R v Kumar HC Auckland CRI 2008-092-18963
[2010] NZHC 442
•19 March 2010
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI 2008-092-18963
THE QUEEN
v
PRAVIN FIA HARI PRASAD KUMAR
Hearing: 19 March 2010
Appearances: A McClintock and F Cuncannon for Crown P Kaye for Kumar
Judgment: 19 March 2010
SENTENCING REMARKS OF ALLAN J
Solicitors:
Crown Solicitor Auckland P Kaye, Auckland
R V KUMAR HC AK CRI 2008-092-18963 19 March 2010
[ 1 ] Mr Kumar you appear for sentence this morning, having been found guilty by
a jury on 13 October 2009 on two counts of kidnapping, two of sexual violation by rape, one of male assaults female and one of indecent assault. The maximum penalty for rape is 20 years imprisonment, for kidnapping 14 years imprisonment, for indecent assault seven years imprisonment, and for male assaults female two years imprisonment.
Procedural issues
It is necessary at the outset to say something about your trial, which commenced on 7 October 2009. Prior to the trial you were on EM bail, which I had been persuaded to grant in June 2009. Before that you were remanded in custody for a significant period.
On 7 October you did not appear. Police inquiries revealed that you had slipped your EM bracelet and absconded. Following argument from counsel, I decided that the trial must proceed in your absence. Although Mr Kaye sought leave to withdraw as your counsel, being without current instructions, I directed that he remain. He conducted the case on your behalf with his usual skill, but of course was hampered by your absence. You were apprehended by the police several weeks later and have been in custody ever since.
The Court is told that you deny this offending, and that nothing that would justify these charges ever took place between you and the respective complainants. The Court is also told that you propose to appeal against the jury’s verdicts. My decision to proceed with the trial in your absence may be among the grounds of appeal, but those are matters for the Court of Appeal and not for this Court today. I must sentence you on the basis of the jury’s verdicts.
The jury acquitted you on count 4, which was a charge of robbery in respect of Ms R. You are accordingly discharged on that count.
At the conclusion of the Crown case, Ms McClintock accepted that there was insufficient evidence to go to the jury on counts 6 and 7 of the original indictment, which concerned Ms L. Those charges were therefore withdrawn. For the avoidance of doubt you are hereby discharged on those counts.
Following your apprehension you were brought before the Court. The Crown indicated it would be seeking a sentence of preventive detention and an order was made pursuant to s 88 of the Sentencing Act 2002 that reports be obtained from two appropriate health assessors. Those reports are now to hand, as is a third report prepared on your instructions.
This morning the Crown has pursued its argument that preventive detention is appropriate. Mr Kaye on the other hand submits that a substantial finite sentence is sufficient, perhaps accompanied by a minimum period of imprisonment.
Factual background
I turn to a brief summary of the events which gave rise to these charges. It is necessarily based upon the case the Crown presented to the jury. I appreciate that your account is radically different, but you rejected the opportunity to tell your side of the story to the jury.
[ 10] The first victim, Ms R, was 18 years old at the time. She had two small children and occasionally supported her family by prostitution. At about 11.30 pm on the night of 26 September 2008, she was on the streets of South Auckland. You approached her in your car. A price of $100 for sex was agreed and she got into your car for that purpose. Although she had suggested you go to a nearby park, you drove further away to a cul-de-sac in a deserted industrial area where you parked under a street lamp towards the end of the road. As you drove you offered Ms R both alcohol and cannabis, which she refused.
[ 11 ] An argument developed between the two of you over whether you should pay
Ms R before engaging in sexual intercourse and over whether you ought to wear a
condom. Ms R was not prepared to cooperate with you if you did not do both. On
her account, she ultimately got out of the car after a lengthy argument and began walking away. You seized her and forced her into the back seat of the car. During the ensuing struggle you hit her once or twice on the left cheek. You forced yourself on top of her and raped her as she struggled. As matters transpired you did in fact wear a condom.
[ 12] Ms R said the rape continued for three to five minutes. Throughout she struggled with you and told you to get off her, but you simply told her to shut up. Once you finished Ms R seized her clothing, dressed, got out of the car and walked off. In Roscommon Road she called the police from the Shell Service Station. Later you were identified from a photo montage.
