between your mouth and MB’s penis and vice versa. A second set of charges – one specific and one representative – involved forcing him into a threesome with JH, where he performed oral sex on her. These also gave rise to the charges in which you were charged as a party to those violations.
(d)In relation to your daughter, Kylie Hall,2 who was then a child, the sexual offending occurred between 22 August 2000 and 14 November 2003. This is considered the lead offence. This involved specific charges of digital penetration and rape, and representative charges of both. These representative charges included times when JH was present and when she was not.
(e)In relation to JH, the offending occurred between 1 September 1993 and 31 December 2003. The offending involved representative charges of rape and sexual violation by unlawful sexual connection by anal rape. Other charges also relate to the forced threesome with MB, in which, as mentioned, MB was forced to perform oral sex on JH. This gave rise to a specific charge and representative charges as well.
Purposes and principles of sentencing
[7] I now turn to the principles and purposes of sentencing. Those purposes and principles are set out in the Sentencing Act 2002 and I must take those into account. The most relevant here are accountability for the harm done to the victims and to the community and making you responsible for your actions. The principles also relevant here include denunciation and deterrence of your conduct.3
[8] Chief among the principles relevant today is protection of the community. This will be the most important consideration when considering whether you will serve a
2 Kylie Hall has requested that her name not be suppressed.
3 Sentencing Act 2002, ss 7(1)(a), (b), (e) and (f).
finite sentence or sentence of preventive detention. You need to be held accountable for the grave and serious harm that you have caused by your offending to the victims, to their whānau, and to the community. However, any sentence imposed must be consistent with sentences imposed in similar cases,4 and be the least restrictive outcome that is appropriate in the circumstances.5 This does not prevent the imposition of preventive detention.
Starting point
Law
[9] Both the Crown and your counsel have given me a number of cases that might be considered as comparisons, in part, in relation to your offending. The guideline judgment that counsel agree upon is the decision in R v AM. It sets out various bands for sexual violation where the lead offence is rape or penile penetration of the mouth or anus or violation involving objects.6 The case sets out the bands of offending depending on the seriousness of the charges.
[10] Your offending, as submitted by both counsel, falls within the band four offending – the most serious of bands. It attracts a starting point of between 16 and 20 years’ imprisonment. The Court of Appeal described band four as:7
[108] The same sorts of factors that place offending towards the higher end of rape band three will apply here but it is likely that the offending in rape band four will involve multiple offending over considerable periods of time rather than single instances of rape.
[109] Perhaps the paradigm case of offending within this band is that of repeated rapes of one or more family members over a period of years as is illustrated by the present case. Offending of this nature, especially that involving children and teenagers will attract starting points at the higher end of this band as indicated by the authorities discussed in R v S (CA64/06)100 and R v Proctor. Gang or pack rape is another situation which is likely to fall within this band.
4 Section 8(e).
5 Section 8(g).
6 R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [90].
7 Footnotes omitted.
[11] Aggravating factors in relation to band three, to which the Court of Appeal was referring, relate to features that are present at a serious level:8
… Rape band three is appropriate for offending which involves two or more of the factors increasing culpability to a high degree, such as a particularly vulnerable victim and serious additional violence, or more than three of those factors to a moderate degree. Particularly cruel, callous or violent single episodes of offending involving rape will fall into this band…
[12]The Court set out various culpability factors.9 I will refer to these below.
[13] The Court also then referred to and summarised cases that fall within band four, noting the shared characteristics of offending occurring over a period of time and involving a breach of trust of vulnerable victims leading to severe impacts on them:10
• R v E (CA433/04):11 When O met his wife, she had a daughter V. The couple subsequently had four children. The wife and the other children were subjected to physical abuse by O over a number of years, and in the case of the children, for most of their lives. O began sexually offending against V1 when she was 11 years old and this culminated in regular rapes when she was aged between 13 and 16. O would physically and verbally abuse her if she protested. V1 became pregnant at age 15 and was forced to have an abortion.
• R v P (CA176/04):12 O offended against his two daughters. The offending against the eldest daughter, V1, occurred over a period of ten years commencing when she was eight. It began with O making her touch his penis, making her perform oral sex on him and digitally penetrating her. The offending progressed to frequent rapes in the last five years. The offending against the younger daughter, V2, involved an assault which occurred when she was eight years old.
