R v K
[2023] NZHC 726
•4 April 2023
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAMES, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2020-070-2507 CRI-2019-087-156
[2023] NZHC 726
THE KING v
K
Hearing: 4 April 2023 Appearances:
B R Smith for Crown
A F Rickard-Simms for Defendant
Sentence:
4 April 2023
SENTENCING REMARKS OF JOHNSTONE J
Solicitors:
Crown Solicitor, Tauranga
R v K [2023] NZHC 726 [4 April 2023]
Introduction
[1] Mr K, at 54 years of age, you appear for sentence following two jury trials conducted in the Tauranga District Court.
[2] The jury at the first trial, held in July 2022, found you guilty of three offences of sexual violence committed on a single day in 1991 or 1992, against a 25-year-old woman. At the time, you were 22 or 23 years old. The offences, each of which at the time carried maximum sentences of 14 years’ imprisonment,1 were of:
(a)sexual violation by rape;2
(b)sexual violation by unlawful sexual connection;3 and
(c)abduction of a woman or girl for sexual intercourse.4
[3] The jury at your second trial, held in August 2022, found you guilty of 14 offences. These offences were committed against a first victim during the period of eight years from 2003 to 2011, when she was from seven to 13 years old, and against a second victim during the period of five years from 2013 to 2018, when she was from nine to 14 years old. The 12 offences against the first victim, all charged representatively, were:5
(a)four of indecency with a girl under 12 years;6
(b)four of doing an indecent act with a young person under 16 years;7
1 This offending was particularly historic, occurring sometime between 19 June 1991 and 7 April 1992. He is entitled to be sentenced for those charges on the basis of the following maximum sentences which reflect the law at that time.
2 Crimes Act 1961, ss 128(1)(a) and 128B(1). Maximum penalty: 14 years’ imprisonment.
3 Sections 128(1)(b) and 128B(1). Maximum penalty: 14 years’ imprisonment.
4 Section 208. Maximum penalty: 14 years’ imprisonment.
5 Mr K’s offending was a mixture of historic and current. For each charge, the year range and applicable sentence will be noted.
6 Section 133(1)(b). Maximum penalty: 10 years’ imprisonment. Between 14 January 2003 and 12 July 2008.
7 Section 134(3). Maximum penalty: seven years’ imprisonment. Between 13 July 2008 and 14 January 2011.
(c)three of sexual violation by unlawful sexual connection;8 and
(d)one of sexual violation by rape.9
[4]The two offences against the second victim were:
(a)one of sexual violation by rape;10 and
(b)one, charged representatively, of indecent assault on a young person.11
[5] Upon your convictions in the District Court on the above offences, Judge W Lawson considered that a sentence of preventive detention may be appropriate. You were accordingly transferred to this Court for sentence in accordance with s 90 of the Sentencing Act 2002, his Honour formally notifying you that a sentence of preventive detention will be considered and directing the preparation of reports from two appropriate health assessors.12
[6] The health assessor reports have been received. I will describe them later in these remarks. Your lawyer, Mr Rickard-Simms, has prepared submissions which take the health assessor reports into account. On your behalf, he opposes a sentence of preventive detention, submitting that a finite sentence of imprisonment coupled with a minimum period of imprisonment, would satisfy the purposes and principles of the Sentencing Act, noting the potential for an extended supervision order to be imposed upon your release.
[7] For the Crown, Mr Smith submits that a sentence of preventive detention is appropriate.
8 Sections 128(1)(b) and 128B(1). Maximum penalty: 20 years’ imprisonment. Between 14 January 2003 and 14 January 2011.
9 Sections 128(1)(a) and 128B(1). Maximum penalty: 20 years’ imprisonment. Between 14 January 2003 and 14 January 2011.
10 Sections 128(1)(a) and 128B(1). Maximum penalty: 20 years’ imprisonment. Between 19 April 2013 and 18 April 2015.
11 Section 134(3). Maximum penalty: seven years’ imprisonment.
12 R v [K] [2022] NZDC 23307.
[8] I will turn to the question whether you should be sentenced to preventive detention once I have determined what would otherwise be the appropriate finite sentence.
