R v Iwikau
[2016] NZHC 222
•19 February 2016
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-004-4046 [2016] NZHC 222
THE QUEEN
v
JAMES GEORGE IWIKAU
Charges:
Plea:
Entering a building without authority with intent to commit
imprisonable offence; Assault with intent to commit rape
Guilty
Counsel:
N R Williams for Crown
P K Hamlin for PrisonerSentenced:
19 February 2016
SENTENCING NOTES OF DAVISON J
Solicitors/Counsel: Meredith Connell (Auckland) for Crown
P K Hamlin (Auckland) for Prisoner
R v IWIKAU [2016] NZHC 222 [19 February 2016]
Introduction
[1] Mr Iwikau, you may remain seated while I address the issue of your sentence. At the end of the sentencing remarks which I am about to deliver, I will ask you to stand as the sentence is in fact imposed.
[2] Mr Iwikau, you have pleaded guilty to one charge of assault with intent to commit sexual violation1 and one charge of entering a building without authority with intent to commit an imprisonable offence.2 The maximum penalty for each of these offences is 10 years’ imprisonment.
[3] You now appear before the Court for sentencing.
Facts
[4] The victim lives at a housing complex split into a number of separate residential blocks. Access to each block is by way of an access card.
[5] On 20 April 2015, at about 11 pm, the victim arrived home with her partner. She entered the complex building using her access card and, having entered the building, she confirmed the door behind her was securely locked. She and her partner then entered her residential room using a separate key which was assigned to her room. At about midnight, she fell asleep in her bed. Her partner, in the same room, fell asleep on the couch.
[6] At around 4 am, you entered the victim’s room using a door or a window. You then climbed onto the bed that she was sleeping in. You moved close to the victim and kissed her on the lips, penetrating her mouth using your tongue. While doing so, you repeatedly whispered to her “take your pants off”. You said that three
or four times.
1 Crimes Act 1961, s 129.
2 Crimes Act, s 231(1)(a).
[7] Believing you to be her partner, the victim told you to shut the door. You got up and moved towards the door to shut it and, in doing so, you made sure your face was covered so that your actual identity was not visible to her.
[8] The victim then co-operated with you by pulling her shorts and underwear down to her knees and, on three occasions, you said to her “let me put it in your mick”. The victim then rolled onto her back with her shorts down. You then moved onto your back and pulled the victim over and towards you so that she was positioned on top of you.
[9] You attempted to undo your pants but you were unsuccessful. The victim then rolled over onto her back. You placed your hand between her thighs. You touched her genitals, directly contacting her skin, and you did that over a period of some 10 seconds or so without penetration being effected. You again pulled her on top of you.
[10] At that point, the victim observed that her partner was asleep on the couch and realised that you were not the person she believed you to be – that you were someone who was a stranger and totally unknown to her – and she began to scream at her partner “babe, babe, wake up”. This led you to flee from the scene.
[11] When subsequently spoken to by the Police about the incident, you said you could not remember what had happened.
Victim Impact Statement
[12] It goes without saying, Mr Iwikau, that your offending has had a profound effect upon the victim and, of course, her partner.
[13] In the victim impact statement, the victim describes the effect of your offending and what it has done to the relationship she has with her partner. She expresses a feeling of helplessness, a feeling of an inability to have feelings of intimacy towards her partner following the incident. As a direct result of your offending, the victim and her partner now struggle to function as a couple.
[14] The victim was unable to stay in her own accommodation for about three months after the offending. She has become apprehensive and fearful in the dark and remains acutely conscious about security. She says that she worries if a door is unlocked or even a window is open. She says she now finds herself feeling anxious and unable to relax in ordinary social settings, and is constantly having to check as to who is around her.
Personal circumstances
[15] Turning to your personal circumstances, Mr Iwikau.
[16] You are 46 years old. You grew up in Taumarunui. You say that you left home and moved to Auckland when you were aged 15, where you then became involved with the Mongrel Mob. You say that it was at this age that you began to drink heavily and sniff solvents.
[17] You have experienced a number of different living situations, including living on the streets, returning to your family home for short periods of time, and more recently, when not incarcerated, you have lived at boarding houses (although your alcohol and substance abuse has meant that your stay at these locations has been inconsistent and for relatively short periods of time).
[18] You are the second of five siblings. You describe your childhood as being characterised by a physically abusive environment in which you were sexually abused by your uncle and beaten by your father (and sometimes your mother in order to avoid you being beaten by your father). You grew up in an environment where alcohol abuse and use was a feature. There was significant financial hardship, you say.
[19] You have now accumulated a long history of criminal offending from a young age. In total, you have 70 convictions entered between 1983 and 2015. I will not traverse in detail all of your previous offending but I will spend some time describing the summary of facts of some of your previous sexual crimes as they are relevant to your present offending, and relevant to the decisions that I need to make today.
[20] Your first convictions, as a 14 year old, involved a series of property crimes (including charges of burglary, shoplifting and unlawfully taking a motor vehicle). Your first two convictions for sexual offending occurred when you were aged 16, where you were convicted and sentenced for indecently assaulting two females aged
12 years and 10 years. The summary of facts in respect of that offending was as follows. At around 2 am, you left a party at which you had become intoxicated and, on your way home, you unlawfully entered two houses. In the first house, you got into bed with a 10 year old girl but you were interrupted by her father and, in the second house, you began kissing a 12 year old girl who was asleep on a couch before you were interrupted by her mother entering the room. Your response on each occasion was to flee the scene.