• R v T (CA445/03):13 The offending related to O’s young daughters. V1 was aged six or seven when the offending began. It began with indecent assaults and progressed to sexual violation and rape when she was 11 or 12 and continued until she was 19. O was sentenced on the basis he had groomed V1 from the outset. Some years after the offending against V1 ended, O obtained custody of V2 with the intent of repeating the process in relation to V2 which is what occurred. Both victims suffered lasting effects.
8 R v AM, above n 6, at [105].
9 At [34]–[64].
10 At [111]–[112].
11 R v E (CA433/04), 6 April 2005.
12 R v P (CA176/04), 7 October 2004.
13 R v T (CA445/03), 13 May 2004.
Crown submissions
[14] Counsel are in agreement that this offending falls under band four. Defence counsel also agrees with the aggravating/culpability factors to which the Crown point to. These are:
(a)Planning and premeditation: this was evident in the offending against AL. You took an opportunity to isolate her away from her family.
JH in her evidence, said you boasted to her about your offending against MB and that you would continue.
That you called FR into your bedroom suggests the offending there was premeditated. In any case, that offending was of a predatory nature and, as the Court of Appeal in R v AM noted, that type of offending is often opportunistic.
(b)Violence: the offending was carried out over an extensive period of time because of the engendered fear in the family due to your erratic shows of violence. This is how you maintained control over the victims.
(c)Vulnerability of the victims: AL, MB, Kylie Hall and FR were vulnerable because of their ages and the disparity in size and age of these children and young people in relation to you. You were also in a position of power and control over them as a parent or a parental surrogate.
JH was not a child or young person as were the others but she was vulnerable by you by violence, control, verbal and psychological abuse.
(d)Harm to the victims: this is inherent in the offending and is greater given the serious offending and the length of time. Crown also warns against playing down the effects on the victims and notes the comments
of the Court of Appeal cautioning against downplaying the psychological and non-physical harm to victims.14
(e)Scale of offending: the abuse extended over a prolonged period. It involved repeated rape, sexual violation and associated degradation.
Where the guidelines do not adequately recognise the harm of the offending against each victim, the Crown noted that this can be addressed in two ways:15
First, by the recognition that prolonged offending involving multiple victims particularly in the familial context warrants higher starting points in rape band four. Secondly, by application of the provisions in the Sentencing Act relating to cumulative and concurrent sentences and the totality principle. In that context we note that where there are multiple victims of offending (particularly in cases where there have been offences over a number of years against multiple victims), the 20-year maximum for one offence is not the maximum available sentence able to be imposed for the series of offending.
The Crown says the scale of offending here is the single most aggravating factor. It points to you having offended against five victims, four of whom faced repeated, very serious offending, over lengthy periods of time.
(f)Breach of trust: offending within a familial relationship. Particularly that of parent and child, is particularly serious.
In this case, the offending against Kylie Hall is, according to the Crown, perhaps the most serious.
There was also a gross breach of trust in the offending against AL and MB, as they were entrusted into your care as a parental surrogate.
14 R v AM, above n 6, at [44].
15 At [48] (footnotes omitted).
(g)Degree of violation: all victims were subjected to violation at the serious end of scale, except for FR. Such violation included penile penetration of either the mouth, vagina or anus.
[15]The Crown also points to the following cases of band four offending:
W (CA247/2010) v R,16 R v F,17 R v Washer,18 B(CA196/2010) v R,19 and R v Taimo,20
(a)W (CA247/2010) v R: a starting point of 17 years was adopted for offending against the appellant’s stepdaughter, aged 13 at the beginning of the offending, which lasted two and a half years. The offending included rape, digital penetration, sexual connection between her mouth and his genitalia and vice versa. On one occasion, a second victim – the appellant’s own daughter – had swapped beds with the first victim, and the appellant, mistaking her for the first victim, indecently assaulted the second victim. A minimum period of imprisonment (MPI) of nine years was imposed.
