R v Ipo HC Auckland CRI 2008-092-1835
[2010] NZHC 541
•20 April 2010
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2008-092-001835
THE QUEEN
v
TEANEWA JOSEPH IPO
Hearing: 20 April 2010
Counsel: A McClintock for the Crown
P Kaye for the prisoner
M Dyhrberg as amicus curiae
Judgment: 20 April 2010
SENTENCING REMARKS OF STEVENS J
Solicitors/Counsel:
Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140 P Kaye, PO Box 941, Shortland Street, Auckland 1140
M Dyhrberg, PO Box 47867, Ponsonby, Auckland 1144
R V TEANEWA JOSEPH IPO HC AK CRI-2008-092-001835 20 April 2010
Introduction
[ 1 ] Teanewa Joesph Ipo, you appear for sentence today having been found guilty
after trial by jury of the following charges under the Crimes Act 1961: two charges of sexual violation by rape, for which the maximum penalty is 20 years’ imprisonment; two charges of kidnapping, for which the maximum penalty is 14 years’ imprisonment; one charge of wounding with intent to cause grievous bodily harm, for which the maximum penalty is 14 years’ imprisonment; one charge of aggravated burglary, for which the maximum penalty is 14 years’ imprisonment; one charge of injuring with intent to cause grievous bodily harm, for which the maximum penalty is ten years’ imprisonment; and one charge of theft, for which the maximum penalty is two years’ imprisonment.
Note:
Although Mr Ipo was not in Court to hear the delivery of these remarks (for the reasons set out in Minute [16]) it is convenient to deliver the remarks in the second person.
For the purposes of your sentencing today, I have been assisted by written and oral submissions both from the Crown and your counsel, Mr Kaye. I am grateful to counsel for the quality and comprehensive nature of the written submissions. I have also received two reports from health assessors; Dr Russell Wyness, a Consultant Psychiatrist, and one from Renate Bellve-Wack, a Registered Clinical Psychologist. There is also a pre-sentence report and two quite moving victim impact statements. I am also grateful to Ms Dyhrberg for being present in her role as amicus in case there were matters that needed to be added. In the event there were not, but her presence both at trial and sentencing as amicus has been appreciated.
Factual background
The first victim, Ms L , is a 48 year old Malaysian Chinese woman. The second victim, Mrs C , who is Ms L ’s mother, is also of Malaysian Chinese descent. She is 69 years of age. On the night of 4 February 2008, Ms L and her
mother were at Ms L ’s home address of [address]. The women went to bed at around 1 1pm that evening. At approximately 1.15am on the morning of 5 February 2008, you entered Ms L ’s home through an unsecured window in the spare room at the front of the house. Upon entering the house, you obtained a belt with a large metal buckle from the spare room, and went directly to Ms L ’s bedroom.
Ms L awoke to you hitting her on the head. You placed a pillow over her head, at which point she started screaming and kicking. You continued to punch her in the face with the belt wrapped around your hand which cut Ms L ’s face. Ms L ’s screaming awoke her mother, who came to her daughter’s aid. You then began hitting her elderly mother Mrs C , punching her in the face with the belt still around your hand, cutting her face. You also kicked her in the chest and punched her in the back a number of times. You then gagged Mrs C around the mouth with another belt and forced her into the wardrobe in the bedroom, telling her not to move.
You then told Ms L that you had been watching her on two previous occasions. You asked where her husband was. Ms L told you that he was coming back soon, in the hope that this would cause you to leave. But you then grabbed Ms L and walked with her through the house to the lounge window, looking out the window for signs of her husband. You then returned with Ms L to her bedroom, and despite her pleas to stay in the spare bedroom where she knew you would be away from her mother, you took her to her own bedroom.
Ms L realised what was about to occur. She pleaded with you to use a condom, which you did, telling her that you did not want her to get pregnant. You removed her underwear and asked her to lie down. She was unable to do so as she was dizzy from the earlier attack. Instead, you told her to bend over and place her hands on the bed while standing up. You then proceeded to rape her from behind while her mother remained shut in the wardrobe in the same room. Ms L estimated that the rape lasted about five minutes.