Approach to finite sentencing
[9] The usual process for finite sentencing involves two steps.13 First, a starting point is determined in respect of the offending itself. This involves considering the offending, and identifying its aggravating and mitigating features. Second, that starting point is adjusted up or down to take into account the offender’s personal circumstances. In this case, I will determine the appropriate starting point for the offending against each of the three victims, before arriving at an overall starting point taking the totality of your offending into account. I will then apply a global adjustment for your personal circumstances to arrive at an overall, (notional) finite sentence.
[10] To provide a foundation for that two-step process, I will describe your offending and your extensive criminal history. Then I will outline some of the observations various report writers have made about your personal circumstances, and I will mention the material I have received dealing with the impact of your offending on your victims.
The offending
[11] As to your offending, you do not accept the Crown evidence offered at your trials, or your guilt in respect of the above offences. But as Mr Rickard-Simms acknowledges, the summaries of fact filed in each proceeding fairly encapsulate that Crown evidence. Accordingly, the summaries set out facts disclosed by evidence at your trials, and I accept them for the purpose of supplementing the facts proved by the two juries’ findings of guilt, in accordance with s 24 of the Sentencing Act.
Ms P
[12] Your first victim, Ms P, was 25 years old at the time of your offending, which took place sometime in the period from 19 June 1991 to 7 April 1992. She had been
13 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
in relationship with one of your family members. You were 22 or 23 years old and had recently been released from prison sentences for aggravated robbery and assault on a prison officer.
[13] One day in that period you drove to, and approached Ms P in, a carpark in Whakatāne. You told her that you “wanted her”. You then grabbed Ms P by the hair and dragged her to her car, putting her in the back seat. There, you punched her in the face a number of times. Then you drove her to a house in Ruatoki. No one else was home. You dragged Ms P into the lounge and told her to suck your penis. Being scared of you, she complied. You then pushed Ms P onto a couch and inserted your penis into her vagina. After a short time, you got off Ms P and you made her suck your penis again. Then you dragged Ms P back to her car and drove it to Tāneatua, where you got out and walked away.
T
[14] T is your niece. Over the period of eight years from 14 January 2003 to 14 January 2011, T’s parents regularly entrusted you with caring for her and her siblings, dropping them at your home around three nights a week. T was aged from seven to 13 years old during this period. You were aged from 33 to 41 years old. The period commenced after you had been released from prison sentences imposed for raping, sexually violating, and threatening a 24-year-old woman, at and following a social gathering in February 1996. The basis on which T’s parents chose to trust you with their children is not clear.
[15] Your offending subjected T to years of sexual abuse. You took essentially every opportunity to offend, whether it was day or night. I can only summarise your conduct. T’s consequential suffering has been and will continue to be extreme. My summary of your conduct is unlikely to reflect the depths of her suffering.
[16] You would force T to perform numerous degrading acts. You ordered her to touch your penis. If she refused, you would punish her by making her weed the garden. You forced her to massage your feet, and, in the process, you would rub your feet against her vagina.
[17] T would share a bed with her siblings. On occasion you would carry her away, strip her naked, and sexually abuse her. She would resist and try to scream, but you would put your hand over her mouth.
[18] You forced her to perform oral sex on you. Sometimes this was described as a punishment for her failure to weed the garden or to pick up dog faeces. Sometimes you would offer money for oral sex.
[19] You sucked and licked her breasts and vagina. You penetrated her vagina and anus with your penis, which was painful and would cause her to bleed. At other times you would follow T and her siblings and masturbate while watching them.
[20] You did your best to prevent T and her siblings from reporting your abuse. You told them if they screamed, ran away or complained that you would hurt them or commit further sexual acts. You told them that you would hurt or kill their loved ones if they told anyone.
[21] Sadly for T, she tried to tell adults other than you about the abuse, but she was told to be quiet. The abuse only stopped after, at the age of 13, she ran away to a different city to live there on the streets.
J
[22] Within a few years, you commenced your offending against another niece, T’s sister, J. Between 19 April 2013 and 19 April 2018, she would go to your house after church to wait for her mother to collect her. J was aged nine, moving through to 14 years old.