(b)R v F: A starting point of 19 and a half years’ imprisonment, with an MPI of 50 per cent, was imposed for 36 charges of sexual offending against F’s daughter. They included specific and representative charges of rape and sexual violation by unlawful connection. The victim was aged between 10 to 11 when the offending began, running away and reporting it to police aged 25. F was controlling and coercive and became violent when the victim resisted. The victim impact was extensive, and the Court took this into account weighing heavily the victim’s vulnerability.
(c)R v Washer: a starting point of 19 years was adopted for 13 representative charges relating to sexual conduct with a girl under 12, sexual conduct with a person under 16, and sexual violation by
16 W (CA247/2010) v R [2010] NZCA 561.
17 R v F [2018] NZHC 1313.
18 R v Washer [2017] NZHC 1683.
19 B(CA196/2010) v R [2011] NZCA 654.
20 R v Taimo [2019] NZCA 427.
unlawful sexual connection. The victim was Mr Washer’s stepdaughter, aged between nine and 14 over the course of the offending. The offending involved performing oral sex, penile penetration of her anus and rape. He admitted some of the offending and denied other charges before pleading guilty to all charges. After the mitigating discounts, the end sentence was 14 years’ imprisonment, with an MPI of eight years.
(d)B (CA196/2010) v R: the Court of Appeal upheld a sentence of 19 years’ imprisonment, based on a 21-year starting point, imposed on a father for 12 counts of sexually abusing his three youngest children repeatedly between 2001 and 2008. Representative charges of rape, anal intercourse and oral sexual connection, as well as sexual violation by digital penetration and indecency, against all three victims were involved. Although the sentencing Judge had not followed the R v AM (CA27/2009) methodology, the Court concluded that her Honour had not been wrong to adopt the 21-year starting point. In doing so, the Court noted the scale and duration of the offending, the number of victims, their vulnerability, the breach of trust and the harm done to them.
(e)R v Taimo: the Court of Appeal upheld the sentence of 22 years (with a starting point of 23 years). The appeal was brought by the Crown seeking preventive detention after the respondent was convicted of 95 charges (52 of which were representative) of sexual offending against 17 boys over 30 years. The offending included sexual violation by unlawful sexual connection, and involved mutual masturbation, mutual oral sex and anal sex. The offending occurred almost daily for periods of months or years. The offending took place through a school and rugby club, with the boys often spending nights at the respondent’s home. Preventive detention was not imposed due to age and the health of the respondent.
[16] The Crown submits that the offending falls at the upper end of rape band four. It refers to the similarities with B(CA196/2010) v R. This is due to the offending spanning a period of years, the presence of multiple victims, the rape of children, offending against victims in the presence of other victims and forced sexual activity between victims. Additionally, the Crown submits there were threats of violence, coercion and control, with actual violence against MB and JH and gross breach of trust.
[17] In relation to those cases, the Crown says your offending is less serious than in Taimo, which involved 17 victims over 30 years, and also less serious than in B(CA196/2010) v R, which involved children as young as five years’ old. The Crown says the most similar offending is R v F, although that involved only one victim. In that case, the victim was aged 10 to 11, around the same age as Kylie Hall, when the offending commenced.
[18] The Crown concludes that an appropriate starting point is in the range of 19 to 20 years’ imprisonment.
Defence submissions
[19] In response, your counsel notes the following band four cases as summarised and cited by the Court of Appeal in F (CA844/2013) v R:21
[41] In T (CA221/2011) v R this Court dismissed an appeal against a sentence of 18 years’ imprisonment imposed for offending by a father over a two year period against a daughter aged between 12 and 14, and offending against her younger sister over a lesser period. The offending against the older daughter involved repeated rape, sexual violation and indecent assault. The offending against the younger daughter comprised two counts of unlawful sexual connection and a representative charge of doing an indecent act. The sentencing Judge had identified a starting point of 19 years, and reduced it by one year on account of previous good behaviour.
[42][The Court summarised B(CA196/2010) v R, as referred to above.]