[13] The second incident occurred on the night of Wednesday 8 October 2008, less than a fortnight after the first. The second victim, Ms L, was walking home, having been drinking in the afternoon and evening with a friend. At the time she was 19 years of age. She is now 20. For some time she has suffered from severe schizophrenia and there was medical evidence at the trial about that.
[ 14] As she was walking along Great South Road you approached her in your car and asked her for directions. You then offered to drive her home. The victim accepted because she thought you looked friendly and did not want to walk home alone at night. But you did not drive her home. Rather, you first went to a liquor store where you purchased a box of Codys or Woodstock alcohol drinks. You then drove Ms L to a carpark near the airport, where you both drank some of the alcohol and you offered her cannabis which she refused. When she asked you to take her home you responded that you would not do so until she gave you what you wanted. You then drove to an even more isolated area, poorly lit and with little vehicular traffic. You told the victim to get into the back seat, which she did. You locked all of the car doors and again told her you would not drive her home until you got what you wanted. She was scared of you and said in evidence she was afraid you would attack her if she did not give in to your advances.
[15] You undid her top and felt her breasts under her clothes. Eventually, under
the pressure you imposed upon her, she removed some of her garments and you had
sexual intercourse with her. By that time, she said in evidence, she thought you might kill her if she did not accede to your demands. During sexual intercourse you held her down by the shoulders.
[ 16] Ultimately she managed to escape from the car while you were leaning over into the front seat to recover a beer container. Ms L ran to a nearby building where she found a security guard who called the police.
[ 17] You do not dispute that you were the male person involved in each of these incidents, but you say that nothing untoward occurred on either occasion. In particular, your contention is that there was no sexual activity between you and either of these young women, save that you accept you fondled Ms L’s breasts, but that she agreed to that.
Victim impact statements
[ 18] Ms R says in her victim impact statement that this incident has had a huge effect on her life. She is too fearful to work on the streets as a result of this incident, and her family goes without some things now as a result. Indeed, she says she has worked on the streets only once since the offences against her were committed.
[ 19] It is relevant to observe that Ms R, although still young, has already experienced a good deal of life. She has two young children; at the time she was used to street work with all of the risks that entails. In her victim impact statement she says she is not unused to being mistreated to some degree. But she was plainly terrified by this incident. That much was evident from the way in which she gave her evidence, even though you, Mr Kumar, were not present in court. She presented as a witness who was extremely frightened of you, and terrified simply by the recollection of that night.
[20] For her part, Ms L gave evidence without such overt signs of distress, but she
says, and there is supporting evidence from Dr Pillai on the point, that her serious
mental health condition has deteriorated following your offending. She now spends
an increased amount of time in respite care. She suffers flashbacks of the attack, her paranoia has increased, and her ability to trust people is reduced.
Sentencing principles
[21 ] In the course of reaching an appropriate sentencing conclusion I must take into account established sentencing principles, which include the need adequately to denounce these offences, to hold you accountable to the community, and to induce you to accept responsibility for your behaviour. There must be an element of deterrence, against both future offending by you, and by others who may be minded to offend similarly.
Any sentence I impose on you must be consistent in kind and length with those imposed on others who have offended in a similar way. Finally and importantly, I am obliged also to consider how I am to assist in reintegrating you into the community and in facilitating your rehabilitation.
Personal circumstances
You are 41 years old and of Fijian-Indian heritage. You are a fitter and turner by trade, having had a number of jobs as a machine operator in various factories. Plainly you are an intelligent man who has completed tertiary level courses in areas such as computing, engineering, health hazards and hygiene, food safety and production work. For a time you attended university. Immediately prior to your arrest you were working as a mechanic for an automotive business run by your nephew, a position which you understand is being kept for you. You are in good health.
There is a history of serious alcohol abuse, which I will come back to a little later. In 1999 you separated from your wife. You have a current partner with whom you seem to have had a sporadic relationship. It seems that she is standing by you. Like you, she does not accept that you are responsible for what occurred. The pre‑
sentence report indicates you are sorry for what the complainants were put through, but that you do not believe the police investigation was fair.
The report writer is of the opinion you have no insight into this offending, and your risk of re-offending is therefore considered to be high.