[21] Throughout the 1980s, you accumulated a number of convictions in relation to cannabis, property crime (including one count of burglary in July 1989 and two counts of burglary in August 1989), possession of a knife in a public place and “intimidation by threat to a person”. You also were convicted of similar offences throughout the 1990s.
[22] Your third conviction for sexual offending occurred in March 1991 when you were then aged 21. Again, you entered a woman’s house unlawfully and, in that case, your victim was a pregnant woman. You said you were lost and asked her for directions but you were quickly told to leave. You left her bedroom but returned shortly thereafter. Having noticed the victim was pregnant, you asked to touch her stomach and proceeded to put both hands on her pregnant abdomen causing her considerable distress.
[23] Your fourth and fifth convictions for sexual offending occurred at the age of
25. In March 1995, you were convicted and sentenced on one charge of indecently assaulting a female aged between 12 and 16, and a further charge of male rapes female over 16. These charges were associated with two further charges of burglary. The facts were summarised as follows. Again, you had been at a party and in a heavily intoxicated state. At 4.15 am, you unlawfully entered a home in which a
15 year old girl resided. You attempted to sexually assault her, before she woke and called for help. You fled the scene and returned to the party that you had been at
earlier that night. You then had sexual intercourse with a woman who mistakenly believed you to be her partner.
[24] Your sixth and seventh acts of sexual offending occurred in the year 2000, some months after you had been released on parole conditions relating to the offending that I have just described. You were convicted and sentenced on two counts of indecently assaulting a female over 16 years. Again, this offending was associated with a burglary charge and, again, you were intoxicated. You entered three separate homes and went into the bedrooms of three women whilst they were asleep. You touched the feet of one victim; you kissed the second victim; and you also kissed the third victim by forcing your tongue into her mouth, and rubbing her genital area over her clothes.
[25] Your remaining convictions relate to burglary, shoplifting, and common assault offending as well a breach of home detention conditions and multiple breaches of an extended supervision order (in 2011, 2012 and 2014). I here note Judge Wolff’s sentencing remarks relating to the two charges of burglary in 2005, wherein he described you as having “entered women’s rooms while they were asleep and made your presence felt, scaring them considerably.”
[26] Your only period of employment appears to have been a relatively briefly held position where you obtained work in a factory in Auckland in your late teens which lasted about six months. You were dismissed from that position because of drinking on the job and, after that time, you became progressively involved with the Mongrel Mob (though I note that you were ostracised from that gang organisation because of some of your conduct to which they took exception).
Pre-sentence report
[27] The probation officer who has written the pre-sentence report has assessed you to be a very high risk of harm to others and a high risk of reoffending. Although it is correct, as your counsel has pointed out this morning, the probation officer has noted that in the 18 months prior to your recent remand, you had managed some stability in your living situation and you had utilised the support services and taken
some positive steps forward, the probation officer has nevertheless noted that he has assessed you:
… as at a high to very high risk of harm to others given these charges and the nature of some of his previous offences. He is assessed as a high to very high risk of reoffending due to the number of his previous offences.
[28] You told the probation officer that you stayed on the streets the day before the offending in this case. You said that you do not recall what had happened on the night of the offending because you were under the influence of alcohol and other substances, including cannabis and cocaine.
[29] I note that the probation officer who interviewed you has been your supervising probation officer for over two years, and he made the observations as to progress that I have just referred to.
[30] The probation officer says that you have very few, if any, close and supportive relationships. In the interview with him, you said you have a sense of bitterness towards your family for not looking after you, as well as to the “system”, which you consider has failed you because it is your belief that the authorities are “only trying to get [you] back in jail”.
[31] Some of the comments in the pre-sentence report are positive. Your probation officer reports that you have taken these steps to improve your relationship with your whanau. You have, in the last 18 months, begun to display a more positive demeanour and willingness to engage with the staff at Community Probation, and you have been able to manage your drinking behaviour with the result that there has been an improvement in relations with your family, Government staff and others living with you.
Submissions
Crown
[32] The Crown submits a sentence of preventive detention should be imposed on you, with a minimum of five years’ imprisonment. In the Crown’s submission, your previous criminal and behavioural history indicates a persistent pattern of serious
sexual and burglary offending. The lack of any acceptance of responsibility for your offending indicates a heightened risk of reoffending.
[33] The Crown submits that there have been numerous opportunities available to you for counselling and other professional interventions, and that you have failed to engage with them in a meaningful way.
[34] If a sentence of preventive detention is not imposed, the Crown submits that I should impose a finite sentence of six years, two months’ imprisonment with a minimum period of imprisonment of two-thirds of the finite sentence.
[35] On the charge of assault with intent to commit sexual violation, the Crown submits that I should adopt a starting point of five years’ imprisonment. In Mr Williams’s submission, the aggravating factors relating to your offending include the extent of harm suffered by the victim as a result of your offending; the scale of the offending; the vulnerability of the victim and that the offending took place in the sanctity of the victim’s home. Mr Williams has referred me to a number of cases which he says are more or less comparable to the present case (which I will address in due course).