[43] In W (CA247/2010) v R this Court allowed an appeal against a sentence of 18 years’ imprisonment imposed on a father for rape and unlawful sexual connection (offender’s penis/victim’s mouth and digital penetration) of his foster daughter over a three year period, and for one count of indecency involving his own daughter. The Judge in the District Court determined the
21 F (CA844/2013) v R [2014] NZCA 390 at [41]–[45] (footnotes omitted).
offending sat at the middle of rape band four. This Court did not agree that the case was, as the Crown submitted, a paradigm example of band four offending: the offending was principally against one victim and that beyond the violence inherent in the offending itself, it did not involve additional violence. The case was within the bottom half of band four, namely 17 years, and this Court reduced the District Court sentence by one year. We observed that we did not consider an adjustment of that magnitude to be minor.
[44] In Roberson v R this Court upheld an 18 year sentence of imprisonment, and a minimum period of imprisonment of 10 years, following conviction after trial for sexual offending over an 11 year period (albeit not continuously) against four young children. A starting point of 16 years was adopted for representative charges of rape against two very young girls over a seven month period (lower end of rape band four), with a two year uplift for the less serious, and less frequent, offending against the other complainants (a single instance of upper end rape band two (unlawful sexual connection) and three specific indecency charges). The starting point of 16 years for the rape offending was appropriate and the two year uplift was justified.
[45] In H (CA123/2012) v R this Court dismissed an appeal against a sentence of 12 years’ imprisonment, based on a 17 year starting point, for offending by a father against his daughter when she was between nine and 13 years old, including rape on more than 10 occasions and more frequent indecent assaults and digital vaginal penetration. In upholding that 17 year starting point, this Court concluded the offending was an instance of the paradigm case of band four offending, which could have attracted a starting point at the high end of rape band four rather than the lower end as adopted by the Judge.
[20] Your counsel also cites the case of R v A in which a 17 and a half year starting point was adopted for sexual and violent offending against the defendant’s four daughters over a period of two years.22 The offending involved sexually assaulting his 14-year-old daughter on multiple occasions, and up to twice a day, with threats of physical violence when she resisted. The offending often occurred at night, and involved penile and digital penetration of her mouth, vagina and anus. He sexually assaulted his 12-year-old daughter about three or four times a month, offending at night while everyone was asleep. The offending involved sitting her on his erect penis and forcing her to perform oral sex. On one occasion, he attempted to rape her in the shower and threatened to kill her if she told anyone. On one occasion the defendant assaulted both daughters, in which weapons – including a belt and extension cord – were used. He also physically assaulted his other two daughters, aged four and eight years’ old.
22 R v A [2018] NZHC 2024.
[21] Your counsel says the victims of the sexual offending were of a similar age to Kylie Hall, although the frequency, extent of offending and range of sexual acts in this case were far greater. Nonetheless, the defendant acted in a similar way to you, even though it was your sons and JH who largely bore the brunt of your violence, rather than the younger victims. The atmosphere that that violence engendered in your house, however, affected all the victims and caused them to fear you.
Analysis
[22] Since R v AM, and as noted by the Court of Appeal in F(CA844/2013) v R, sentences for band four offending have attracted starting points of between 17 and 21 years’ imprisonment.
[23] Cases like B (CA196/2010) v R and Taimo represent even more serious offending than the present. The other cases noted by the Court of Appeal in F (CA844/2013) v R attracted starting points lower than 19 years’ imprisonment.
[24] I note the similarity of the present offending to R v F, though do note there was a single victim in that case, who suffered violence and offending that was extremely prolonged, being over some 15 years.
[25] I consider the offending in this case to be more serious than that in R v A. In this case, in particular, there is an added depravity in the forcing of victims to engage with each other as well as the systemic coercion of multiple family members, including JH.
Victim impact reports
[26] I have already welcomed the victims here today. The effects of the offending on them were painted vividly in the victim impact statements, some of which we have recently heard and all of which I have read. It is clear that the effects on their lives of your unremitting abuse while you had them under your control has been pervasive and traumatic for them. Some have spoken of the mental and emotional toll, experiencing PTSD, anxiety and panic attacks. Some have spoken of the blame. Many spoke of the fear they had of you.
[27] The harm suffered by the victims cannot be overstated. Those who were under your control for longer periods of time continue to suffer from the psychological effects. The results of what you did to them have influenced their ability to enjoy their lives properly and to have proper and lasting relationships. Those effects have rippled through affecting their partners and families. In at least one case, to devastating effect on the children of that victim. All the victims have trust issues.