Your offending history
You have some 59 previous convictions, dating back to 1989, so you began offending not long after your arrival in New Zealand in 1986 at the age of 17. Thirty of the convictions are driving related, including ten blood alcohol convictions. In addition there are some 20 convictions for offences which might be thought to demonstrate a disregard for authority. They include offences such as failing to give your name and address on demand, refusing to give blood on request, supplying false details, resisting police and so on.
This is an appropriate point perhaps at which to comment briefly upon your decision to abscond rather than attend your trial. You admitted to two of the health assessors, Dr Seth and Dr Duff, that you thought the trial would be adjourned if you did not attend. To Dr Seth you first said you had broken bail in order to look after your mother, but later conceded you were under the impression that if you did not attend, the case would be automatically adjourned.
To Dr Duff you said that a decision not to attend had been a planned gamble to make the authorities delay your trial, and that you were proposing to appeal to the Court of Appeal.
The Crown argues that there is clear evidence that you were endeavouring to manipulate the outcome of the trial. I accept that submission. In my opinion it is a proper inference, having regard to the extreme emotional fragility of the two complainants, that you were optimistic that they may never ultimately give evidence if the trial was adjourned by reason of your absence.
I return to your previous list. It includes several convictions involving violence. One incident is of central importance for present purposes and it is necessary to deal with it now in some detail.
On 20 February 2004 you were sentenced in the District Court to three years imprisonment on charges of injuring and of attempted abduction. Other penalties were imposed on a variety of other charges which were before the Court at the same time.
The circumstances of the principal offending were that the female victim (then aged 18 years), who was known to you, was voluntarily at your home. You made sexual advances towards her; they were rejected, and she tried to leave the house. But you refused to let her go. You branded her a “user”. During a physical struggle you offered her money for sex and demanded items of her property as payment for alcohol which she had drunk at your home. She tried to escape through a bedroom window, calling for help as she did so. A second victim, a neighbour, came to her aid. The neighbour diverted your attention and your first victim was able to make her escape. But you assaulted the second victim, a middle aged male, with a pair of secateurs or scissors. He sustained injuries of some severity.
Initially you denied responsibility for that attack, although you were apprehended by the police wearing bloodstained clothing. Eventually you pleaded guilty and the three year sentence followed.
Disturbingly, you now deny any responsibility for that earlier offending, taking issue with the summary of facts upon which you pleaded guilty, and placing the blame on the shoulders of your victims. It is difficult to understand why you should now deny your responsibility for previous offending to which you pleaded guilty. I accept the Crown’s submission that your current attitude to that offending is relevant to the overall assessment of risk.
Also relevant to overall risk is an incident alleged to have taken place on 23 March 2007. That was shortly after your release from prison, having served the sentence imposed in February 2004. I should perhaps provide the detail of the dates
upon which you were released from prison, and of your subsequent period on home detention towards the conclusion of your overall sentence. The Court is told this morning you were released from prison in October 2005, and that your period on home detention came to an end in August 2006. So the March 2007 incident was about six months after the end of your period on home detention.
The 2007 offending involved an allegation of abduction, rape and assault of another young woman. That complainant did not pursue her allegations to trial, although a trial date had been allocated for July 2008.
Of course, the Court must not make any assumptions about the likely eventual outcome of a case which never proceeded to trial. But the Crown relies on the circumstances of that alleged offending because it is relevant to timing issues. Upon your apprehension in respect of the March 2007 charges, you were remanded in custody for more than a year, until 17 June 2008, when the complainant confirmed that she did not wish to give evidence and you were released. The offences for which you are now to be sentenced occurred on 26 September 2008 and 11 October 2008 respectively, so within less than four months following your release, you have re-offended against these two young women.
You now say that none of the three complaints which are before the Court for consideration was justified. You have resiled from responsibility for the first offence (for which you were sentenced in February 2004), despite your plea of guilty at the time, and you continue to deny your responsibility for the events, the subject of the recent trial.
I am bound to proceed on the basis that these three complaints were genuine. For sentencing purposes I deal with you on the footing that you were guilty of the offences to which you pleaded guilty in 2003 and were sentenced in February 2004, and I must proceed on the basis of the jury’s verdicts in 2009. I accept the Crown’s submission that your history of sexual offending displays an attitude to sex which incorporates an expectation, or sense of entitlement. Pursuing what you regard as that entitlement, you have targeted, in particular, vulnerable young women who you believe may be susceptible to your advances, but who will be unable to offer any
effective resistance should you be determined to achieve your objectives over their opposition. Consistent with that is the denial and minimisation of your behaviour, and the blame you place on others for your predicament. That flavour emerges strongly from each of the three health assessors’ reports which assist the Court. I am satisfied there is little or no current insight into your offending propensities, as is demonstrated quite remarkably by your endeavours to resile now from criminal responsibility for the 2003 charges to which you pleaded guilty.