Afterwards Ms L again told you that she felt dizzy, and you took her to the kitchen and enabled her to obtain a drink from a carton of milk. You then took her back to her bedroom where you raped her for a second time. On this occasion, you made her lie down and cover her face with a blanket. After the second rape, you told Ms L to remove her items of clothing as there was a large amount of blood on them. I should mention that the second rape lasted longer than the first and you told Ms L beforehand that she was lucky not to be killed. Afterwards she removed all of her clothing except her underwear and gave the clothing to you. You then placed the clothing in Ms L ’s ensuite and made her put on a new top.
At this point you saw a black backpack in Ms L ’s room and asked her what was in it. She pleaded with you not to take it as it contained valuable personal documents. She said you could have the money from it and you ordered Ms L to cover her face with the blanket while you went through the backpack. You removed the documents and a small amount of currency, but kept approximately USD$500, NZD$800 and about MYR$400.
[ 10] You then forced Ms L into the same wardrobe as her mother and placed furniture up against the door. You told both victims that if they contacted the Police you would kill then. You then removed the bedding from the bed, which was covered in blood, and took it with you. You left through the rear door of the house along with the backpack and money. The bloodied bedding was later found by Police in a bush reserve not far from the house.
[ 11 ] You evaded Police until 17 March 2008 when you were located at an unrelated address. You refused to give any explanation for your actions.
Victim impact statements
Ms L
[12] Ms L described the harm caused by your offending. She said that the
emotional impact was what had affected her the most. She said she could no longer
go through the night without waking up with nightmares and is scared of being alone
in her house. She described how your offending has affected her relationships with other males, particularly Maori males. Ms L said she is struggling to get over what happened to her and it is something she will never forget.
[13] As a result of the attack, Ms L received various injuries including a fractured lower jaw requiring bone to be implanted into her lower jaw. In addition, seven teeth had to be replaced by dental implants. Ms L was still receiving treatment for this in March of this year. With respect to the dental injuries, including to the teeth far back in the mouth, these demonstrate the high level of force used by you in what can only be described as a brutal and cowardly attack. Ms L also required three sets of surgeries, and as at 19 February 2010, still had one further surgery to go. She received multiple lacerations to her face which required stitches and was left with permanent scarring on her top lip and to the side of her head. Ms L has also suffered financially in a number of respects. In particular, she was forced to sell her house at a considerable loss, as she was fearful of living there after the accident.
Mrs C
[ 14] Mrs C said that following the incident she experienced a range of emotions. Initially she was upset and angry, and later became depressed. She still keeps reliving the day, feeling that she should have done more to protect her daughter, but could not. Mrs C said that as a result of the incident she received bruising to her face, chest and back area, but that it was the emotional harm that had affected her the most.
[15] Referring to the injuries she received, the facial bruising was severe and there was a laceration to the face 15cm in length that required stitches. The bruising down the neck and chest wall measured 13 x 13cm. Finally, there was multiple bruising to the arms, base of the neck and back illustrating the force of your attack on this relatively elderly woman.
Personal circumstances and pre-sentence report
[ 16] You declined to take part in the pre-sentence report interview and accordingly, the probation officer was required to submit a report without your input. The information contained in the report was extracted from documentation provided to the Department of Corrections and taken from departmental records, as well as a previous pre-sentence report dated 24 June 2003.
[ 17] The report states that you are 29 years of age. You grew up in South Auckland in the home of your maternal grandparents, mainly due to your status as the first born grandson. Your grandfather died when you were two years old and your grandmother took over your care. Your mother says that you were neglected by your grandmother, you were made to do domestic chores, and you were beaten by your much older female relatives. You were introduced to cannabis and alcohol by relatives, and you learned to steal. You lived in a social cL ate where boundaries and restraints were non-existent. It seems that you had an appalling upbringing.
[ 18] In 1997, the year following your first bout of serious offending, you were sent to Whakatane to live with your mother and her partner. However, this was unsuccessful and you later returned to Auckland. When your mother moved to Auckland in the latter part of the 1990’s you moved between the homes of your mother and your father, who were separated. Your father informed the report writer who prepared the pre-sentence report back in 2003 that he had “given-up” on you. He said you had your own agenda and did what you wanted to. Your mother shared these sentiments at the time, and while expressing her concerns, acknowledged that you rarely listened to anyone.
