R v Hetherington

[2013] NZHC 3393

REDACTED VERSION

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

PUBLICATION OF DETAILS OF OFFENDING PROHIBITED. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2011-029-000341 [2013] NZHC 3393

THE QUEEN

v

LUKE GRAHAM HETHERINGTON

Hearing:                   16 December 2013

Appearances:           A Patterson for Crown

M B Dodds for Accused

Judgment:                16 December 2013

SENTENCING NOTES OF ANDREWS J

Solicitors/Counsel:

Crown Solicitor, Whangarei

M B Dodds, Kerikeri

R v HETHERINGTON [2013] NZHC 3393 [16 December 2013]

Introduction

[1]      Mr Hetherington you appear for sentencing today having been convicted on

30 May 2013, following a jury trial in the District Court at Kaikohe, on one charge of rape, two charges of sexual violation by unlawful sexual connection, one charge of indecent assault on a young person, and one charge of threatening to kill.  The Judge who presided over the trial declined jurisdiction to sentence you, and your sentencing has therefore been removed into this Court.

[2]      Sentences of up to 20 years imprisonment may be imposed on the convictions for rape and sexual violation.  For the charges of indecent assault and threatening to kill, the maximum sentence available is seven years imprisonment.   However, in certain circumstances, the court may impose a sentence of preventive detention, which is an indeterminate sentence. As you know in this case the Crown has applied for a sentence of preventive detention and that is on the grounds that such a sentence is necessary in order to protect the community from you.  I have to decide, today, whether to sentence you to a finite term of imprisonment – that is, imprisonment for a defined period of time – or whether an indefinite term of imprisonment is required to protect the community from you.

Facts of the offending

[3]      Your offending occurred on the morning of Sunday, 20 March 2011, while you  and  your partner  were staying at  the victim’s parent’s  home. The previous evening, you and your partner had been at a party not far from the victim’s home and the victim’s mother and stepfather were there too.

[4]      At about 2:00 am the victim’s parents left the party to go home.  They met you and your partner, when you were looking for the address where you had planned to sleep.   The victim’s parents invited you and your partner back to their house instead.   At the victim’s house you and the other adults continued to drink and socialise until the early hours of the morning.   The victim and her brother were asleep when you got to the house.

[5]      Later that morning, sometime between half past six and half past eight, the victim got up and went to watch TV.   She was 13 years old at the time, and she suffers from a significant intellectual disability.   Her mental age is much younger than her chronological age.   At the time, you were in the lounge, drinking and smoking.  You approached the victim and began to talk to her, first of all outside the house, where you talked about making babies with her, but you then took the victim inside the house and into her bedroom.[  SUPPRESSED]  This resulted in the charge of indecent assault.   [SUPPRESSED]   This resulted in the first charge of sexual violation.  [SUPPRESSED]  This is the second charge of sexual violation.  You then raped the victim.  After that, you told the victim that if she told anyone you would kill her.

[6]      When the other adults in the house woke up the victim told her parents that you had done rude things to her.  They contacted the Police.  DNA from a sample taken from the victim’s underwear strongly supported it having originated from you.

[7]      The jury found you guilty on all five charges on 30 May 2013, following an eight day trial in the District Court in Kaikohe.  This was a re-trial, as the jury had been unable to reach a verdict in an earlier trial.

Victim impact statements

[8]      You have heard three victim impact statements being read out in Court today. One  was  from  your  victim,  one  was  from  her  mother,  and  one  was  from  her stepfather.  I am not going to repeat what they said, they all spoke eloquently and with emotion about the impact of your offending on each of them.

[9]      The victim is now 16 years old.  As I said earlier, she was 13 years old when the offending took place.  She used to trust people, but now she only trusts people in her immediate family and her teacher.  She has found it difficult to understand the offending, and the emotions she feels.  It is only now that she is beginning to be able to talk about the offending with her parents.