[23] On a number of occasions you touched, hugged and kissed J. You also touched her bottom numerous times over her clothing. She did not want this to happen and found it “disgusting”.
[24] On one specific occasion in 2013 to 2015, you forcibly and violently raped her. You went to your bedroom and called for J to join you. When she complied, you grabbed her by the arms and forced her onto the bed. She curled up at the top of the
bed, but you dragged her to you. You used your legs to spread hers and then you undressed her. You climbed on top of her, and she screamed for help. You covered her mouth and stopped the screams. You inserted your penis into her vagina. Your son, likely overhearing the screams, entered the house and came into the bedroom. When he arrived, you threw J onto the floor. She dressed herself and ran from your house. J was sore but did not require medical treatment.
Personal circumstances
Criminal history
[25] Your criminal history is extensive. You have a total of 31 previous convictions (including 10 Youth Court convictions). Most of these previous convictions date back to when you were a young man. There are many for violence. More recently, in 2016, you were convicted on a charge of injuring with intent to injure.
[26] You do have convictions for prior sexual offending. In 1996, after your offending against Ms P and before your offending against T and J, you were convicted of unlawful sexual connection, rape and threatening to kill. These convictions arose from a single incident involving a victim who I will refer to as X. I have read a summary of your offending against X. It was a serious and violent rape. It adds further detail to the picture of your pattern of serious sexual offending.
PAC reports
[27] I have three PAC reports. The reports note your difficult upbringing and substance abuse problems, but I will not repeat those as they cover the same ground as the expert health and cultural reports. The most recent report, dated 14 November 2022, is the most helpful because it considers both sets of convictions and the possibility of preventive detention. The report helpfully summarises the previous interventions and treatments you have had to address the causes of your offending.
[28] The report writer advises that you were assessed by a psychologist in 2000 while serving your term of imprisonment for your 1996 offending against X. You were assessed as at medium risk of sexual recidivism. Then between 1996 and 2001 you
attended the Māori Tu Pae programme (then called the Māori Therapeutic Programme), which is a programme directed at addressing the causes of general offending. While on parole you attended counselling appointments to address alcohol, drugs, and anger management at Tuhoe Hauora for about eight months.
Health reports
[29] The first health assessor report is from Dr Shailesh Kumar, a consultant psychiatrist.
[30] In his report, Dr Kumar outlines your upbringing and background. You were the 10th child of 13. You grew up in an abusive household and were the subject of beatings from your father. From early on, you began acting up in school, playing truant and beginning to offend in the manner reflected in your criminal history. You told Dr Kumar that you began drinking when you were a toddler and were smoking cannabis from 10 years old. At 15 you were sent to a ‘boys’ home’ for your role in a dangerous driving causing death offence. Following this you continued to offend, often engaging in serious violence or on occasion sexual offences. You spent significant periods in penal institutions. Despite this, you have had three significant long-term relationships and have eight children. Notably, your offending against T and J occurred whilst you were in committed relationships.
[31] Dr Kumar looked to several factors in your past that contribute to your present and future risk. The most relevant factors to your future risk are your “dysfunctional childhood, childhood onset conduct disorder, poor educational, marital and vocational history, alcohol and substance use problems, history of prior sexual offending, intra- and extra-familial offending, previous conviction for non-sexual physical violence, offending against unrelated victims, stranger victims and unstable marital history.”
[32] Concerningly, Dr Kumar reports that you still deny your offending and insist that the victims have lied. These thought processes are described as “cognitive distortions.” Dr Kumar remarks that your history of offending, particularly your abuse of power and trust in relation to your younger victims, your inability to create realistic plans, and your generally negative attitude to intervention are all indicative of
psychopathy. Dr Kumar’s opinion is that you are unlikely to voluntarily engage with therapy.