[ 19] The 2003 report found that you lacked insight into your offending, failed to show any remorse, were quick to minimise your behaviour and had a history of apportioning blame to others while doing nothing to help yourself. In the more recent report prepared for the purposes of today’s sentencing, the writer stated that you were a recidivist offender at high risk of re-offending. She said the risk could be reduced if you were willing to engage in treatment to address you rehabilitation needs.
[20] You told the probation officer that you would be appealing all of your convictions. You said that, if you participated in your defence at trial, you would jeopardise your appeal.
Previous convictions
[21 ] Your previous criminal history is extensive. You have a total of 74 previous convictions dating from March 1997, when you were 16 years of age. You have 39 convictions since 2000. Your convictions comprise 16 violence offences, including aggravated robbery, wounding with intent, male assaults female, assault on a child and aggravated assault; 34 dishonesty/property offences including burglary and breaking and entering; 12 convictions for disobedience of Court orders including escaping from custody and breach of parole; and 12 traffic offences. The majority of your previous convictions seem to be made up of multiple offending sprees.
In December 2001, you were sentenced to five years’ imprisonment in the District Court following guilty pleas to 13 violence charges involving your then partner and a charge of assault against your sister. These charges related to offending over the period 30 October 2000 to 6 January 2001, described in the sentencing notes as involving “a series of prolonged and brutal episodes of violence on the complainant over approximately a nine week period”. As I observed during the hearing, the summary of facts for that offending makes grim reading.
Purposes and principles of sentencing
The Sentencing Act 2002 (the Act) requires that I keep a number of purposes and principles in mind when deciding on an appropriate sentence. In your case, I have specific regard to the following purposes of sentencing, as set out in s 7 of the Act: the need to hold you accountable for the harm done to the victim and the community, the need to promote in you a sense of responsibility for, and an acknowledgement of, that harm; the need to provide for the interests of the victim; the need to denounce your conduct; the need to deter you and others like you from
committing the same or a similar offence; the need to protect the community from you; and the need to assist in your rehabilitation and reintegration.
In sentencing you, I also take into account the principles of sentencing according to s 8 of the Act, including: the need to take into account the gravity of your offending; including the degree of your culpability; the need to take into account the seriousness of this type of offending in comparison with other types of offences; the need to consider the general desirability of consistency with appropriate sentencing levels; the need to take into account the information provided to the Court concerning the effect of the offending on the victim; and the need to impose the least restrictive outcome that is appropriate in your circumstances.
Where a person is convicted of sexual violation a sentence of imprisonment must follow, unless the Court considers that the person should not be sentenced to imprisonment: see s 128B of the Crimes Act 1961.
Aggravating and mitigating factors
The Court of Appeal in R v Taueki [2005] 3 NZLR 372 sets out the orthodox approach to sentencing. Accordingly, I will look at a suitable starting point based on the features of the offending, and then adjust the starting point according to any mitigating and aggravating factors relating to you, as the offender.
First the aggravating features of the offending. The Crown submissions accurately summarise the aggravating factors. These include the fact that the offending against both victims involved both actual and threatened violence, which was aided by the use of a weapon, namely, a belt. This was particularly so against Ms L who received serious injuries to her head and face. I accept that there was no additional violence during the rapes, beyond that which is inherent in the acts themselves. This is probably because Ms L (no doubt wisely) did not resist. Had she done so, there is a strong likelihood that the outcome would have been more serious, as you were determined to have your way with the younger of your victims.
Also aggravating is the fact that you unlawfully gained entry to Ms L ’s home in the middle of the night, cL bing through an unsecured window as noted earlier. Further, you committed the offending whilst on parole, having been released from prison only on 15 January 2008. You were also on bail for a charge of male assaults female, a charge which is currently the subject of an appeal.
The harm suffered by the victims is a further aggravating factor, and I have already referred to the victim impact statements of both Ms L and Mrs C and the injuries they received. The Crown noted the element of cruelty involved by the fact that you raped Ms L while her mother was gagged and locked in the wardrobe and unable to intervene to protect her daughter. This was despite Ms L ’s pleas to go into the spare room. I also accept the Crown’s submission that Mrs C was particularly vulnerable given her age.
Finally, while the offending was opportunistic in the sense that you were on your way home from a party when you spotted the open window, the evidence at trial clearly supported the fact that you had been watching the victim’s address prior to the attack. Furthermore, Ms L gave evidence that you told her that you had been watching her twice. This suggests that there is an added element of premeditation in the offending.