[40] I should mention that this morning you have given explicit instructions to Mr Kaye to the effect that you are willing to undertake treatment that would be appropriate for serious sexual offenders. I will come back to that presently.
[41 ] It is against the background I have just described I come to the question of preventive detention.
Preventive detention
The purpose of a sentence of preventive detention is to protect the community from those who pose, as Mr Kaye reminds me, a significant and ongoing risk to the safety of its members. Its primary function is not punitive: s 87(1) Sentencing Act 2002, R v C [2003] 1 NZLR 30 at 33-34.
Three legislative preconditions must be satisfied before such a sentence can be imposed. I will turn to those in a moment, but I pause to observe that even if those preconditions are established, it does not automatically follow that a sentence of preventive detention must, or even ought, to be imposed. The final outcome remains a matter of discretion. Neither is a sentence of preventive detention to be regarded as a sentence of last resort. The relevant factors must be carefully considered and weighed.
Section 87 of the Sentencing Act empowers a Court to impose a sentence of preventive detention only where the following circumstances are established:
a)the prisoner is convicted of a qualifying sexual or violent offence. Sexual violation, indecent assault and kidnapping are all qualifying offences;
b)the prisoner was 18 years of age or over at the time of the commission of the offence. That requirement is plainly established;
c)the Court must be satisfied that the prisoner is likely to commit another qualifying sexual or violent offence if released at the expiry date of a finite sentence.
This last requirement is of course, the nub of the matter. The Court is required in making the necessary assessment to have regard to the mandatory factors set out in s 87(4).
The Crown submits that you present a significant and on-going risk to the safety of the community, to such an extent that the Court will be justified in imposing a sentence of preventive detention. By way of example only, the Crown refers to three sentencing authorities: R v Gately CA370/01, 25 February 2002; R v Rameka CA178/97, 18 June 1997; and R v Jellyman HC Wanganui CRI-2006- 083-2875, 28 April 2008. I have considered each of those.
Ms McClintock submits, and I agree, that these cases, which involve widely varying sexual offending, indicate that preventive detention will often be appropriate in the case of sexual offenders who lack insight into the causes and effects of their offending, do not take responsibility for it, and lack a genuine desire, or indeed the ability, to rehabilitate.
I turn now to the mandatory considerations set out in s 87(4). The first factor to be considered is whether a pattern of serious offending is disclosed by your history. The Crown argument is that there are three discernible patterns, namely a propensity for violence, a propensity for dishonesty combined with a disregard for persons in authority, and a propensity to offend sexually against young women who refuse consensual sexual contact.
You have two convictions for violence against your ex-wife, as well as a conviction for threatening to kill her. There is also the conviction for injuring with intent to injure in respect of the male victim who came to the aid of the young woman who was your target in the 2003 offending.
The offences currently before the Court include a guilty verdict on the charge of male assaults female, and of course there is the violence inherent in the sexual offences themselves. In addition, there are convictions for both resisting and assaulting the police.
In your interviews with the three health assessors, you tended to minimise your use of violence, or blamed others for it. In some instances you denied any recollection of the relevant facts, and as I earlier observed, you now resile from your guilty plea to the 2003 offences. All three assessors, either expressly or impliedly, say there must be reservations about your attitude to violence. And in particular, about your tendency to minimise your responsibility for it.
As to the pattern of dishonesty, there are notably a number of convictions for misrepresenting your own identity. You seem to have used a great number of aliases. Dr Duff notes you are unable to account for your repeated provision of false names to the authorities.
Your apparent disdain for authority is perhaps also illustrated by the manner in which you seem, at least in Dr Seth’s opinion, to have manipulated the interview process. There are suggestions that you deliberately skewed the cognitive test results. You sought to conduct the interview with Dr Seth in Hindi, even though you speak fluent English, and gave contradictory information to Doctors Seth and Duff as to why you did not attend your trial. All of this suggests you are simply playing with the system and endeavouring to manipulate the results of your interviews to your own advantage.