[33] Dr Kumar concedes that it is difficult to be particular about your risk, and your risk profile may change if you were to properly engage with therapy. Your advancing age may be a protective factor. Further, Dr Kumar suggests you have had significant periods between your periods of sexual offending and that your pattern of offending is not a “high density” of sexual offending. With respect, and in respect of that suggestion by Dr Kumar, I note that your periods of sexual offending were interrupted by periods of imprisonment. Otherwise in my view there is a real density to your sexual offending over decades.
[34] Nevertheless, Dr Kumar expresses strong reservations about your ability to engage in treatment. He notes that you do not have underlying mental illness that may be treated and therefore addressing the root of your offending may be challenging. Your offending also occurred while in intimate relationships which suggests that this was not a protective factor. Finally, in Dr Kumar’s opinion you lack empathy, particularly for your vulnerable victims. Empathy can be important in effective therapeutic intervention. Dr Kumar concludes you are at a high risk of sexual re-offending.
[35] The second health assessor report is by Dr Neeshi Singh-Pillay, a registered counselling psychologist, who also concludes that you are at a high risk of re-offending.
[36] Dr Singh-Pillay noted that during your interview you were polite but appeared hesitant. As with Dr Kumar, you continued to maintain your innocence and insist that the victims have lied.
[37] Dr Singh-Pillay covered much of the same material in relation to your background as Dr Kumar so I will only address the notable differences. First, your history and self-reporting indicated that you had literacy difficulties. However, during your interview you successfully answered complex questions and Dr Singh-Pillay formed the view that you are far more astute than you portray. Second, during your
time at the borstal following the dangerous driving causing death offence, you became involved with the Mongrel Mob. You reported that you began to distance yourself from the gang in 2001. However, there is evidence to suggest that your involvement has persisted.
[38] Dr Singh-Pillay’s formulation of your offending is similar to Dr Kumar’s. The drivers of your offending stem from your upbringing. You appear to be motivated by deviant sexual preferences which are characterised by a desire to control your victims. This likely stems from the lack of control you experienced in your childhood. Your poor early attachments, trauma, mistrust of others, cognitive distortions, lack of insight, deviant sexual arousal and preoccupation, sense of entitlement, and need for power and control would all have likely contributed to your sexual offending.
[39] Dr Singh-Pillay also utilises two psychological instruments to determine your future risk. First is the Automated Sexual Recidivism Scale-Revised (ASRS-R). Under the ASRS-R, your predicted rate of sexual recidivism is two times greater than the typical adult male with a current sexual conviction in New Zealand. Second is the Violence Risk Scale: Sexual Offence version (VRSSO). Under VRSSO, you are assessed in the well above average risk category. The estimated chance of sexual reoffending within five years is at 35.1 per cent and at 10 years 49.2 per cent. Additionally, on the sexual deviancy subscale you are on the 89th percentile and the 85th percentile for the criminality sub-scale total dynamic score.
[40] The only protective factors Dr Singh-Pillay observed are your apparent intelligence and the support you receive from your sisters. However, he notes that your sisters originally assumed your innocence, and their past support did not prevent the offending.
[41] In conclusion, both experts consider that you are at a high risk of reoffending within five years. Dr Kumar has serious concerns that you will be able to effectively engage with treatment. Both experts consider there are few if any protective factors that lower your risk of further offending.
Cultural report
[42] Through Mr Rickard-Simms, you have provided a cultural report from Vanessa Moodie. This report confirms your difficult and traumatic upbringing. It covers much of the same ground as the health reports so I will only discuss the important details.
[43] Your father was plainly abusive. For example, he had a ‘smorgasbord’ of items to hit and beat you with. You were exposed to gang activities from an early age, with your uncles being patched members of the Mongrel Mob. You became a patched member when you were 16 years old.
[44] The report also outlines that you were taken from your whānau and placed in state care at the age of eight. No doubt you experienced significant cultural dislocation and emotional turmoil being removed from your whānau. Unfortunately, once you were placed in state care you report that you were sexually and physically abused by the very people who were meant to care for you. You were similarly abused while in the care of family when allowed to stay with them on weekends. You moved from state care straight into youth prison. The remainder of your youth was spent going in and out of various penal institutions. Given your upbringing it is no real surprise that you have never been in paid employment. You remained impoverished.