I consider there are no mitigating factors relating to the offending.
Turning to the aggravating features relating to you personally, the most serious of course are your previous convictions, which I have earlier referred to. These include the 16 violence offences mentioned.
In terms of you, the offender, there are no mitigating factors. You deny responsibility and have not shown any remorse towards the victims.
Crown submissions
[34] Having referred to the aggravating features summarised above, the Crown outlined these aggravating factors as being highly relevant to sentence.
The Crown submitted that there were two sentencing options available to the Court, namely, a finite term of imprisonment with a minimum term of imprisonment, or preventive detention.
In relation to preventive detention, the Crown submitted that your criminal history demonstrated a clear propensity for serious violence and that you present a significant and ongoing risk to the safety of members of the community. The Crown submitted that in order to protect the community you would first need to be successfully treated. However, at the present time you do not show any indication of being amenable to treatment.
The Crown also highlighted the fact that, with your history of previous offending, you have taken no responsibility for your actions, have failed to address the causes of your offending, present an attitude of denial, minimisation and blame on others, and your lack of remorse is apparent. The Crown pointed to the report prepared by Dr Bellve-Wack where she identified a particularly high likelihood that you would recidivate and commit violent and sexual offences in the future.
The Crown submitted that preventive detention will provide the best protection for the community in this case. In addition, the Crown submitted that a minimum term of imprisonment should accompany that sentence. Relying on the Court of Appeal decision in R v Kahui [2008] NZCA 581, the Crown submitted that a minimum term of imprisonment in the range of nine to ten years is appropriate.
In terms of a finite sentence, the Crown referred to the guideline judgment of the Court of Appeal in R v AM [2010] NZCA 114. There seems to be no dispute that your offending falls towards the lower end of band 3. That band provides for a starting point in the range of 12 to 18 years and is intended to cover offending accompanied by aggravating features at a relatively serious level: see [105]. The Crown submitted that in your case a final sentence in the range of 141/2 to 16 years would be appropriate. Further, the Crown submitted that this is an appropriate case in which to impose a minimum term of imprisonment, and again a period of nine to ten years was suggested.
Defence submissions
[40] On your behalf, Mr Kaye made submissions both in relation to a finite sentence and preventive detention. Mr Kaye acknowledged your previous offending and the fact that you have a lengthy list of convictions. However, he emphasised that there is a lack of any sexually-related offending in the past. Ultimately, however, Mr Kaye realistically conceded that your history demonstrates that you have shown a disregard for authorities as far as your release conditions have been concerned, and that you must pose a risk to the community. Mr Kaye also acknowledged that there was a degree of premeditation and planning involved, but submitted that the extent of that is unclear. He accepted there was clearly the use of violence beyond that associated with sexual violation, and that the victim’s home was broken into. He also accepted the vulnerability of the victims and that the offending was repeated. As such he accepted that there ought to be increased culpability, with your offending falling within band 3 in R v AM.
[41 ] Notwithstanding these very proper concessions, Mr Kaye submitted that a finite sentence together with a minimum period of imprisonment is appropriate. He referred to the presumption in favour of such a finite sentence and noted that you are, at 29 years of age, still relatively young. In particular, with regard to the sentence of preventive detention, Mr Kaye emphasised that the Court must be satisfied as to there being a pattern of offending as required by s 87(4)(a) of the Act.
[42] Mr Kaye therefore submitted that a sentence of between 14 and 16 years, together with a minimum term of imprisonment of approaching ten years, would be sufficient to manage the ongoing risk and protection for the community. He submitted that a sentence of preventive detention was unnecessary at the present time.
Heath assessor reports
[43] There is a report from Dr Wyness, dated 19 February 2009. He notes also
that you are focused on appealing your convictions and chose not to respond to his
questions. Dr Wyness, on page 6, described a pattern suggestive of repeated violent offending associated with lack of remorse as follows:
As noted before Mr Ipo has an extensive history of criminal offending since the age of 14 years to the present time. He has a history of assaults on women and a child which total 18 in number and most recently his offending has extended to include rape. Thus this is a pattern in that Mr Ipo has assaulted different women at different times and on each occasion appears to have shown little empathy for the victim or remorse during or subsequent to the offending.