[28] They have all tried to overcome the effects of the offending and continue to do so. It is a credit to them all that they have risen above it, and most importantly they brought the truth to light.
[29] All of the victims consider you should be appropriately punished but whatever sentence I impose nothing will undo what you did to them and the years in which they have battled with the consequences to them of your behaviour. A sentence will never reflect or remedy that harm.
[30] In my view the starting point in this case should be one of 20 years’ imprisonment.
Previous offending
[31] Both counsel considered that the appropriate approach to factoring in your previous offending was by considering the global effect of the terms of imprisonment. You were convicted of offending against children in 2005. That was after the cessation of the present offending in 2003. The 2005 offending was also against children. It was significant but, nevertheless, less serious than the present offending. It indicates and reinforces a pattern of significant sexual offending over a period of years.
[32] As Mr Webber for the Crown suggested, it may be more appropriate to look at the whole of the terms of imprisonment imposed, to include the five and a half years’ imprisonment imposed in relation to the 2005 convictions. Then to make a totality adjustment having looked at that whole.
[33] As Mr Bamford pointed out, you have served a good part of the five and a half years’ term of imprisonment. Mr Bamford also agreed that the suggested approach
may be appropriate. He helpfully referred to the decision of R v Tatham where Lang J undertook a similar exercise in relation to an offender who was partway through serving an earlier sentence.23 I therefore have adopted that as the approach here.
[34] The approach is necessarily more high level than that undertaken by Lang J in Tatham. His Honour had all the sentencing information on the first charge before him. In this case, as I have noted, the 2005 offending is far less serious than the offending before me.
[35] Considering the whole of the offending I would have been looking at a total of 23 to 24 years’ imprisonment as appropriate. However, standing back and looking at totality, and taking into account that Mr Hall has served at least part of the five and a half years, I consider the appropriate end sentence for the offending is 19 years.
[36] As the Crown pointed out there may be many approaches to reaching the end point. It is not the technical route that is important, but the end point and I consider the starting point, before I go on to consider personal aggravating and mitigating factors, is 19 years.
Personal factors
[37] Given the approach I have taken to the sentencing and taking into account the 2005 convictions and sentence, there is no need to consider any uplift for previous offending of course. However, it appears that despite the 2005 sentence of imprisonment, you refused assistance to address the behaviours that caused the offending in the first place.
[38] The Crown submits that there is not a hint of contrition, remorse, or empathy. You have, according to the Crown, responded to the allegations of the victims with insults and denigration toward them. That was also apparent from some of your comments in the DVD police interview of you, which was shown during the trial.
23 R v Tatham [2021] NZHC 815 at [28]–[31].
[39] There is no doubt that, for reasons unrelated to the offending, you are now in poor health and dependant on nursing assistance for the tasks of daily living. In relation to discounts to recognise serious physical infirmity and a poor prognosis of life expectancy, the Court of Appeal in Hastie v R has noted a range of cases where discounts ranged from 14 to 33 per cent, depending on the severity of the health condition. The lower discounts having been given for ill-health where appellants had numerous cardiac impairments. The higher discounts were given in cases where prognosis of death was within two to three years.24
[40] In this case, the Crown notes the lack of detailed information it has regarding your medical conditions or prognosis. However, it also submits that the main relevance of that relates to the issue of whether you are given a finite sentence or preventive detention. If preventive detention is not imposed due to the fact of your chronic ill-health – which is likely to be the only reason such a sentence is not imposed
– then, the Crown says, an additional discount off the finite sentence for ill-health is not justified. In any case, the Crown notes that you are unlikely to outlive a very lengthy term of imprisonment.
[41] Mr Bamford submits that the previous offending, as it took place during the current offending, does not warrant an uplift. I have accepted that submission.
[42] Additionally, Mr Bamford urges that there be a discount for your present disabilities and health. He also opposes the imposition of the preventive detention. Mr Bamford suggests a discount of 15 per cent for your present disability and health.