[36] In Mr Williams’s submission, I should then uplift that starting point by two years to take account of the totality of your offending. The overall starting point, then, should be seven years’ imprisonment in Mr Williams’s submission.
[37] Mr Williams further submits that I should apply a further uplift to that starting point by a further 12 months to take into account your previous convictions.
[38] The Crown submits there are no mitigating factors personal to you, and that a discount of 10 to 15 per cent is appropriate given that you have entered guilty pleas at a late stage.
Defence
[39] Mr Hamlin, your counsel, has opposed the imposition of a term of preventive detention. He has directed my attention to a number of factors which he says point away from preventive detention being the appropriate sentence in your case.
[40] Mr Hamlin submits that you have been willing to address the causes of your offending but that it is your substance abuse which has impeded your efforts at rehabilitation. He says, in his submission, you are genuinely remorseful for your offending; and that you did not wish to cause harm to your victim. He tells me that you wish to undertake a treatment programme and build on the progress that you have been making, or were making, in the 18 months or so prior to your remand on these charges.
[41] In Mr Hamlin’s submission, a starting point in the range of four to four-and- a-half years’ imprisonment should be adopted. He refers me to a number of authorities to demonstrate that your offending sits at the lower end of the range. He submits the following are the mitigating factors relating to your offending:
(a) the offending was opportunistic, as opposed to premeditated and planned;
(b)the offending did not involve any features beyond those which are inherent in the offences themselves;
(c) the assault was in the nature of an indecent assault and not was not a violent assault; and
(d) the victim did not sustain any physical injuries.
[42] In Mr Hamlin’s submission, he acknowledges that I should uplift the starting point by one year to reflect the totality of your offending. On his figures, this would result in an overall starting point in the range of four-and-a-half to five-and-a-half years’ imprisonment.
[43] Mr Hamlin also accepts that a further uplift of 12 months is appropriate to recognise and reflect your previous convictions. In his submission, the mitigating factors relevant to you are:
(a) you pleaded guilty prior to trial and this therefore warrants a discount in the range of 20 to 25 per cent;
(b)you are prepared to undergo rehabilitation for your alcohol and substance abuse problems, which you now recognise you have a problem with;
(c) your remorse, as demonstrated by your letter to the Court; and
(d) you were making progress whilst on parole.
[44] Mr Iwikau, I have read carefully the letter that you wrote to the Court, which extends over a number of pages and contains a lot of detailed background information where you have covered pretty much your life since a child right through to recent events. I have taken care to follow what you have said in that and understand it as best I have been able to. I certainly take all that you have said in that into account.
[45] Mr Hamlin accepts, in his submissions, that the imposition of a minimum period of imprisonment is appropriate in your case, but he submits that a minimum period of half the finite sentence should be imposed.
Approach to sentencing
[46] Mr Iwikau, I shall first consider what finite sentence would be imposed if I do not sentence you to preventive detention. Then, I will turn to consider the question of whether or not preventive detention should be imposed.
[47] I follow a standard sentencing process which, first, requires me to establish what is termed the starting point. That requires me to look at the nature and extent of your offending. There is no guideline judgment for what I consider to be the lead
offence, assault with intent to commit sexual violation. However, I shall have regard to broadly similar cases to ensure that the starting point I adopt and apply in your case is in line with what has been adopted in similar comparable cases.
[48] Secondly, I shall adjust the starting point to reflect and have regard to your personal circumstances.
[49] In sentencing you here today, I must apply the purposes and principles of sentencing set out and contained in ss 7 and 8 of the Sentencing Act 2002. The relevant purposes of sentencing here include the need to hold you accountable for the harm you have done to the victim and community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, the harm of your offending; to provide for the interests of the victim of the offence; to denounce your conduct and deter you and others from offending in this manner; to protect the community; and also to assist in your rehabilitation and reintegration.
[50] I also take into account the gravity of the offending; the seriousness of the type of offence; consistency with comparable cases and the need to impose the least restrictive outcome appropriate in the circumstances.
Finite sentence
Setting the starting point
[51] The lead offence is the charge of assault with intent to commit sexual violation.
[52] The Crown submits the extent and nature of your offending is, in and of itself, an aggravating feature. Mr Hamlin submits the scale of your offending is not as serious as the Crown contends. He says the cases to which Mr Williams has referred involve associated violence or the threat of violence which was not a feature of your offending. For example, in R v Keen, the offender ran after the victim and pinned her to the ground with the weight of his body, and covered her mouth with his
hand, which she bit;3 in R v Owen, the victim was pinned onto the bed and could not
3 R v Keen [2010] NZCA 112.
move despite her struggles to escape;4 and in R v Silva, the victim was forcibly detained by the offender.5
[53] I accept that there was no associated violence in your case which, at face value at least, makes your offending appear less serious.6 However, Mr Hamlin’s submission must also be considered in light of the context of your offending, which is that you had misled the victim to believe that you were her partner. That is to be contrasted to the more common circumstances of sexual offending where violence often follows an offender’s attempt to engage in sexual conduct being declined or
resisted by the victim. In your case, any recourse to physical violence did not arise in order to facilitate the offending because the victim did not resist your sexual advances, believing the person who was in bed with her was her own partner.