Victim impact statements
[45]I turn now to the impact of your offending on your victims.
[46] I have read the victim impact statement provided by Ms P. You have had a profoundly negative impact on her life. Despite over 30 years passing she is still affected by trauma of what you did to her. She has understandably struggled with dealing with that trauma in a healthy way, taking refuge in substances and anger. As a consequence, she has found it difficult to maintain employment. You should try to understand the devasting impact your actions have had on Ms P’s life.
[47] I do not have a victim impact statement from either T or J. I do have and have read a statement from their father. He outlines the terrible suffering your offending
has caused them. He says they want to move on with their lives putting this saga behind them, in this way explaining why neither chose to provide a statement of their own.
[48] Instead of a victim impact statement from T, I rely on her police interview produced in evidence at your trial to confirm the negative impact you have had on her. T was asked how she felt during your offending. She said:
(a)that your abuse made her feel “[s]cared [and] [w]orthless;”
(b)that having to go back to your house knowing she would be abused would make her cry and feel sad; and
(c)that your threats of violence if she told anyone what was happening “broke [her] heart [and] shattered [her].”
[49] T has also talked about escaping your abuse. She fled to Auckland. She was only 13, but such was the impact of your offending on her she felt she had to separate from her family. She had no support. Once in Auckland she was living on the streets and had to stay with strangers. Your offending had a devasting impact on her and rendered her homeless as a child.
[50] As for the impact of your offending on J, I infer she has suffered similarly to your other victims.
Sentence starting points
Offending against Ms P
[51] I turn to determine the appropriate starting point for your offending against Ms P. In their written submissions, counsel addressed themselves to the current guideline judgment for sexual violation sentencing, R v AM (CA27/2009).14 I will return to that case later, when I consider your offending against T and J. But, as
14 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
acknowledged by them this morning, for your offending against Ms P, I am required to apply the sentencing approach that would have applied when you committed these offences, sometime during June 1991 to April 1992.15
[52] Indeed, for this offending at least, I cannot impose a sentence of preventive detention. That is because the then law required that you had committed a qualifying offence before committing offences which might render you liable to that sentence.16
[53] The guideline judgment applicable to your offending against Ms P would have been R v Clark.17 In that case, decided in 1987, the Court of Appeal adopted the English starting point for rape in a contested case of five years’ imprisonment. In another Court of Appeal case, R v A18, decided in 1994, the Court of Appeal reviewed Clark and a number of other cases and observed that in fact the average starting point for rape was somewhat higher. Taking into consideration R v A, your rape offending in respect of Ms P would have attracted a preliminary starting point of five years and seven months’ imprisonment, prior to adjustment for any relevant aggravating features, and any additional offending. In my view, the offending against Ms P was seriously aggravated by additional violence and indecency, kidnapping, and its prolonged nature (albeit over the course of a single event).19 Your conduct would have instilled absolute terror. No doubt Ms P would have feared for her life after you abducted and beat her. As I have mentioned, the episode caused life-long damage. Once I factor in these aggravating features, I come to a starting point for this offending of 10 years’ imprisonment.
15 Sentencing Act, ss 6 and 153; Criminal Justice Act 1985, ss 4 and 75; and R v Mist [2005] NZSC 77, [2006] 3 NZLR 145 at [107] and [111]–[114].
16 Criminal Justice Act, s 75(1): [t]his section shall apply to any person… having been previously convicted on at least one occasion since… of a specified offence, is convicted of another specified offence, being an offence committed after that previous conviction” (emphasis added).
17 R v Clark [1987] NZLR 380 (CA).
18 R v A [1994] 2 NZLR 129 (CA).
19 When delivering my sentencing remarks, I erroneously referred to use of weapons as a further aggravating factor. Counsel for the Crown alerted me to this error, which I acknowledged as such. I confirmed my view that the appropriate starting point for the offending against Ms P is one of 10 years’ imprisonment.