[10]     The victim’s mother explains that the offending has changed her life.   She feels anger towards you. Your offending has drained her life and placed strain on her own relationship.  The whole process has been taxing: there have been two trials, adjournments, and now sentencing some 28 months after the offending.

[11]     The victim now tends to show over-sexualised behaviour, her friends are not allowed to sleep over as much, and only now is she beginning to talk about the offending.  It cost the victim’s parents financially.  It has cost in terms of trying to give the victim a new start by renovating her room and buying new bedding and furniture.

[12]     The victim’s stepfather carries guilt, as a result of having allowed you to stay in the home. As he said, many people have been affected by your offending, and the effects will continue to exist into the future.

Pre-sentence report

[13]     At this stage I would normally refer to a pre-sentence report, which would give me important information about you, about your background, and your response to the charges.   However, you refused to be interviewed.   I am aware from other reports that you are now 47, and you are of Canadian and European descent.  You have not had long term employment, and you have moved frequently, doing seasonal work.

Other relevant reports

[14]     I have also received two further reports, one from Dr Skipworth, a forensic psychiatrist, and one from Ms Sharma,  a clinical psychologist.   The Court had directed that these reports be prepared.   Again, however, you refused to be interviewed.  Although Judge McDonald ordered, in September, that the reports be, in his words, completed I have not received any further reports.  I do note however, that both Dr Skipworth and Ms Sharma had the opportunity to refer to earlier reports, and I will refer later to what they say.

Sentencing process

[15]     For your sentencing, I must first decide what would be the appropriate term of imprisonment for the offending.   Then I go on to consider whether that will provide adequate protection for society, and whether a sentence of preventive detention is required.

[16]     The first step, then, is to establish a starting point for sentencing.   In your case, the starting point is the sentence that would be imposed for the charge of rape, as that is the most serious of the charges on which you have been convicted.  The second step is to take that starting point and decide what adjustments have to be made, to account for all the charges on which you were convicted, and any matters that make your offending more or less serious.  I also consider any matters that relate to you, personally, because these may also lead me to adjust your final sentence.

[17]     I have to take into account the purposes and principles of sentencing.  With respect to the purposes of sentencing, I have to hold you accountable.  That means to make you responsible for your offending.  I have to consider deterrence – of you and others – and protection of the community.  I also have to denounce your offending. What that means is that you must understand that your offending is completely unacceptable.  At the same time, the purpose of sentencing any offender is to help the offender to get back into the community and to be a useful member of it.

[18]     In your case the relevant principles of sentencing that I take into account are to  assess  the  gravity  of  your  offending,  including  your  culpability,  and  the seriousness of your offending in comparison with other types of offences.   I must keep in mind that sentences should generally be consistent for similar offending.  I also take into account the information that I have about the effect of your offending on the victim.  There is a general principle that I should impose the least restrictive sentence that is appropriate in the circumstances.

Starting point

[19]     Now I come back to the starting point.  As I said earlier, I set the starting point by reference to the rape conviction.  I will refer to the sentencing guidelines

given by the Court of Appeal in its judgment in R v AM, where the Court listed factors which, if present, will increase the seriousness of the offending, and sets out four bands of starting points for rape sentences.1   It is clear from the submissions that I have heard this morning that it is the second and third bands which must be considered.

[20]     The  second  band  is  for  offending  where  the  scale  of  the  offending  is moderate, and there is a moderate level of violence and premeditation.  This band covers offending involving a vulnerable victim, and is appropriate where there are two or three of the factors increasing culpability to a moderate degree.  The starting point in band two is between seven and 13 years imprisonment. The third band is for offending which has two or more features which increase its seriousness to a high degree, such as a particularly vulnerable victim, and serious additional violence, or more than three of the features, to a moderate degree.   In band three, the starting point is 12 to 18 years imprisonment.