[54] In my view, notwithstanding that there was no associated violence involved, your offending is nevertheless serious. You were able to achieve a greater degree of violation by reason of the fact that the victim did not protest (because of your deception of her as to your real identity) and in circumstances where you, of course, knew she did not consent. For example, you assisted the victim in undressing herself, you placed your hand between her thighs, and touched her genitals. This can be contrasted to other cases where the violation was interrupted by the presence of
others who took the victim to safety or enabled the victim to escape herself.7
[55] An added aggravating feature of your offending is the deception that you employed to carry out your offending. As I have already said, the victim was
mistaken as to your identity. You, of course, knew and intended this, because when
4 R v Owen [2012] NZHC 499.
5 R v Silva HC Auckland CRI-2003-004-38908, 24 May 2005.
6 See generally, R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [38] “There is violence inherent in any act of sexual violation. There will usually also be some associated violence…
Where the associated violence is more than mild, this is another factor which increases culpability.”
7 For example, in R v Keen, above n 3, the victim was pinned to the ground but the offender fled after the victim began to scream. In R v Owen, above n 4, the offender tried to pull the victim’s
pants down and the victim resisted. The offender was found on top of the victim with his pants
and underwear down. In ERD v Police HC Tauranga CRI-2008-470-22, 9 September 2008, the offender tried to remove the victim’s underwear by pulling it down but the victim managed to escape (though she was then found and forcibly taken into a bedroom). In R v Silva, above n 5, the victim was told to take her clothes off and was grabbed the throat. A security guard intervened.
she asked you to close the bedroom door and you moved to do so, you covered your face so that she would not discover that you were not in fact her partner. It is clear that the only reason the offending did not continue and progress to become even more serious, was because of the victim resisting and calling to her partner for help once she finally realised that you were someone other than her own partner.8
[56] The vulnerability of the victim (being a woman asleep) and your taking advantage of her initially while she was asleep is also an aggravating feature.9
[57] Mr Williams submits that the fact the offending took place in the victim’s home is also an aggravating feature. Though this is a factor which I will deal with when I address the totality of your offending, and therefore I am cautious not to take this factor into account twice, I do recognise that the gravity of your offending is heightened in circumstances where the victim was a stranger to you and she was assaulted in what she rightly believed to be the safety and security of her own
bedroom in her own residence.10
[58] While the victim did not sustain any physical injuries, the emotional and psychological harm you have caused to her cannot be understated.11 This is clearly evident from the contents of the victim impact statement which describes the ongoing impact of your offending upon the victim; for example, that she has been unable to go about her daily life without being concerned about security and the identity of those around her. The impact your offending has had on the victim’s
partner is also of relevance.
[59] Mr Hamlin submits that your offending was opportunistic. That is not to say that it was entirely lacking premeditation. By unlawfully and stealthily entering a private dwelling in the early hours of the morning, in circumstances where you obviously would have known that the occupants were likely to be asleep, you put
yourself in a position where you could opportunistically offend if the situation
8 See R v Keen, above n 3, at [29]. The Court considered the starting point to be inadequate
having regard to the “potential seriousness of the offending”.
9 Sentencing Act 2002, s 9(1)(g).
10 Sentencing Act, s 9(1)(b).
11 Sentencing Act, s 9(1)(d).
presented itself.12 Much of your previous offending has the same modus operandi or method. That, in my view, must also be an aggravating factor.
[60] Overall, on the lead charge of assault with intent to commit sexual violation, I consider that it is appropriate to adopt a starting point of four years’ imprisonment.
[61] To that starting point, I add an uplift of 18 months’ imprisonment to reflect the totality of your offending and, specifically, the burglary offence which involved unlawful entry into a private home in the middle of the night. .
[62] Accordingly, the starting point I would and do adopt for the offences, if I
were to impose a finite sentence, is therefore five years, six months’ imprisonment.
Adjusting the starting point
[63] Turning to your personal circumstances, Mr Iwikau, I start with your previous convictions. Both counsel have submitted that a further uplift in the order of 12 months’ imprisonment is warranted and required in your case to take into account your previous offending. I agree with those submissions. You have a history of recidivist sexual offending and the pattern of your offending involves you unlawfully entering the homes of female victims who are strangers to you. You typically try to conceal your real identity to take advantage of any mistaken belief as to who you really are, or take advantage of the fact that your victims are unaware of your presence in their rooms, and then generally flee the scene when your actual identity is discovered. You are typically and usually intoxicated with alcohol and sometimes cannabis and solvents at the time of the offending. Usually your offending occurs in the early hours of the morning, after your attendance at a party has come to an end. Many of these factors, as I have said, feature in the present offending. They demonstrate that your offending is not out of character and there is a need for a significant and firm deterrent response.
[64] Mr Iwikau, your offending occurred while you were the subject of an extended supervision order. I consider this also to be an aggravating factor justifying
12 I accept there was no pre-planning.
a further three months’ imprisonment because it demonstrates your total disrespect of and disregard for Court orders.13
[65] I do not accept, Mr Iwikau, your counsel’s submission that you have demonstrated genuine and real remorse. Both psychologists, whose reports have been prepared and which are before the Court, were of the view that you tend to minimise the seriousness of your offending and that you are not remorseful. I have, of course, carefully read your letter to the Court wherein you describe the background of your sexual crimes more generally and you say that, in the circumstances, you have been falsely accused. You say that you have “a mixed up life that no one understands”, a violent one, and that you did not mean “to hurt anyone including [your] victims”. However, your letter shows that you do have a tendency to place the blame upon others; including the “system”, your whanau and, on some occasions, even upon the victims and their families. I can understand your general sense of being let down, particularly by reason of the situation and events that you say occurred during your early years. However, there is a distinction and difference between remorse for one’s actions, and self-pity. In relation to this offending, you say the charges laid against you resulted from a set-up, and that someone who knew about your previous offending must have told the victim and her partner to fabricate the allegations against you. That is obviously nonsense and demonstrates a lack of acceptance of responsibility on your part.