But of course the primary concern for present purposes is your apparent propensity for sexual offending. Mr Kaye stops short of saying that the 2003 offending should be set to one side, but suggests that it must be approached with
some caution before it is regarded as forming part of a pattern with the index offences. That is a responsible submission and I understand the basis upon which it is advanced. However, there is considerable weight as well Ms McClintock’s submission that that earlier offending against your female victim, while arising in a different context (because she was previously known to you), nevertheless bears a distinct similarity to the offending for which you now appear for sentence. Your earlier victim was 18 years old at the time; she was approached by you in a vehicle when she was outdoors and alone (although of course you had met her once previously), you enticed her back to your place by offering her alcohol; once there you initiated sexual contact with her, when this was refused you became both angry and violent.
In that earlier case, you refused to permit your female victim to leave the room and when she endeavoured to make her escape and was rescued by the neighbour, he then became a secondary target. But in the present cases your anger and violence was sufficient to overcome the resistance of the two young women concerned.
I accept also Ms McClintock’s submission that there is a close correlation between what occurred in the present cases, and the earlier incident in which you suggested that you were entitled to sex from the victim, simply because she had consumed alcohol which you had purchased earlier in the evening.
There is therefore a distinct pattern to your sexual offending. I do not lose sight of Mr Kaye’s submission to me that the question is whether there is a sufficient pattern for the purposes of the subsection.
Dr Duff observes in addition there is a degree of offending diversity as well. Female partners are at risk of violence, as are persons in authority and those who may physically stand in your way. For the purposes of the subsection I am satisfied there is a pattern of offending which I am entitled to take into account in the overall assessment.
The next question is the seriousness of the harm to the community caused by your offending. The extent of the harm is most directly gauged from the victim impact statements to which I have referred. On any view, offending on this scale must be regarded as very serious, and because it involved picking up young women in a public street, there is a clear community dimension as well.
The third, and perhaps the most important factor for present purposes, is the degree to which available information indicates a tendency to commit offences in the future.
The Court has had the advantage of reading three reports; from Dr Seth, consultant psychiatrist, and from Ms Visser, a registered clinical psychologist, both commissioned pursuant to s 88. A third from Dr Duff was commissioned by your counsel. There is a remarkable correlation between the views expressed in each report.
Each of the report writers notes your tendency to deny, minimise or avoid responsibility for your offending. I have already dealt with that point. There is a corresponding lack of empathy for your victims. Each of the assessors acknowledges the difficulties inherent in accurate risk prediction. Ms Visser and Dr Duff each performed the Static 99 test, designed to estimate the probability of violent and sexual recidivism among adult males previously convicted of at least one prior sexual offence. That test, which does not take account of dynamic factors, placed you in the high risk category in respect of sexual reoffending in the next five to ten years. Ms Visser performed three other risk assessments, which did bring into account dynamic factors and concluded that the risk of violent and sexual offending remained high.
Another point made by the assessors concerns your apparent sense of entitlement where women and sex are concerned. It may be that your upbringing had something to do with that. You were a favoured younger child and it seems many of your expectations were met in early days. Ms Visser considers that it is this sense of sexual entitlement that drives your offending, rather than the alcohol use, which undoubtedly forms part of this problem.
Dr Duff is inclined to bring into account also your history of hostility towards women, and your aggression in dealing with them.
There is also the offending pattern in recent years. As I have earlier indicated you appear to reoffend, or at least placed yourself in a position where you are liable to attract criminal charges, very soon after your release from custody for earlier offending.
Then there is the alcohol question. You have a documented history of alcohol abuse, and for a time were undergoing treatment, although you did not meet the requirements of the treatment provider and it seems your involvement with the programme lapsed.
You are on record as accepting that you had an alcohol problem, but with the present health assessors, you were equivocal. In the pre-sentence report you denied ever having serious issues with alcohol. You adopted the same stance with Ms Visser.
With Dr Seth you accepted in part that you may have a problem. Your inability to face up to what has, at least in the past, been an obvious problem, plays in my opinion some part in the risk profile you present.