Dr Wyness also noted that your behaviour did not indicate any remorse for your offending. He described your insight as “consistent with a rather self-centred view of the world”. Risk factors that Dr Wyness considered likely to cause re-offending included a long history of previous offending, increased versatility and severity of offending, alcohol and illegal drug use, lack of employment history, failure to C ge behaviour after previous punishment, lack of credible future plans and failure to accept full responsibility for this offending.
Dr Wyness concluded on page 7 that:
...The number of offences committed over a period of 13 years indicates a high likelihood of re-offending. The fact that there has been a progression in the severity of offending suggests that future offending may well include serious violence or violent sexual offending.
Dr Wyness does not consider that you suffer from any functional psychiatric illness, but assesses you as meeting the diagnosis of anti-social personality disorder. He recommended ongoing supervision from the Probation Service once released from prison in the future.
I should mention in relation to the report of Dr Wyness, that Mr Kaye emphasised that many of the factors Dr Wyness referred to are in fact looking back, which is in a sense true. But it is from these factors that the Court must assess the risk for the future.
In that regard, I also have the report from Dr Bellve-Wack dated 23 February 2010. She noted an apparent co-operation, but added that your answers were at times “deliberately delayed, over-inclusive, vague and contradictory”. Although she
observed that there was no evidence of contact with the mental health system, she said you had tried on various occasions to feign psychiatric symptoms to achieve specific gains, such as to remain in or be transferred to the Special Needs Unit.
Dr Bellve-Wack assessed you as having come from a background of neglect and emulating anti-social behaviours and activities. She noted that you have difficulty with intimate relationships and tend to react with violence. In terms of responsivity to treatment, she noted that despite declarations that you would participate in rehabilitative programmes, you have failed to do so. In this situation your insistence that the issue is a legal one is also a barrier to effective treatment.
Dr Bellve-Wack stated at page 13 that:
It thus appears that Mr Ipo is not sincere about addressing his substance use and violence issues. The responsivity factors that prevent him from contemplating self improvement and pro-social change are his denial, i.e. unwillingness to accept responsibility for his offending and other problems, minimization and ego-syntonicity of his violence, lack of empathy, antisocial values and goals, an attitude of entitlement, emotional immaturity, lack of trust and reluctance (and possibly inability) to form therapeutic relationships. Given these factors Mr Ipo would need significant motivational interventions before he might contemplate addressing his criminogenic needs. If he gained sufficient motivation he would need an intensive, long-term residential programme to address his issues.
Dr Bellve-Wack assessed you on the HCR-20, the STATIC 99 and the STABLE-2007 for risk of future violent and sexual offending. On the HCR-20, you were put in the category of high risk for violent re-offending. The STATIC 99 assessment also showed you as being at high risk for sexual recidivism. She noted that research had shown that 36 percent of sex offenders with your score re-offended within five years, and 44 percent re-offended within ten years.
Dr Bellve-Wack also assessed you in the high range on the STABLE-2007 measure. The risk factors on the STABLE-2007 identified as problematic for you included lack of positive social influences demonstrated by your longstanding association with anti-social family and friends, difficulties in forming and maintaining stable relationships with women, general hostility towards women, poor problem solving abilities and impulsivity, lack of concern for others and anti-social values which support a domination-based approach to relationships.
You were assessed using the PCL-R (Psychopathy Checklist–Revised) and found to have a very high score on all factors. I will not elaborate on the details of the report supporting these findings. But Dr Bellve-Wack concluded at page 16 as follows:
In summary, Mr Ipo has a large number of static and dynamic risk factors. His personality, behaviour and values indicate a high degree of anti-sociality. His violent and sexual offending demonstrates a high degree of hostility toward women, entitlement and lack of empathy. Mr Ipo’s attitude regarding his offending reflects denial, minimization, blame, justification and shifting of responsibility and a lack of interest to understand, much less address his criminogenic factors. While he has identified substance abuse as a strongly contributing factor to his offending, he has not availed himself of programmes or collaborated with assessment even when it was part of parole conditions. While in prison Mr Ipo has used manipulative tactics to secure a place where he is not challenged by others and where possibilities for programme attendance to address offending behaviour are limited. Thus Mr Ipo has so far not demonstrated any motivation for change.
Currrently he insists that his problems are legal and need to be addressed by legal means (appeal).