[21]     Ms Patterson submitted that your offending falls at the middle of rape band three because there are two features present to a serious level, and four features present  to  a  moderate  degree.     The  serious  factors  are  the  victim’s  special vulnerability and the harm you caused to the victim and her family.  The harm was increased  because of the victim’s  disability.   The factors  present  to  a moderate degree, Ms Patterson submitted, are a breach of trust (as you were present as a guest in the victim’s house), violence (in particular the threat to kill the victim), the extent of the offending leading up to the rape, and premeditation.  Regarding premeditation, Ms Patterson submitted that as a sexual predator, your offending could not be seen as totally opportunistic.  Taking those matters into account Ms Patterson submitted that the starting point should be between 14 and 16 years imprisonment.

[22]     On your behalf, Mr Dodds accepted that the victim was vulnerable, and that she had suffered emotional, but not physical, harm.  However, he submitted that your offending was not premeditated (or only to a slight degree),   that there was no violence involved beyond that which is intrinsic to the offending, that your offending

was in substance a single incident, and that there was no breach of trust.

1      R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [90]–[112].

[23]     Mr Dodds submitted that your offending falls within the higher end of the band two offending, and that the starting point should be around 11 years imprisonment.

[24]     The stark difference between the starting points submitted by counsel arises from counsel’s different views on the factors are said to make your offending more serious.  I turn to consider those factors.

[25]     First, and most significant, is the victim’s vulnerability.  The victim was 13 years old, she suffers from a significant intellectual disability, and her mental age is much  younger  than  her  chronological  age.    In  R  v  AM  the  Court  of  Appeal considered that the extreme youth of the victim would be a factor, as well as mental impairment of a victim, when assessing vulnerability.2    I find that the victim was particularly vulnerable due to her disability and I find that you took advantage of that vulnerability.  At only 13, any victim would be seen as being vulnerable, but the fact that  your  victim  had  a  much  more  limited  mental  age  seriously  increased  this

vulnerability and to a significant degree.   I consider this to be a very serious aggravating factor.

[26]     Secondly, the victim suffered emotional harm.  She is only now speaking to her parents about the offending.   Her social interactions have decreased and she trusts very few people.  It appears however that no serious physical harm occurred. But, in cases of sexual offending cases against young girls, harm is seen as being “ordinarily serious and having lasting impacts.”3    I also note the comments by the victim’s parents, that they have been unable to talk to the victim about the offending since it occurred because they could not risk affecting the evidence she gave.  They were unable to talk to her until after the trials had been completed.   That is also relevant to considering the emotional harm.

[27]     In R v AM, the Court of Appeal acknowledged that harm is inherent in the offending and that the more harmful the offending, the more serious it is.  The Court

of Appeal accepted that emotional harm must be considered as an important aspect,

2      R v AM, above n 1, at [42]–[43].

3      R v Woodhouse [2013] NZHC 610 at [29].

and that includes the impact on people other than the victim.  In this case, as I know from the victim impact statement, the victim’s mother has undergone counselling, and her stepfather continues to feel guilty.  I conclude that the harm caused by your offending must be considered at least moderately serious.

[28]     I next consider Ms Patterson’s submission that your offending has to be seen as premeditated – in the sense that as a sexual predator, with a history of taking advantage of opportunities presented to you, you are more likely to offend in an opportunistic manner.   Again to refer to R v AM, the Court of Appeal said that “offenders who show predatory sexual behaviour may be more likely to offend in an

opportunistic manner.  They should not be treated as lacking premeditation.”4    Ms

Patterson based her submission on your previous offending against young girls.  Mr Dodds submitted that your offending is not properly seen as opportunistic, because you did not manufacture the circumstances.

[29]     This  is  the  third  occasion  on  which  you  have  taken  advantage  of  an opportunity to offend against a young girl.  I consider this to be more than merely opportunistic.  You actively approached the victim, you isolated her, and you forced her into her bedroom and raped her.  This behaviour closely resembles your previous offending.  I consider that your offending is properly described as predatory and that premeditation must be considered as a moderate factor.