Importantly and additionally, alcohol was a feature in your present offending. The evidence of each of your victims was that they were offered both alcohol and cannabis. Each also said you were drinking yourself, although you denied that. Of course, alcohol was also involved in the 2003 incident.
There is a distinct linkage between your offending and your use of alcohol. In my opinion, the alcohol element adds to your risk profile for preventive detention purposes.
[71 ] As something of a footnote, you were apparently arrested in late October
after your trial, as a result of information supplied by a woman who you had recently
contacted on the internet. So you remained intent on pursuing women, even though
you were effectively on the run from the police. I place no significant weight on that; but as Ms McClintock submits, that consideration is inconsistent with any suggestion that you intend to turn away from your determined pursuit of women.
Finally, there is the question of your stance to your current and past offending. You remain firmly in denial. Indeed, your denials extend to earlier offences to which you pleaded guilty. Accordingly, in the face of those denials you are ineligible for any useful treatment, and while you remain in denial the Court must regard you as presenting a significant risk of reoffending. In other words there is a risk you will simply continue to offend, because you have shown a proclivity for putting to one side and ignoring your personal responsibility for your behaviour.
As I earlier mentioned, Mr Kaye has formally conveyed your willingness to engage in suitable treatment. I must take serious account of that. But that is only one step in what is a two step process. Prior to that, there is a need for you to accept your criminal responsibility both for these offences and the offences to which you previously pleaded guilty. That is not forthcoming, and the Court is told you propose to appeal to the Court of Appeal against your present convictions. So I must treat with some caution your present indication that you are prepared to undertake treatment. Overall I am satisfied that at present you continue to pose a significant and on-going risk to the safety of the community, and that you pose a high risk of committing serious offences in the future.
The fourth factor is the absence of, or failure of, efforts by the offender to address the causes of the offending. To date you have received no treatment for sexual offending.
It appears that in 2005 you did indicate a willingness to undertake rehabilitation for sexual behaviour in the context of the 2003 offending. But now you have denied responsibility for that offending, and you completely deny any responsibility for the present charges.
It is possible that you may change your stance at some point, but the Court cannot be confident about that, and it would not be safe to assume that there will be a
change. Ms Visser points out that you seem to have benefited from drug and alcohol counselling, in that there are no drink/driving convictions for offences committed after 2000. It may be you are someone who can take benefit from appropriate targeted programmes. But one needs to bear in mind that you have spent much of the last few years in custody, so it is difficult to know how much weight to place on the apparent cessation of blood alcohol offending. As I mentioned earlier, your participation in an alcohol counselling programme was short lived.
The Court has no alternative but to conclude that at least at present you are unwilling to grapple with your present problems. It is difficult to develop any confidence that in the foreseeable future you will commit yourself to an offence-free lifestyle.
The final question for consideration is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. Where there is evidence of a genuine desire for treatment and assistance, this principle will often be accorded very significant weight. Mr Kaye quite properly underscores the importance of giving appropriate weight to this last of the s 87(4) factors.
But as was said in Solicitor-General v Seu CA1 5/98, 6 May 1998, a denial of the offending is highly material, because while it is maintained, treatment is impossible, and it is well accepted that a complete absence of remorse is a factor that heightens the risk of future offending: R v Flesher CA12/05, 25 August 2005 at [32].
A sentence of preventive detention is always imposed with a degree of reluctance. To some extent it marks a failure of society adequately to integrate one of its members into the community. But that said, there are instances in which the protection of the community must come first, and that is the principle underpinning the sentence of preventive detention, which s 87 authorises.
In some cases the Court is able to take into account the possibility that the public will be adequately protected by the imposition of a lengthy finite sentence of imprisonment, together with the possibility of an extended supervision order: R v
Mist [2005] 2 NZLR 791. But that option is not available here, because your offending would not qualify you for an extended supervision order at the conclusion of a finite term of imprisonment.