[66] That you now recognise that you have a problem with alcohol and solvents does not, in my view, warrant a discount of any sort. Though, for your own sake, Mr Iwikau, I do hope you are genuine about wanting to address these problems which have obviously contributed to your repeated offending since aged 14.
[67] Mr Iwikau, you are, however, entitled to a discount of the sentence otherwise to be imposed by reason of having entered guilty pleas to the charges. But the value to be attributed to your guilty pleas in terms of a discount to the sentence, is to be assessed in light of all the circumstances. You pleaded guilty at a very late stage, being only three days before the trial was due to commence, and in the face of a
strong prosecution case. What is most concerning is that, in your interview with the
13 Sentencing Act, s 9(1)(c).
probation officer, you stated that you initially intended to defend the matter but later decided to plead guilty on the advice of your lawyer. That explanation of your pleas does not indicate acceptance of responsibility for your offending and is not an indication of remorse. In light of the circumstances, the lateness of your pleas, I consider that a discount of 10 per cent is appropriate for your guilty pleas.
[68] Accordingly, applying the starting point of four years, an uplift of 18 months to reflect the overall offending, the further uplift of 12 months to have regard to your previous offending, and a three months uplift for the offending during the extended supervision order, that would in combination yield a total finite sentence of six years, nine months. Then, by applying a 10 per cent discount for the guilty pleas, that would produce a finite sentence of just over six years’ imprisonment. I will take it as six years’ imprisonment.
Minimum period of imprisonment
[69] I now turn to consider whether a minimum period of imprisonment should be imposed. The minimum period of imprisonment refers to the minimum amount of time you will be kept in prison before the Parole Board will consider whether you are suitable for monitored release back into the community.
[70] Counsel are in agreement that a minimum period of imprisonment should be imposed. The Crown has submitted that the Court should impose a minimum period of imprisonment of two-thirds of the finite sentence imposed, whereas your counsel submits that the appropriate minimum period of imprisonment should be half of the finite sentence.
[71] Mr Iwikau, I will explain why I consider it is appropriate to impose a minimum period of imprisonment in the circumstances of your case. That question essentially turns on whether or not I am satisfied that the normal minimum period of imprisonment of one-third of the sentence is insufficient to hold you accountable for the harm done to the community; to denounce your conduct; to deter you or others from committing the same or similar offences; and to protect the community from
you, the offender.14 I have taken into account your conduct both before and after the offence.15 As I have said, your offending calls for firm denunciation and deterrence. Your history of offending is clearly relevant, as it demonstrates a pattern of repeated offending. You are assessed as being a high risk of reoffending – that is, further
sexual offending. Your efforts at rehabilitation have been of short duration, and you do not appear to demonstrate any real or genuine remorse. You have failed to acknowledge or take responsibility for the nature and seriousness of your offending or the effect of your offending upon your victims.16 The need for the community to be protected from the high risk of you committing further offences of a sexual nature is clear and obvious, and this is a point which I will address further shortly.
[72] In determining the length of the minimum period of imprisonment, I have taken into account the circumstances of the offending and the mitigating factors relevant to you. Having regard to those circumstances and the relevant factors and statutory principles, I have concluded that a minimum non-parole period of half the length of the finite sentence is appropriate; that is, half of the finite sentence of six years’ imprisonment that I have mentioned.
Preventive detention
[73] I now turn to consider whether a sentence of preventive detention should be imposed.
[74] 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.17 The assessment of the risk that the offender poses is the central focus of the preventive
detention enquiry.18
14 Sentencing Act, s 86(2).
15 R v Martin CA358/03, 1 March 2004.
16 The principles in s 8 and the aggravating and mitigating factors in s 9 are applicable only to the extent they are relevant to the four purposes in s 86(2); see R v Taueki [2005] 3 NZLR 372 at [55].
17 Sentencing Act, s 87(1).
18 Sentencing Act, s 87(2)(c) and R v C [2003] 1 NZLR 30 (CA) at [5]–[7].
[75] There are three preconditions to the imposition of a sentence of preventive detention:19
(a) the commission of a qualifying offence;
(b) that the offender is aged 18 or older at the time of the offending; and
(c) that the commission of another qualifying offence upon release is, in
the Court’s assessment, considered likely.
[76] Mr Iwikau, it is common ground between your counsel and the Crown that those qualifying criteria exist in your case and that a sentence of preventive detention is therefore available to the Court. But your counsel, Mr Hamlin, has opposed the imposition of this sentence for the reasons set out in his submissions and elaborated on by him this morning.
[77] First, I shall explain why a sentence of preventive detention is available to the Court in your case.
[78] You have been convicted of a qualifying sexual or violent offence and you are over the age of 18 years. The third precondition is whether I am satisfied that you are likely to commit another qualifying offence if you were to be released at the end of any finite sentence I might otherwise impose upon you.