[43] Turning to consider those factors. I agree with the Crown submission that your ill health bears heavily on the choice between a finite sentence and the imposition of preventive detention. However, that should not preclude a discount, as a relevant personal factor, which could be applied in this case. I consider that is not a matter of double counting. Rather, there is a practical recognition of your disability in relation to whether a finite sentence or a preventive detention sentence is imposed. At the same time, it is not inconsistent to acknowledge the disabilities by recognising some discount. But, in my view it should be at the very lower end of the discounts available.
24 Hastie v R [2011] NZCA 498 at [40].
[44] In the present position I would reduce the overall sentence by 10 per cent to take into account your present disabilities.
[45]This results in an end sentence of approximately 17 years’ imprisonment.
[46] This is not a mathematical exercise, but it recognises your present circumstances.
Minimum period of imprisonment
[47] The Crown submits that this case clearly calls for a minimum period of imprisonment (MPI) to be imposed, and that an MPI in excess of 50 per cent – and up to 60 per cent – is appropriate.
[48] Your counsel submits that the purpose of an MPI, given the protection of the community is unlikely to be a priority given the facts outlined in Ms Daly’s report. The purpose, he submits, would be solely accountability and denouncing of your actions and deterrence. Given your ill health, Mr Bamford submits a humane response would be not to impose an MPI, and to let the Parole Board decide your release. He also says that as you are unlikely to be able to receive treatment, any release would likely be for a deterioration in your health.
[49] Given the nature of the offending, the period of imprisonment under s 84 of the Parole Act 2002, which would be likely applied to the 17-year finite sentence imposed, in my view is insufficient to hold you accountable and denounce your conduct. I also note the comments in R v Washer that for prolonged sexual offending, MPIs longer than 50 per cent are common, with MPIs of 50 per cent imposed where personal mitigating factors are present.25
[50] In the circumstances I consider an MPI of 10 years’ imprisonment is appropriate.
25 R v Washer, above n 18, at fn 10.
Preventive detention
Law
[51] Preventive detention serves to protect the community from offenders who pose significant and ongoing risks to safety. Section 87 of the Sentencing Act sets out under what circumstances preventive detention sentences can apply and the five considerations this Court must take into account:
87 Sentence of preventive detention
(1)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.
(2)This section applies if—
(a)a person is convicted of a qualifying sexual or violent offence (as that term is defined in subsection (5)); and
(b)the person was 18 years of age or over at the time of committing the offence; and
(c)the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date (as specified in subpart 3 of Part 1 of the Parole Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.
(3)The High Court may, on the application of the prosecutor or on its own motion, impose a sentence of preventive detention on the offender.
(4)When considering whether to impose a sentence of preventive detention, the court must take into account—
(a)any pattern of serious offending disclosed by the offender’s history; and
(b)the seriousness of the harm to the community caused by the offending; and
(c)information indicating a tendency to commit serious offences in future; and
(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 lengthy determinate sentence is preferable if this provides adequate protection for society.
(5)In this section and in sections 88 and 90, qualifying sexual or violent offence means—
(a)a sexual crime under Part 7 of the Crimes Act 1961 punishable by 7 or more years’ imprisonment; and includes a crime under section 144A or section 144C of that Act; or
(b)an offence against any of sections 171, 173 to 176, 188, 189(1), 191, 198 to 199, 208 to 210, 234, 235, or 236 of the Crimes Act 1961.
[52] In relation to the jurisdiction of this Court to impose preventive detention, I note that most of the charges pre-date the Sentencing Act, with the exceptions being the sexual violation representative charges relating to Kylie Hall and two charges relating to JH which extend into 2003. If this Court is satisfied that at least one of those acts occurred after 30 June 2002, then there will be a qualifying offence under s 87.
[53] Even if this is not the case, the Court may still impose preventive detention. Under s 153, s 87 applies to specified offences committed before the Act’s commencement date, which for preventive detention would have been imposed under the governing statute at that time: s 75 of the Criminal Justice Act 1985 (CJA).
[54] Under that Act, and subject to provisions of s 75 of the Act, preventive detention may be imposed if the Court “is satisfied that it is expedient for the protection of the public that an offender to whom this section applies should be detained in custody for a substantial period”. Similar to s 87, the section also requires that the Court is “satisfied that there is a substantial risk that the offender will commit a specific offence upon release”,26 having regard to a psychiatric report on the offender.