Finally, Dr Bellve-Wack stated that the underlying psychological dynamics that motivate your violent and sexual offending are longstanding and deeply ingrained. Once again she reiterated that your high scores on all relevant assessments indicated a high likelihood to recidivate. She said that you would need “substantial motivational interventions”, or you would not be accepted into the Department of Correction’s intensive, long-term residential intervention programmes that are geared to treat high risk offenders.
Finite sentence of imprisonment
Referring to the Court of Appeal guideline judgment of R v AM for offences involving sexual violation, I agree that your offending falls within band 3 with a starting point of between 12 and 18 years. Taking into account the circumstances particular to you, I agree with counsel that if a finite sentence is to be imposed, a term in the range of of 14 to 16 years would be appropriate, most likely towards the upper end of that range, given the high level of culpability involved in the totality of this offending.
In terms of a minimum period of imprisonment, s 86(2) of the Act enables the Court, in certain circumstances, to impose a minimum term of imprisonment if satisfied that the period otherwise applicable under s 84(1) Parole Act 2002 would be insufficient to meet the purposes referred to in that section. In your case, I consider that a minimum period of imprisonment of around ten years would be appropriate, had a finite term of imprisonment been imposed.
Preventive detention
Mr Kaye accepted that you meet the qualifying criteria under s 87(2) of the Act. The real question is whether you are likely to commit another qualifying violent or sexual offence if you are released at the expiry date of a finite sentence: see s 87(2)(c) of the Act. In this respect, I am required to take into account a number of mandatory considerations as set out in s 87(4) of the Act.
I have also noted the leading authority on preventive detention in R v C [2003] 1 NZLR 30 (CA) and I refer in particular to [5] and [6]:
The following general comments may be helpful before we address the circumstances of the present case. In s 87(1) Parliament has clearly spelt out the purpose of preventive detention. It is to protect the community from those who pose a significant and ongoing risk to the safety of its members. The purpose of preventive detention, as described in s 87(1), is not materially different from the purpose of the sentence as described by this Court in R v Leitch [1998] 1 NZLR 420 at p 428. Protection of society has always been a dimension of sentencing at common law. In the case of the sentence of preventive detention it is the dimension which Parliament has indicated is to predominate. The qualifying offences set out in s 87(5) are, as s 87(2)(a) indicates, all sexual crimes or crimes of violence. In the latter respect the range of qualifying offences has been significantly widened.
Under s 87(2) there are three preconditions to the imposition of a sentence of preventive detention. In short, the three qualifiers are: (i) the commission of a qualifying offence; (ii) when aged 18 or older; and (iii) the likelihood of the commission of another qualifying offence upon release. Their establishment does not mandate such a sentence. Its imposition remains a matter of discretion (the High Court “may” impose such a sentence: s 87(3)). The statutory discretion again reflects the approach which was confirmed in Leitch at p 429. The sentence of preventive detention is not a sentence of last resort, albeit its imposition must be carefully considered. The greater flexibility of the new regime, whereby parole eligibility can and often will occur earlier than at the previous ten-year mark, reinforces the Leitch approach.
Pattern of serious offending disclosed by the offender’s history
Addressing each of the s 87(4) factors in turn, I am satisfied that your criminal history demonstrates a clear propensity for violence. Your previous convictions display your willingness to use violence against members of the community, demonstrated by the offences such as aggravated robbery, people with whom you are in a relationship with, as well as persons who you perceive as barriers to what you want to do.
Dr Bellve-Wack identified in her report that you use “gratuitous violence” to dominate and humiliate your victims and that this was common to all of your offences against females. In light of this, and as the Crown submitted, it is concerning in the present offending that you have used serious violence combined with sexual violence against a complete stranger.
Despite Mr Kaye’s thorough submissions to the contrary, I am satisfied that there is a pattern of serious offending disclosed here.
Seriousness of the harm to the community
The facts demonstrate clearly that this factor is met. As the Crown rightly submitted, your offending in this case strikes at the heart of the sense of security of the immediate victims and also of the wider public.
Information indicating a tendency to commit serious offences in the future
Both health assessors’ reports clearly demonstrate that you are at high risk of serious offending in the future for the reasons already described.