[30]     The next factor is violence.   Ms Patterson submitted that there is violence, whereas Mr Dodds submitted that the violence does not go beyond the violence which is inherent in the offending.  Where the violence is more than mild, it will be seen as increasing the seriousness of the offending.5

[31]     But violence is not restricted to physical violence.  It also includes threats of violence.6   Here  you  threatened  to  kill  the  victim  if  she  told  anyone.    While threatening to kill anyone is a serious factor, when someone has been raped and is as vulnerable as your victim was, such a threat will have a profound effect, especially

on a young girl.   This is made clear by s 9A of the Sentencing Act 2002 which

4      R v AM, above n 1, at [37].

5 At [38].

applies in cases involving violence against a child under the age of 14 years.  Under s 9A(2)(d) an aggravating factor is threats made by the offender to prevent the victim reporting the offending.  In this case you told the victim that you would kill her if she told anyone about the rape and abuse.  I consider this to be a moderate factor.

[32]     Next, the scale of your offending.   Where there has been more than one incident, or the offending occurred over a prolonged period of time, this will be a factor increasing the seriousness of the offending.  On the authorities a realistic view must be taken where a number of offences are committed as part and parcel of what is, in substance, a single incident.7     Your offending must be seen as being one extended incident from the first approach outside the house, and leading up to the rape. The scale of the offending is an aggravating factor but it is not a serious one.

[33]     Finally, Ms Patterson submitted that your offending involved a breach of trust, because you were present in the victim’s house as a guest of her parents.  Often trust exists within familial relationships or where a person has assumed some responsibility in relation to the victim.8   However, while I accept that this offending could only have occurred because of the friendship that led to your being invited into the house, I am not able to conclude that being a guest in a house, in itself, leads to a relationship of trust.  Accordingly, I do not count breach of trust as a factor which significantly increases the seriousness of your offending.

[34]     Overall, I find that the victim’s vulnerability is a particularly serious factor, and the harm caused by your offending is also a moderately serious factor, as is threat  of  violence.    Other  factors  should  be  taken  into  account  but  to  a  more moderate degree.

[35]     I said earlier, the second rape band is appropriate when offending involves a vulnerable victim and has two to three of the factors increasing culpability to a moderate degree.9    The third rape band is appropriate when there are two or more

factors which increase culpability to a high degree, or when there are more than three factors present to a moderate to less serious degree.10

[36]     The factors I have identified indicate to me that your offending falls at the top of the second band, where there is in fact an overlap with offending towards the lower end of the third band. This is particularly because of the victim’s vulnerability, the violence involved, and the harm caused by your offending.  Taking all of those factors into account, I have concluded that the starting point for a finite sentence on the rape charge is 11 years and three months imprisonment.

Other offending

[37]     I now turn to consider the other offences on which you were convicted, namely the two charges of sexual violation by unlawful sexual connection, and the charges of indecent assault and threatening to kill.  While I have, as I said earlier, considered your offending as a single incident for the purposes of assessing the scale of your offending, and whether other aggravating factors are present, I briefly go through each offence.

[38]     The first charge of sexual violation by unlawful sexual connection would justify a starting point of three years imprisonment.   The second charge of sexual violation is more serious offending, and would justify a starting point of seven years imprisonment.  The charge of indecent assault would justify a starting point of two years imprisonment, and the charge of threatening to kill would also justify a starting point of two years imprisonment.

[39]     A finite sentence would involve concurrent sentences on all of the charges.  I am required to stand back and assess the totality of your offending, and consider whether the starting point for the rape offending, on its own, will result in a sentence which is appropriate for that totality.   I conclude that a sentence of 11 years three imprisonment would not recognise the seriousness of all of your offending against the victim.  I have concluded that the starting point must be increased by 18 months, to take it to 12 years and nine months imprisonment.   I stress that in making this

adjustment   I  have  not   double-counted   any   of  the   relevant   factors,   or  the circumstances of your offending.