[79] The Court has held that the term “is satisfied” carries no implication of any requirement of proof beyond reasonable doubt, but merely requires the Court to make up its mind on reasonable grounds, or come to a judicial decision on the matter.20
[80] In assessing the likelihood of you committing a further qualifying sexual or violent offence, I have considered, as I am required to do, the reports of the two
health assessors.21 I have before me one report from Dr Jeremy Skipworth (Director
19 Sentencing Act, s 87(2).
20 R v Leitch [1998] 1 NZLR 420 (CA).
21 Sentencing Act, s 88(1)(b).
of Area Mental Health Services (Forensic) and Clinical Director of Regional Forensic Psychiatry Services – Waitemata District Health Board) and the second report from Mr Jim Rensburg (a Registered Psychologist – Regional Forensic Psychiatry Service – also with Waitemata District Health Board).
[81] The Act sets out a list of factors which I must take into account when considering whether or not to impose a sentence of preventive detention.22 I address each of these in turn.
Any patterns of serious offending disclosed by the offender’s history
[82] In terms of your offending history, Mr Iwikau, you have a lengthy list of sexual crimes, the nature of which I have already described. Excluding the convictions in this present case, you have accumulated seven convictions for sexual offending and 14 convictions for offences of burglary. These burglary and sexual offences have often occurred together in a number of incidents, and they demonstrate that your modus operandi, or usual method of offending, involves unlawfully entering private homes to watch, touch or attempt to have sex with female victims (both children and adults) who are persons unknown to you and who are either not aware of your presence, or your actual identity as a stranger to them.
[83] Although I have previously referred to your history of prior offending for sexual offences, it is appropriate that I refer here in this context to some of those circumstances again. I do this by way of illustration only and not exhaustively.
[84] I have already mentioned this incident that occurred in 1991, and just briefly refer again to the facts on that occasion when you were 21 years old. You entered a
32 year old woman’s house; refused to leave when she asked you to leave; and then returned to touch her pregnant abdomen. That was an invasive act of a substantial degree. The effect upon the victim on that occasion was said to be that she was so
concerned she nearly had her baby on the floor. She was terrified.
22 Sentencing Act, s 87(4).
[85] The events in 1995, when you were 25 years old. Again, you entered
premises whilst in an intoxicated state; entering a 15 year old victim’s house at
4:15 am and attempted to sexually assault her in her bed before she was disturbed and called for help. You fled the scene; returned to a party where you had been earlier, and there, got into bed and committed the rape of a woman who mistakenly believed that you were her boyfriend. You admitted your conduct to the Police at the time and commented that in your intoxicated state, you developed thoughts of raping women. You were sentenced on 20 July 1995 to eight years’ imprisonment on the rape charge, a concurrent sentence of two years on the indecent assault charge, and concurrent sentences of six months’ imprisonment on each of the burglary charges.
[86] There was also the incident in 2001, that I have already referred to, again of a similar kind.
[87] In 2003, you were sentenced for one charge of burglary by night and one charge of unlawfully being in a building. The sentencing notes record that on that occasion, you went into the premises while the occupants were asleep at about
12:30 am. One of the occupants called out to ask who was there, after hearing footsteps. You did not reply. She then turned on the light and inquired again, and you left the address. The sentencing Judge noted that whether you took anything or not, the circumstances would be a frightening experience for the person who sought to find out who it was. You were sentenced to two years’ imprisonment on the burglary charge, and convicted and discharged on the charge of unlawfully being in a building. That offending, Mr Iwikau, occurred whilst you were on parole.
[88] More recently, you offended again in August 2005. You were sentenced on
4 November 2005 to concurrent sentences of four years and six months’
imprisonment on each charge, with a minimum period of imprisonment of
34 months. The sentencing Judge noted the two burglaries had “a sinister aspect” to them in that you “entered women’s rooms while they were asleep and made your presence felt, scaring them considerably”.
[89] It is apparent that the sentences that have been imposed upon you in the past have not had any deterrent effect upon you. As Mr Rensburg observes, your sexual
offending has continued in the same unchanged and invasive manner since you committed your first sexual crime in 1985, and you have been in and out of prison for similar offending ever since.
[90] Your counsel submits that there is no evidence in this trend of offending of an escalation in the gravity of your offending, but that it is repetitious. It is my view that irrespective of whether there is any escalation in gravity, the offending of itself is grave and serious, and the repetition of it compounds the gravity of the offending.
The seriousness of the harm to the community caused by the offending
[91] Your offending typically occurs during the night time when your victims are asleep in their homes. The Court has noted that serious and unprovoked attacks on a person at home undermines the safety and sense of security that members of the community are entitled to feel particularly when in their own homes.23 Although there is no physical violence associated with your offending, the nature of your actions makes your offending particularly serious because you have developed a pattern of stealthily entering the bedrooms of women and then the beds of these women in a manner intended to ensure that they do not initially become aware of
your presence, and then by actively taking steps to conceal your true identity so that your victims are deceived and misled to believe that you are their own partner, and someone to be trusted, rather than a total stranger.