[55] You qualify under s 75, given you were over 21 years at the time of the offending, and were convicted of a qualifying offence under s 128(1) of the Crimes Act 1961.
[56] For the purpose of this sentencing, s 75 of the CJA and s 87 of the Sentencing Act are sufficiently similar, if s 75 is the operative section, to discuss the imposition of preventive detention with reference to the s 87 factors.27
26 Criminal Justice Act 1985, s 75(3A).
27 This approach has been taken in R v Matakatea HC Te Whanganui-a-Tara | Wellington
Crown submissions
[57] First, the Crown says that there has been a pattern of serious offending, based on the charges and your previous offending in the same decade.
[58] Secondly, the seriousness of the harm is evident in the victim impact statements. Insofar as the wide effects on the community are concerned, it noted that in Matakatea, the Judge observed that such offending strikes at the heart of the community by the very fact that children are not safe from sexual predation in their own homes.28
[59] Thirdly, in relation to information regarding the tendency to commit serious offences in the future, the Crown noted the pre-sentence report’s observation that your risks of harm and re-offending are assessed as being very high and high, respectively. The most recent reports by two psychologists for the purpose of this sentencing and consideration of preventive detention both underscore the risk you continue to present as a sexual predator.
[60] Dr Brindley is a registered clinical psychologist and neuropsychologist; she is also a forensic psychologist with extensive experience in the mental health and sexual and violent offending behaviour psychology and treatment.
[61] She reports a number of relevant risk factors she identified which apply to you.29 These include sexual deviance, relationship problems, including a risk of harmful behaviours in romantic and family relationships, chronic sexual offending, diverse sexual offending, physical and psychological coercion in sexual offending, escalation in sexual offending, and extreme minimisation or denial of sexual offending. Her conclusion is that you have a high risk of sexual violence recidivism.
[62] Ms Daly takes a similar view.30 Although you have physical limitations now, staff at the retirement home are wary of your behaviour. You have continued to
CRI-2009-085-4227, 23 April 2010 at [10]; R v Ngawhika HC Tāmaki Makaurau | Auckland
CRI-2010-092-6946, 12 November 2010 at [43]; and R v Bond [2016] NZHC 2561 at [44].
28 R v Matakatea, above n 27, at [13].
29 The report, pursuant to s 88 of the Sentencing Act 2002, is dated 27 August 2021.
30 The report, also pursuant to s 88 of the Sentencing Act 2002, is dated 1 September 2021.
demonstrate sexually inappropriate and harmful behaviours, which pose a high risk to the staff, particularly if you consider them vulnerable.
[63] Fourth, the Crown notes there is an absence, or failure of, effort on your part to address the causes of your offending. You maintained your innocence throughout the interview with the pre-sentence report writer, claiming you were falsely accused. Dr Brindley noted that you had not attended any programme to address your offending behaviour and appeared unmotivated to address the causes of your offending. The denial of previous and current offending present barriers to your developing insight into your offending and so reduce the risk to the public.
[64] Fifth, the Crown notes that the main issue is whether preventive detention is appropriate given your age and state of health. The Crown submits that as long as you are physically able to act at any level you will present a risk. Dr Brindley had found that your lack of internal social adjustment and function means that external measures to control your behaviour are the most effective options.
[65] The Crown noted that the factors in Taimo, where preventive detention was not imposed, applied to this case. There, the offender, then aged 56, would have been 78 at the sentence expiry. He did not enjoy good health, which was likely to deteriorate further. The Court there noted that preventive detention was most often imposed on defendants in their 40s and 50s.
Defence submissions
[66] Mr Bamford, on your behalf, raised concerns about Dr Brindley’s report. Ms Daly, the other psychologist, is a registered clinical psychologist with expertise and experience in relation to offenders. Her meetings with Mr Hall took place before hospitalisation in July this year.
[67] Mr Bamford notes certain omissions from Dr Brindley’s report. These concerned your worsening dementia and the likely impact of your cognitive state and likely cognitive decline, as well as the effect of your physical condition on any treatment for your risk behaviours, commentary on external management of risk you pose, and the practical realities of your time in care.