Starting point for offending against T
[54] Turning to the starting point for your offending against T, the guideline judgment as I have indicated for sexual violation is R v AM (CA27/2009).20 In that case the Court of Appeal outlined a series of four bands to guide the setting of starting points. The relevant band for your offending against T is band four, for which in most cases the starting point will range between 16 and 20 years’ imprisonment. Band four is appropriate for:21
… offending… [which] is that of repeated rapes of one or more family members over a period of years… . Offending of this nature, especially that involving children and teenagers will attract starting points at the higher end of this band…
[55] In their written submissions, both counsel approached sentencing for your offences against T and J on a collective basis. That approach is understandable given the similar nature of your offending against your nieces, and the reference in R v AM to “one or more family members.” However, I consider that in this case it is necessary to consider the appropriate starting point for each victim individually, because the offending was separated by time. You only started to offend against J when that opportunity presented itself in 2013, around two years after your offending against T came to an end in 2011 because she ran away.
[56] Mr Smith submits that your offending falls at the top end of band four. Mr Rickard-Simms submits that your offending is either at the top end of band three or the bottom of band four. He argues that a starting point of 16 years would be appropriate.
[57] In my view, your offending in respect of T falls squarely within band four. The following aggravating features are all present to a significant degree:
20 R v AM (CA27/2009), above n 14, at [125]–[126]. Despite the offending against T occurring in part before R v AM being released it applies “to all sentencing taking place after 31 March 2010”.
21 At [109].
premeditation;22 vulnerability of the victim;23 violence;24 harm to the victim;25 scale/duration of offending;26 breach of trust;27 and degree of violation.28
[58]A starting point of 18 years’ imprisonment is warranted.
Starting point for offending against J
[59] The relevant R v AM band for your offending against J is band two, in which starting points range between seven and 13 years’ imprisonment. Band two is appropriate for:29
… a scale of offending and levels of violence and premeditation which are, in relative terms, moderate. This band covers offending involving a vulnerable victim, or an offender acting in concert with others or some additional violence. It is appropriate for cases which involve two or three of the factors increasing culpability to a moderate degree.
[60] Your offending against J involves only one charge of sexual violation by rape. However, your offending is aggravated by: indecent assaults over several years;30 the vulnerability of the victim;31 and breach of trust.32 A starting point of 10 years’ imprisonment is appropriate.
Overall starting point
[61] Having outlined appropriate starting points in relation to each of the three sets of offending separately, I turn to assess an overall starting point. Your offending against all three victims was separated in time and circumstance. Frequently, where offending is separated in this way, you would serve cumulative sentences, meaning you serve one sentence in its entirety before you start your next sentence. However, that would result in a very lengthy sentence, and I must make an adjustment to reflect
22 At [37].
23 At [42].
24 At [38]–[41] (arguably this factor may only be present to a moderate degree).
25 At [44].
26 At [47].
27 At [50].
28 At [52].
29 At [98].
30 At [47].
31 At [42].
32 At [50].
overall totality. Standing back and reviewing the overall effect of your sentences I consider that your notional starting point should be one of 24 years’ imprisonment.
Personal aggravating and mitigating factors
[62] Mr Smith submits that your previous criminal history warrants an uplift, particularly your previous rape conviction. I agree. Your offending against T began not long after you finished serving a sentence for raping and committing other offences against X. There is an obvious and deplorable pattern, comprised of your offending currently for sentence when considered alongside your past convictions. In my view, an uplift of one year, imposed in respect of your offending against T and J, to account for those previous convictions would be appropriate.
[63] Sentencing principles allow of a discount for credible personal background factors causing impaired choice and, therefore, diminished moral culpability.33 I do infer that a systemic background of familial dysfunction and cultural dislocation, and the sexual abuse you were a victim of, has substantially contributed to your present offending. As I have indicated earlier, those who were meant to care for and protect you utterly failed. I consider that your past is causally linked to your present offending.
[64] Discounts of 15 per cent routinely are made under this head, with room for more in appropriate circumstances.34 Mr Rickard-Simms submits that such a discount is appropriate. I agree and will apply a deduction from the starting point for sentence of 15 per cent.