[40]     I must also consider whether an increase is required to take account of the fact that you have previous convictions for similar offending.   In September 1997 you were convicted on one charge of indecent assault on a girl under 12.   You received a sentence of nine months imprisonment, to be served concurrently with another sentence.  In March 2007 you were convicted on three charges of indecent assault on a young girl.  On that occasion you were sentenced to imprisonment for one  year.   A further  increase  to  the  starting  point  for  your  present  sentence  is required, as your continued offending shows that additional deterrence is required, as is additional protection for the community.  I have concluded that the starting point should be further increased by nine months, taking the adjusted starting point to 13 years and six months imprisonment.  I add that I have not taken any of your other previous convictions into account, although I note that you have served a term of nine years of imprisonment on a manslaughter charge.

[41]     At this stage I am required to consider any matters relating to you, personally, that would lead me to apply a reduction to that adjusted starting point.   I have concluded that there are no such matters.   There are no mitigating factors.   You continue to maintain that you are innocent and you forced the victim to undergo the trial.   Therefore the final finite sentence would be 13 years and six months imprisonment.

Preventive detention

[42]     I now go on to consider whether I should order preventive detention.  The purpose of preventive detention is to protect the community from people who pose a significant and ongoing risk to the safety of others.11    Preventive detention is not a sentence of last resort, but it is a protective sentence to be imposed if and when

necessary to do so.12

11     Sentencing Act 2002, s 87(1).

[43]     In your case preventive detention can be ordered in your case, if you have been convicted of a qualifying sexual or violent offence, you were over 18 years of age at the time of committing the offence, and if the Court is satisfied that you are likely to commit another qualifying offence if you are released at the end of a finite sentence.  You have been convicted of qualifying sexual offences, and you were over

18 when you committed them.  I need to consider whether it is likely that you will commit a further qualifying offence and then, if I am satisfied as to that, whether preventive detention is required to protect the community.

[44]     It  is  necessary to  return  now  to  the reports  from  Dr Skipworth  and  Ms

Sharma.

[45]     Dr  Skipworth’s  opinion  was  limited  by  your  refusal  to  discuss  your background and the current offending.  However, Dr Skipworth noted that you have been assessed extensively in the past, and have you have undergone a child sexual offender treatment programme, that was the Te Piriti programme.   Dr Skipworth described the current offending in March 2011 as being a relatively rapid relapse. He regarded the offending as being of concern, due to a number of risk factors being present that have been associated with your previous offending, such as alcohol and victimising vulnerable females.

[46]     Dr Skipworth said that it was impossible for him to reassess your level of risk of re-offending, without relying on earlier assessments.  However, he considered that the earlier assessments are accurate. You were assessed as being at a medium to high risk of reoffending.  Dr Skipworth noted that despite good progress being made in the  treatment  programme  you  did  attend,  the  recent  offending  shows  that  this progress was not transferred into the community setting.   Dr Skipworth also considered that you are not addressing your treatment needs further, as you currently deny any wrongdoing.  From this, Dr Skipworth concluded that you pose at least the same risk of sexual re-offending (that is, medium to high) as had been found in the earlier assessments.  Dr Skipworth expressed concerns about your failure to engage in known risk-reducing strategies.   Dr Skipworth recommended further evaluation and intensive intervention if considered appropriate

[47]     Like Dr Skipworth, Ms Sharma explained that she was unable to interview you, and as a result she also had to rely on previous psychological reports, and other materials.  Ms Sharma discussed your background, drawn from earlier reports.   She recorded that you were adopted when you were two weeks old. The family moved to Canada.  Your parents separated when you were one year old and you were raised by your mother.  You moved back to New Zealand when you were 30, to be closer to your mother, who had returned here nine years earlier. You had claimed that you had had three serious relationships since moving to New Zealand, and you have had other relationships of shorter duration.

[48]     Ms  Sharma  considered  that  you  have  an  entrenched  pattern  of  sexually offending against pre-pubescent and pubescent girls.  All of your sexual offending had  taken  place  while  you  were  intoxicated  and  socialising  with  adults  in  the victims’ parents’ houses.