[92] Although you told the psychologist, Mr Rensburg, in your interview that you do not see yourself as a violent rapist, he considers that you have no insight that sexual intercourse without informed consent constitutes rape. In my view, the seriousness of the harm caused by your offending is also heightened by the fact that you have a sense of entitlement of, and disregard for, your victims. This is evidenced by the fact that you simply flee the scene once your plans are interrupted or disturbed, and on most occasions, certainly several occasions, you either return to the party you attended earlier the same night or continue to attempt to satisfy your
impulsive urges by entering further homes.
23 R v Komene [2013] NZHC 1844 at [80].
Information indicating a tendency to commit serious offences in future
[93] Both health assessors’ reports unequivocally assess you to be at a high risk of reoffending. In Dr Skipworth’s opinion, the greatest risk in future will be to stranger or acquaintance female victims you target or encounter in the context of burglaries in the early hours of the morning and who are typically asleep in their beds.
[94] I propose to here set out what Dr Skipworth has said in his report in relation to a forecast and assessment of risk. Dr Skipworth employed two diagnostic testing mechanisms and he said this, by reference to the first method he employed:
55.The Static-99 is an actuarial risk assessment instrument used with adult male sexual offenders. It focuses on 10 risk items, which are historical and largely static in nature. This risk assessment instrument was used in assessing Mr Iwikau’s risk of sexually reoffending.
56.Adding to his assessed risk score were his lack of long term live-in relationships, his convictions for non-sexual violence, his seven prior convictions for sexual offending, his number of prior sentencing dates, and his unrelated and stranger victims. These place him in a very high risk category on the STATIC-99. Previous research has shown that as a group, 36% of individuals with this score will sexually reoffend within five years, 45% will reoffend within 10 years, and 52% will reoffend within 15 years of release.
57.Mr Iwikau’s sexual deviation is evident from his past offending with at least eight female victims ranging in age from children (three of his victims were aged 10, 12 and 15) to adults. His offending has occurred throughout his life from at least the age of 16, and is commonly associated with burglary. Several of his offences occurred within months of release from prison.
58.The typical pattern involves Mr Iwikau entering the house of the female victim who is often a stranger to him in the early hours of the morning, finding her in bed, and sexually assaulting her where she is sleeping. He frequently attempts to conceal his identity, or encourage the victim to believe he is their partner. He is often intoxicated with alcohol, cannabis and/or solvents at the time of the offending, and generally flees the scene when his identity is discovered. Many of these features were present at the time of the current offending.
[95] For his part, Mr Rensburg, the psychologist, reaches the same conclusion and, in summarising his opinion, says:
Accounting for both static and dynamic risk assessment measures and noted clinical factors, Mr Iwikau is currently considered to be at high risk of general, violent and sexual re-offending. As far as sexual re-offending is
concerned, Mr Iwikau is likely to re-offend in similar fashion to his index offending in future, i.e. being intoxicated to some degree and to then develop a sexual urge to randomly enter a house and attempt to have sexual connection with a woman while she is asleep or half asleep. Although his victims are likely to be adults, they could be under the age of 16 as he tends to be indiscriminate while offending in this manner.
[96] You, Mr Iwikau, have shown a tendency to deny the offending and to minimise the seriousness of your sexual crimes. For instance, when asked about your previous pattern of offending, you told Mr Rensburg that you were simply drunk on all those occasions and that the Police would not give you a break. In describing your recollection of your previous sexual offending, Dr Skipworth notes your version of events was skewed and unreliable.
[97] Furthermore, your views about, and your hostility towards, women are entrenched. In Mr Rensburg’s opinion, your views have been modelled by you from a young age (reinforced by your need to dominate and physically control your sisters, coupled with the resentment that would have resulted from your mother’s decision to ‘beat you up’ rather than protect you from the abuse of your father). Added to that, your lack of experience in a meaningful romantic relationship at any time and naivety about consensual sexual relationships, in Mr Rensburg’s opinion, has led to you viewing women as sexual objects. Your poor social and intimacy skills has meant that you are unable to grasp the very distressing and frightening effect your actions have had on your victims.
[98] Dr Skipworth is clear that in his view that you are not suffering from a serious mental illness. He considers that you meet the criteria for antisocial personality disorder; which is a type of personality that is characterised by a pervasive pattern of disregard for the violation of the rights of others, occurring since the age of 15. Your character traits include deceitfulness, impulsivity, social irresponsibility and a lack of remorse expressed in relation to your victims, he says. I also take into account Mr Rensburg’s comment that you tend to victimise yourself, engaging in a “life is not fair” type of mentality and thinking.
[99] Mr Iwikau, to date, all your sexual offending has occurred in circumstances where you have been under the influence of alcohol and/or other substances. I take it
that you acknowledge this because you say that you have no recollection of your offending and you are usually intoxicated at the time. I note that your chronic substance abuse also forms the basis of a variety of other offences, including trespass and burglary offences. In Mr Rensburg’s assessment, you have shown resistance in treatment for your alcohol and drug addictions which obviously poses a significant risk factor for future offending.
[100] That you have reoffended within a short period of time after having served a sentence of imprisonment is also relevant. For example, you indecently assaulted two women five months after you were released on parole in August 2000.
The absence of or failure of efforts by the offender to address the cause or causes of the offending
[101] You have been abusing alcohol and other substances from a young age and you have failed to take various treatment efforts seriously.24 The need to address this problem is obvious.