Overall nominal finite sentence
[65] After adjusting your sentence for totality and applying the relevant uplift and discount your nominal finite sentence would be one of 21 years and four months’ imprisonment. Absent a sentence of preventive detention, I would impose a sentence
33 Berkland v R [2022] NZSC 143; Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [161]–
[162]; Poi v R [2020] NZCA 312 at [32]–[51]; and Carr v R [2020] NZCA 357 at [55].
34 Tipene v R [2021] NZCA 565 at [22]–[23], citing Carr v R, above n 33, at [65]–[66].
of that length by imposing a combination of cumulative, as well as concurrent sentences.
Minimum period of imprisonment assuming determinate sentencing
[66] Mr Smith submits that I should impose a minimum period of imprisonment, that is an “MPI”, of 50 per cent. Mr Rickard-Simms agrees.
[67]The relevant principles that justify the imposition of an MPI are those of:35
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
[68] Each of these factors point in favour of imposing an MPI greater than the ordinary non-parole period. The harm you have inflicted from your decades of sexual offending is enormous. The Court must hold you to account, denounce your appalling conduct, and deter others from offending in this way. The standard one-third MPI is plainly insufficient. The maximum MPI that can be imposed is the lower of either two-thirds of the full term of the sentence, or 10 years in respect of any single sentence. Your counsel accepts the latter is appropriate. If you were made subject to a finite sentence, that would be the MPI I would impose.
Conclusion in respect of offending against Ms P
[69] For your offending against Ms P, I will impose a sentence of eight years and six months’ imprisonment, concurrently with the sentences imposed for your offending against T and J. I have arrived at this sentence by applying a 15 per cent discount for personal circumstances to the 10-year starting point I mentioned earlier. You will be required to serve a five-year MPI in respect of that offending.
35 Sentencing Act, s 86(2).
Indeterminate sentence
[70] Now I can turn to the question whether to impose a sentence of preventive detention in respect of your offending against T and J. Your numerous sexual offences are all individually qualifying. You are obviously over the age of 18. Preventive detention may be imposed if in my view you are likely to commit another qualifying sexual or violent offence if released at the sentence expiry date of the nominal sentence I have outlined above. In that event, in deciding whether to impose preventive detention, I am required to take into account the factors set out in s 87(4) of the Sentencing Act.
[71] The Court of Appeal has confirmed that preventive detention is not to be regarded as a sentence of last resort.36 It is not a sentence that can only be imposed after other sentencing options have been tried without success, although in your case you have previously been subject to terms of imprisonment which have been followed by further offending. Your past offending has been both violent and sexual.
[72]The factors I am required to take into account are:
(a)any pattern of serious offending disclosed by your history;
(b)the seriousness of the harm to the community caused by your offending;
(c)information indicating a tendency to commit serious violent offences in the future;
(d)the absence of or failure of efforts by you to address the cause or causes of the offending; and
(e)the principle that a lengthy finite sentence is preferable if it provides adequate protection for the community.
36 R v C [2003] 1 NZLR 30 (CA).
[73] In addition, the Court of Appeal has reaffirmed that in sentencing the Court should carefully consider whether an ESO following a lengthy determinate sentence would suffice in lieu of a sentence of preventive detention.37 In finely balanced decisions, an ESO may tip the balance in favour of not granting preventive detention.
Any pattern of serious offending disclosed by your history
[74]Mr K you undoubtedly have a pattern of serious offending.
[75] Your sexual offending dates back to 1991. Since then, you have consistently committed serious sexual offences. Beginning in 1991, when you raped Ms P, you offended only five years later against X. You were sentenced seven years and six months’ imprisonment. You were released from prison sometime in the early 2000’s. Not long after your release you began your eight-year long abuse of T. Your offending against T only stopped once she fled: not because of any change of heart on your part. Around two years later, you moved on to J and you abused her until 2018.
[76] In the roughly 32 years since your sexual offending started you have spent most of it committing sexual offences, particularly against T and J. The breaks in your offending were largely attributable to external factors and not your own choice, such as prison or T fleeing from your abuse.
A tendency to commit serious offences in the future
[77] You have been assessed by a psychiatrist and a psychologist. Both have identified that you have several risk factors that indicate you will offend again in the future. I accept that these expert opinions agree you possess a tendency to commit further sexual offences in the future. I similarly take that view.