[49]     Ms Sharma noted that  your  psychosexual development was  marked with early sexual experimentation, creating blurred lines, and sexual promiscuity.   She noted that you did not impress as obtaining fulfilment by conforming to mainstream values, this was characterised by sexual promiscuity and parties.  She expressed the view that your lifestyle showed that your arrested development where you seem to have failed to internalise role and responsibilities of an adult, leading to a predominantly adolescent lifestyle.

[50]     Ms Sharma referred to  a report that  you were allegedly sexually abused yourself, and the victims of your offending are around the age of your own sexual abuse, and when you began sexual experimentation.  Ms Sharma stated that it was likely that you developed an ongoing fixation on these fantasies as an adult, and have replicated them while disinhibited under the influence of alcohol.  She suggested that your actions also indicated a high degree of opportunism and persistent coercion of very vulnerable girls.

[51]     In relation to your risk assessment, Ms Sharma assessed your risk under the

PCL-R rating as 28, which is high.  This score indicates a heightened likelihood for

relevant re-offending.  There are a number of factors which are relevant to your risk of sexual re-offending. These are:

(a)      Sexual deviation: as illustrated by your pattern of offending against pre-pubescent girls;

(b)Substance abuse: all of your prior sexual offending occurred while you were intoxicated;

(c)      Relationship problems: your relationships were marked by a lack of genuine   commitment,   and   the   presence   of   violence,   conflicts, infidelity and instability;

(d)Escalation in severity of sex offending: the offending has escalated from indecent sexual acts to rape and threatening to kill;

(e)       Extreme minimisation and/or denial of sexual offending;

(f)      Your lack of realistic plans: your repeated relapses into sexual and violent offending indicate pervasive failure in devising a suitable, safe and realistic plan after being released back into the community; and finally

(g)Past  non-violent  offences:  your  six  previous  non-violent  offences which indicate the presence of antisocial attitudes and poor impulse control.

[52]     On the Static-99 test, you were assessed as being in the high risk category of re-offending based on static risk factors.   Dynamic risk factors included high sex drive, impulsivity, lack of concern for others, negative emotionality, poor capacity for relationship stability, deviant sexual preference, sex as a coping mechanism, poor problem solving and previous offending when on parole.

[53]     From these matters Ms Sharma assessed you as being at a high risk of sexual re-offending against pre-pubescent and pubescent girls following your release into

the community.   She stated that you have shown co-operation while in prison on previous sentences and so appeared to adjust well and respond positively to a strictly monitored  environment  that  has  clear  rules  and  regulations.     However,  your repetitive rapid de-stabilisation into a criminal lifestyle upon being released into the community highlighted the fact that your risk of re-offending is high without a tightly monitored external structure.

[54]     I note that despite some inconsistency between them, both reports place you at a medium to high risk of further sexual re-offending and that previous steps to address the offending have proven unsuccessful once you leave the regimented environment of a prison.  I therefore conclude that you are likely to commit a further sexual offence of a similar nature upon your release from a finite sentence.  That is the third pre-condition for preventive detention.

[55]     However, simply establishing that the three pre-conditions does not mandate a sentence of preventive detention.  I must now consider the matters upon which a sentence of preventive detention may be imposed.

[56]     The first matter to consider is whether any pattern of serious offending is disclosed by your previous convictions.   This is your third set of convictions for similar offending over the last 15 years.   While that is not a lengthy history, it is disturbing because the severity of the offending is increasing.

[57]     The second matter is the seriousness of the harm to the community caused by your offending.   The victim impact statements I have referred to illustrate the seriousness of your offending and the impact it has had on the lives of the victim, and her parents.

[58]     The third matter to take into account is any information indicating a tendency to commit serious offences in the future.  Both Dr Skipworth and Ms Sharma have indicated that you are at a medium to high risk of re-offending.  While the reliability of this assessment is somewhat limited by your refusal to be interviewed, it does not, in my view, invalidate the assessments. That is because the assessments are based on multiple previous assessments.