[68] Your counsel emphasises that the issue is the likelihood of your committing a qualifying offence, given the environment in which you must live.
[69] He submits that the retirement village has managed the risk you have posed, by appropriate staffing arrangements, including having no contact with young women. He further submitted that it would be likely that you would be housed in some sort of unit that would have the appropriate staff with the appropriate skills to ensure you were not given the opportunity for any further offending. You now have limited mobility and a deteriorating cardiovascular condition. There has been no proven offending since 2003, although your counsel acknowledges there was an allegation of indecent assault made by rest home staff in 2018. You have had no visitors, nor contact with young people, and none of your family have visited.
[70] Based on these limitations and your age, your counsel submits that the s 87(2)(d) test is not made out, and that a finite sentence achieves the required purposes and principles of sentencing.
Analysis
[71] This Court has jurisdiction to impose preventive detention. Either s 75 of the CJA or s 87 of the Sentencing Act applies. The question is whether such a sentence should be imposed in your case.
[72] Both recent psychological reports report a risk of re-offending. The environment to which you would be released is relevant. As noted by Ms Daly, your increased age, lack of access to children, and deteriorating mental condition present protective factors. However, there is also little prospect of rehabilitation, given the diagnosis of vascular dementia which is likely to progress over time. Even if you were to acknowledge your offending, Ms Daly suggests it is unlikely you could be effectively treated, meaning that external management of risk is the “sole pathway”. This turns on how effective the care would be at a residential care home, and whether staffing arrangements could be made to ensure the risk is not one in which you are likely to commit a specified offence.
[73] Additionally, I take note that there has been a pattern of serious offending, but that such offending has not taken place over the past two decades, perhaps due to more external supervision, as was suggested by Ms Daly following your imprisonment and monitoring following the 2005 convictions. Given the pattern of serious offending, the harm to the community was, and continues to be, serious. Furthermore, you deny the offending and refuse to address the causes of that offending.
[74] On the other hand, I accept Mr Bamford’s submissions as to your mental health and the practical restraints that that imposes. You are currently 72 years old, your physical and mental health are steadily deteriorating and they will not improve. Practically you will never be in a position to offend as you have before, nevertheless, you do pose some risk of other types of indecent offending.
[75] Having considered the five factors stated under s 87, and both reports, in the circumstances I am not satisfied that you are likely to commit a qualifying sexual or violent offence after the expiry of your sentence given the practical circumstances.
[76]I decline to impose a sentence of preventive detention.
Name suppression
[77] You have had interim name suppression to date. The complainants’ names are suppressed by law, being your victims under s 203 of the Criminal Procedure Act 2011.
[78] Under a two-stage analysis, I must first look at the threshold requirement under the Act, which would be met, as the victims related to you would likely be identified.31 The second stage in the exercise of the Court’s discretion on suppression is that the views of the complainants should be taken into account.32 That is not determinative but, in this case, all the relevant victims have expressed they do not wish that your name suppression continue. All the victims are now aged over 18 years and I take that into account in the circumstances. I have heard from each of those victims and consider their wishes do weigh in this case.
31 Robertson v Police [2015] NZCA 7 at [39]–[41].
32 For permanent orders of name suppression for a defendant, the views of the victims must be taken into account under s 200(6) of the Criminal Procedure Act 2011.
[79] On this basis I exercise my discretion and decline to grant permanent name suppression.
Result
[80] Mr Hall, I impose a finite sentence of 17 years’ imprisonment with an MPI of 10 years. I decline to impose a sentence of preventive detention.
[81] I also defer the start date of your imprisonment. This to enable the Department of Corrections to ensure transfer arrangements are put in place, from your retirement home to the prison, taking into account the present COVID-19 alert level requirements.
[82] Your sentence is to commence on Friday 22 October. Until then you are remanded on bail under the existing conditions including your place of residence. On that date you will surrender yourself to the Corrections officers to commence your sentence.
Grice J
Solicitors:
Crown Solicitor, Whakatū | Nelson, for the Crown. Bamford Law, Whakatū | Nelson, for the Defendant.
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