Seriousness of the harm to the community
[78] Your offending has caused serious harm to your victims. Ms P has suffered for decades for what you did to her. You robbed T and J of their childhoods and you
37 Jesen v R [2019] NZCA 581 at [69], citing to R v Mist, above n 15, at [101] and R v Parahi [2005] 3 NZLR 356 (CA) at [87].
subjected them to years of abuse. The harm to the community done by your offending is very high.
Absence of failure of efforts to address the cause
[79] You have had relatively little engagement in rehabilitation programmes, particularly those targeted at sexual offending. However, this can, in part, be attributed to your own choices. Dr Singh-Pillay notes that you were offered treatment to address the causes of your sexual offending after being sentenced for your 1996 rape. Instead, you opted to attend a programme not suited to your specific needs. When interviewed about what you learned you could not identify any lessons. Both experts agree you demonstrate an opposition to psychological intervention and would not be likely to engage. Further, you have continued to deny that you did anything wrong, and insist the victims are lying. I recognise that you have not yet been forced to engage and undertake specific psychological and rehabilitative intervention. However, based on your choice not to engage appropriate treatment when offered, the expert opinions that you are not likely to engage with treatment and your continuing denial of your offending, I conclude that you have failed to address the cause of your offending.
Principle that lengthy determinate sentence preferable
[80] As I have determined you are facing a very lengthy determinate sentence for your offending. Unless you satisfy the Parole Board that you are not at risk to community, you would serve the entirety of your sentence in prison. Further, you would also be likely to be subject to an extended supervision order upon release. Therefore, I must consider your risk of further offending upon your eventual release in your early 70s. This factor is clearly in your favour.
Consideration
[81] Standing back, as the Court must do, and determining how to exercise its discretion in light of the above considerations, the ultimate issue is whether the ongoing risk you pose to the safety of the community can only be addressed by the imposition of preventive detention.
[82] I bear in mind that the expert reports have only attempted to predict your future risk for the next 10 years, nevertheless in light of all of the material I have reviewed I do consider there is a risk at the conclusion of your finite sentence, 20 plus years hence, of you committing further similarly qualifying sexual offences.
[83] Mr K, in my judgment the causes of your offending are deep-seated within you. I consider you to be at high risk of reoffending. You are in my view “likely to commit another qualifying sexual offence… upon your finite sentence expiry date”.38
[84] I am also satisfied that none of the matters in s 87(4) of the Sentencing Act can displace this conclusion and, in fact, many of those factors support it. Your risk cannot be met by a lengthy finite term even bearing in mind the possibility of an extended supervision order on your release. You have already been convicted and served a lengthy sentence for rape. Even though you may be in your 70s when your final sentence is served, I find it highly unlikely another lengthy determinate sentence will change the risk you pose, especially given your obvious reluctance and opposition to intervention.
[85] You appear to have little or no insight into your offending. You lack empathy for victims and the people you harm. Your offending and the risk you pose to the community is such that a sentence of preventive detention is required.
Minimum period of imprisonment
[86] Such a sentence requires the imposition of a minimum of five years’ imprisonment.39 However, I must impose a longer MPI if I am satisfied that such an increase is necessary to reflect the gravity of the offence; or a longer MPI is required for the safety of the community in the light of the offender’s age and the risk posed by the offender to that safety at the time of sentencing.40
[87] In light of the factors I have considered individually, I consider both grounds are met. I will impose a minimum period of imprisonment of 10 years.
38 Sentencing Act, s 87(2).
39 Section 89.
40 Section 89(2).
Imposition of sentence
[88] Mr K, please stand. For your charges of sexual violation by rape; sexual violation by unlawful sexual connection; and abduction of a woman or girl for sexual intercourse in relation to Ms P you are sentenced to eight years and six months’ imprisonment with a five-year minimum period of imprisonment. On each of the charges related to offending against T and J, you are sentenced to preventive detention, with a minimum period of imprisonment of 10 years. All sentences to be served concurrently.
[89]Stand down.
Johnstone J
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