The Crown also identified that while you have spent a large part of your adult life in prison, this does not appear to have deterred you in any way from further offending. Rather, you appear to continue to re-offend within a short time of release. Furthermore, both Dr Bellve-Wack and Dr Wyness noted in their respective reports
the seriousness of your offending has escalated, showing an increasing severity in nature and an increasing variety. Your offending has become increasingly violent and reckless and both health assessors considered you to be at high risk of re-offending. This factor is therefore met.
The absence of, or failure of, efforts by you to address the cause or causes of your offending
You have made little effort to address the causes of your offending. This is clearly exemplified in the health assessors’ reports. Both of these reports refer to your failure to reach goals set in prison to address your offending, and agree that you are not, at present, sincere about addressing your substance and violence issues. Clearly, your denial, minimisation and failure to take responsibility for your offending make it difficult, if not impossible, for you to take genuine steps to address the cause or of causes of it.
I refer to Gendall J’s comments in R v Jellyman HC Wanganui CRI-2006- 083-2875, 28 April 2008 at [32], which are particularly relevant to the present situation:
The remedy for those who commit sexual crimes is always in their own hands. That is, to take advantage of the treatment and rehabilitative measures that are offered. The advantage of a sentence of preventive detention is that it provides a strong incentive for an offender to undertake treatment so if it is successfully completed, release on parole, or the prospect of release on parole, is enhanced. Unless treatment and rehabilitation occurs with genuine remorse and insight into those factors which led to the serious offending, then the safety of the community dictates that such an offender remain subject to an indefinite sentence.
A lengthy determinate sentence is preferable
I have carefully considered this factor in this case. I have noted in particular that you are still, at 29, a relatively young man. But if a finite sentence of around 15 years were imposed, you would at that stage be 44 years of age. I am not satisfied that type of sentence would be adequate to protect society.
In particular, I note that for this offending you would not be eligible for an extended supervision order: see s 107B(2) of the Parole Act. I agree with the Crown submissions that in order to protect the community you first need to be successfully treated. That requires you to acknowledge your problems and your wrongdoing and agree to embark upon the treatment and programmes available to you.
I consider that you need an incentive to engage in the advantages that treatment and rehabilitation measures will offer and that is best provided by a sentence of preventive detention.
Conclusion
Having considered all of the mandatory statutory criteria, I am satisfied that a lengthy determinate sentence would not be sufficient protection for the community.
Mr Ipo brought into court
Mr Ipo, while you have been absent with permission, I have heard from the Crown and Mr Kaye, I have also asked Ms Dyhrberg if she wants to add anything, and I have already given the bulk of my reasons for the sentence I am going to impose on you now. I am now just going to read the conclusion and impose the sentence.
Having considered all of the mandatory statutory criteria, I consider that a lengthy determinate sentence would not provide sufficient protection to the community. I am satisfied that the only appropriate sentence is one of preventive detention.
A sentence of preventive detention essentially places the remedy in your own hands. That is, you will remain subject to an indefinite sentence until you are ready to take responsibility for your actions and demonstrate that you are willing to make genuine efforts to address your offending and to embark on, and take advantage, of treatment offered and rehabilitation programmes.
Minimum period of imprisonment
The statutory provision provides for a five year minimum term of imprisonment when imposing a sentence of preventive detention. This may be increased in certain circumstances, which are set out in s 89(2) of the Act where that is required for the purposes of ensuring the safety of the community. I am conscious that the Court must follow the two-step process under s 89(2): see R v C.
In your case, I am satisfied that there is a need to extend the minimum non-parole period to appropriately reflect the gravity of your offending. The Crown submitted that an appropriate minimum period approaching ten years would be appropriate. I agree. This will give you the opportunity to address your offending and undertake the treatment and rehabilitation programmes available should you so choose. Until you do that, I consider you will continue to pose a threat to the safety of the community. So you will not be eligible to apply for parole until the expiry of ten years.
Result
I impose a sentence of preventive detention as the only proportionate response to your offending and I impose that sentence on each of the two charges of rape. I also impose a minimum term of imprisonment of ten years.
In respect of the two kidnapping charges, the wounding with intent to cause grievous bodily harm and the aggravated burglary charges, I impose a sentence of seven years’ imprisonment. On the charge of injury with intent to cause grievous bodily harm, I impose five years’ imprisonment. On the charge of theft, I impose a sentence of one year imprisonment. All of those terms of imprisonment will be concurrent with the sentence of preventive detention.
[78] You may stand down.
Stevens J
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