[102] In the health assessors’ views, you cope with social isolation through chronic substance abuse. You told Mr Rensburg that you did not think you had a problem with alcohol, but a problem with people, which is why you drink so often and so much.
[103] In your interview with Dr Skipworth, you were asked whether you would be willing to undergo treatment for sexual offending. You indicated to him that you did not think there was any such need and that the identified risks where not ones which were relevant to you. That, in my view, confirms that future offending would be
likely as you have been wholly unable to identify the need for change.
24 Mr Rensburg’s report provides a summary of numerous inpatient treatment programmes unsuccessfully attended by Mr Iwikau for his addiction problems. For example, in 1986, he spent six months in the Whai Ora Drug Treatment Unit at Tokonui Hopsital where he was exited and re-admitted on four occasions. In 1988, he spent a month in Drug Rehabilitation at Kahunui Trust in Opotiki. In 1993, he spent three months at the Odyssey House in Auckland but was excited because of threats of violence. In 2005, while in Waikeria Prison, he attended four sessions of an alcohol and drug treatment progress. He also attended a number of anger management programmes in prison but described them as “a waste of time”. Mr Rensburg comments that Mr Iwikau was routinely excited from these programmes without completing treatment because he failed to comply with abstinence conditions.
[104] Nevertheless, you say that you are willing to take steps at rehabilitation, and I note the comments of the probation officer as regards such steps as were taken by you in the 18 months prior to your current remand. Such steps as were then taken were, nevertheless, not steps that led to any meaningful progress, in my view.
[105] Dr Skipworth says that your attitude to intervention is not, in his view, indicative of a genuine acceptance that you have a problem which you need to address. He says it is more that you seem willing to “tick a box” if required to do so to advance your position.
[106] While you are not currently ready or motivated for treatment, so far as Mr Rensburg is concerned, it is his view that you may yet benefit from motivational counselling and subsequent treatment in an adult sexual offending programme, as well as a drug treatment programme presented by the Department of Corrections.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[107] I have considered the principle that a lengthy determinate sentence is preferable if it can provide adequate protection for the community. This principle is in line with the more general sentencing principle that the Court must impose the least restrictive outcome that is appropriate in the circumstances.
[108] However, the weight I attach to this factor must be balanced with other s 87(4) factors which I have already considered.
[109] Mr Iwikau, in light of all the factors I have addressed, I am satisfied that you are likely to commit another qualifying offence if you were to be released at the end of any finite sentence I might impose on you.
Whether to impose a sentence of preventive detention
[110] Mr Iwikau, all the statutory criteria to qualify for a sentence of preventive detention have been met and are present in your case. However, the imposition of preventive detention remains a discretionary assessment for the Court to make. That is the matter that I now address.
[111] The above factors satisfy me that a finite sentence will not protect the community in an effective and meaningful way. This type of finite sentence, as well as the subsequent imposition of an extended supervision order, has failed to deter you or prevent you from committing further serious sexual offending.
[112] Your counsel submits that a finite sentence ought to be imposed because, as supported by the comments of the probation officer, you were making good progress in recent times. However, the point is that you resorted to a typical pattern of offending and this, to me, confirms that your path to recovery and reform must involve a conscious and longstanding commitment by you to change which is not evident in anything before the Court. A brief period of progress is not enough to achieve your rehabilitative needs, nor is it enough to reduce the concerns that the Court has that you pose a high risk of reoffending. What is more, your previous efforts at rehabilitation have not been genuine in the sense of you being committed to them, according to the views of both health assessors, and you are not yet, in their view, motivated to change.
[113] As I have already said, you have not demonstrated genuine remorse. Mr Hamlin submits your entry of guilty pleas favours the imposition of a finite sentence. For the purposes of determining whether to impose preventive detention for the protection of the public, I consider that little weight can be attached to your guilty pleas, particularly because you have indicated that this was not based upon an acceptance of responsibility but rather other factors.
[114] Finally, Mr Iwikau, you are already subject to a 10 year extended supervision order which expires in February 2019. Your counsel has referred to this in his submissions. For myself, I cannot see how an already existing extended supervision order, which you have breached on nine occasions, it is said, within a period of four years, should incline the Court to tip the balance of its discretion away from being in a position to impose a sentence of preventive detention. In my assessment, the existence of the extended supervision order, and particularly the many breaches of it, show, first, your resistance to the monitoring and controlling aspects of administrative sanctions and, secondly, that the imposition of the extended
supervision order has not been a successful means of managing your reintegration into the community or of protecting the community more generally.
Sentence
[115] Mr Iwikau, in my view this issue is not finely balanced at all. Would you please stand.
[116] For the reasons I have mentioned, I am satisfied that I should impose a sentence of preventive detention. However, a sentence of preventive detention does not mean that you are irredeemable.
[117] I impose a minimum term of imprisonment of five years as required by s 89(1) of the Sentencing Act. When that minimum period of imprisonment expires, your response to any treatment undertaken can be assessed, and consideration can be given to the appropriate steps forward at that time.
[118] On the charge of assault with intent to commit sexual violation, I impose a sentence of preventive detention with a minimum non-parole period of five years’ imprisonment. On the charge of entering a building without authority with intent to commit an imprisonable offence, I impose a concurrent sentence of 12 months’ imprisonment.
[119] You may stand down.
Davison J
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