[59]     Fourthly, I consider any information as to the absence of, or failure of, efforts by you to address the cause or causes of your offending.   As I said earlier, you undertook  the Te Piriti  child  sexual  offender  programme  in  2008.    Ms  Sharma referred to that in her report and noted that although you appeared to have completed the programme successfully, it was clearly not successfully transferred into the non- prison environment.

[60]     The final matter to consider is the principle that a lengthy finite sentence is usually preferable to an indeterminate sentence, if the finite sentence provides adequate protection for the community, and protection against risk.  While you have served a lengthy period of imprisonment in the past, it was for other offending.  In relation to your sexual offending you have served terms of nine months and one years imprisonment.   Preventive detention is less likely to be imposed where the offender has not previously served a length term of imprisonment for relevant offending.    A lengthy  term  of  imprisonment  might  assist  you  to  recognise  the seriousness of your offending, to dissuade you from future offending, and enable your participation in prolonged treatment programmes.

[61]     I note that Ms Patterson has referred me to the Court of Appeal’s decisions in R v Hutchison and R v Parahai and in particular to the comment in Parahai that a finite sentence coupled with an extended supervision order should not necessarily be viewed as an “agreeable alternative” to a sentence of preventive detention.13   That is not the only matter to take into account because I still have to consider the principle of sentencing as to the least restrictive sentence to be imposed.

[62]     Mr  Dodds  submitted  that,  particularly  given  your  present  age,  a  finite sentence (which he envisaged was likely to be followed by an extended supervision order upon  your release), is the appropriate sentence and will provide adequate protection for the community.   Ms Patterson submitted that this is not a finely balanced case.  While acknowledging that you do not have a significant history of relevant offending, Ms Patterson submitted to me, strongly, that a sentence of preventive detention is required and that a finite sentence with the prospect of an

extended supervision order will not adequately protect the community.

13     R v Hutchison [2007] NZCA 55 (CA); R v Parahai [2005] 3 NZLR 356 (CA).

[63]     In the end result, I have concluded that, in this case, a lengthy term of imprisonment should be imposed rather than preventive detention.  In reaching this conclusion I bear in mind the prospect of an application being made for an extended supervision order.  That means that the term of imprisonment, which I will shortly impose on you, will be one of 13 years and six months imprisonment.

Minimum period of imprisonment

[64]     I  come  now  to   consider  whether  to   impose  a  minimum   period  of imprisonment.    Under  s 86  of  the  Sentencing Act  2002,  a  minimum  period  of imprisonment may be imposed for the purpose of holding you accountable for harm done to your victim and the community, denouncing the conduct in which you were involved,  deterring  you  or other persons  from  committing similar offences,  and protecting the community from your offending.

[65]     In your case, and indeed it is not challenged, a minimum period will be imposed,  and  this  is  because  I  consider  that  the  minimum  period  that  would otherwise apply under the Parole Act 2002 (which is, one third of the sentence) is insufficient for the purposes of sentencing to be achieved.

[66]     Would you please stand.

Sentence

[67]     (a)      On the charge of rape (count 1 in the indictment) you are sentenced to

13 years and six months imprisonment.

(b)On  the  first  charge  of  sexual  violation  by  unlawful  connection (count 2  in  the  indictment)   you  are  sentenced  to   three   years imprisonment.

(c)      On the second charge of charge of sexual violation by unlawful sexual connection (count 3 in the indictment) you are sentenced to seven years imprisonment.

(d)On the charge of indecent assault (count 4 in the indictment) you are sentenced to two years imprisonment;  and

(e)       On the charge of threatening to kill (count 5 in the indictment) you are sentenced to two years imprisonment.

[68]     All sentences are to be served concurrently.  Your effective total sentence is

13 years and six months imprisonment.

[69]     I order that you serve a minimum period of imprisonment of eight years.  I record that this is the same minimum period that I would have imposed had I ordered a sentence of preventive detention.

Please stand down.

Andrews  J