Preventive detention: conclusion
[82] In the end I have reached the view that you are likely to commit another qualifying sexual or violent offence at the expiration of a finite sentence, and that the appropriate sentence is that of preventive detention. I have reached that view for the following reasons:
a)All of the assessors and the pre-sentence report writer conclude that you are at a high risk of future offending, although their opinions are expressed slightly differently in each case. They do so, of course, chiefly upon the basis of your past offending, but that will usually be a reasonably accurate predictor of future behaviour, in the absence of other countervailing considerations;
b)I am troubled at the way in which your sense of entitlement to sex appears to be coupled with your preparedness to use violence in order to get your way. That seems to be a deep-seated tendency which a finite sentence will be unlikely to deal with;
c)You have already served a significant finite term of imprisonment in respect of a previous sexual offence – I am talking about the 2003 abduction offence.
d)Soon after that, you were the subject of a further complaint of sexual offending, which led to your incarceration for about a year. When that complainant declined to give evidence you were released, but within a few months you were apprehended for the present offending. Moreover, there is a distinct pattern in your recent sexual offending. I have identified the features of that pattern. There must be a
continuing risk of recurrence of offences of this type, unless you address the causes of your offending;
e)You do not acknowledge either this latest offending, or your overall criminal responsibility. You are simply in denial. Indeed, it now appears that you deny responsibility for the earlier sexual offence to which you pleaded guilty. You will be ineligible for treatment until such time as you do face up to offending of this sort, and recognise the enormity of what has occurred. Without treatment, the risk of further sexual offending is considerable;
f)Because you are in a state of continued denial, you have little insight into your offending. The reports furnished to the Court indicate neither an acceptance of guilt, nor any empathy for your victims. This last factor is also likely to increase the risk of future offences.
g)Although you are plainly in need of targeted counselling and treatment to address the causes of your offending, that cannot at present be provided. However, a sentence of preventive detention may well provide you with an incentive to reform.
There is a clear advantage to the community if a sentence of preventive detention is imposed. If, following your release, you commit further serious offences, you run the risk of being recalled to prison. That of itself will be a powerful motivator following your release.
As was said in R v Bryant CA236/03 16 December 2003:
[23] ...It may be said the offender controls his own destiny. Successful
participation in a course of treatment, such that he will not pose an undue risk to the safety of the community if released, will be determinative of his final release date. The advantage of this incentive by comparison to the situation of a prisoner subject to a finite term is obvious.
[85] In other words, your future lies in your own hands.
[86] For these reasons I have concluded that a sentence of preventive detention must be imposed.
Minimum term
[87] That is not the end of the matter. Under s 89 of the Sentencing Act a sentence of preventive detention must be accompanied by an order that the offender serve a minimum period of imprisonment, which in no case may be less than five years. The minimum period of imprisonment imposed must be the longer of:
a)The minimum period of imprisonment required to reflect the gravity of the offence, or
b)The minimum period required for the safety of the community in the light of the offender’s age and the risk posed by that offender to the safety of the community at the time of sentencing.
[88] As the Court of Appeal observed in R v C, the first step involved in fixing the minimum period of imprisonment is to reflect the gravity of the offence at a sufficient level to punish, to denounce and to deter, bringing to account all relevant sentencing considerations bearing on those issues, except the need for public protection which is the focus of s 89(2)(b). The second step is to consider whether any longer period is required for the purposes of the safety of the community.
[89] In determining what minimum period of imprisonment it is appropriate to impose, it is often helpful to consider what finite term may have been appropriate, after taking into account all relevant aggravating and mitigating factors, and then, having regard to the gravity of the offence, what the period of the minimum term might properly be in relation to the possible finite term: R v Johnson [2004] 3 NZLR 29 at [31].
[90] In R v A [1994] 2 NZLR 129, the Court of Appeal held that a finite sentence
of eight years imprisonment ought to be the starting point in a contested rape case,
the Court explaining that aggravating factors would justify an increase from the starting point.
In the case of Ms R, I consider that the appropriate starting point would be of the order of nine years imprisonment, an uplift of one year being sufficient to recognise the degree of violence used, her inherent vulnerability, and your previous convictions.
In respect of Ms L, a starting point of eight to nine years imprisonment may well have been sufficient. But the overall penalty must recognise the totality principle. I consider that concurrent terms of 13 years imprisonment on the rape charges would appropriately reflect your overall culpability. I would also have imposed a minimum period of imprisonment of seven years and see no need to depart from that assessment in the preventive detention context. No adjustment is needed for public protection purposes in terms of s 89(2)(b).
Accordingly, there will be a minimum period of imprisonment for the purposes of s 89 of the Act of seven years.
Mr Kumar, you are 41 years of age and in a state of denial regarding your offending. It will take time and effort by you and those who have responsibility for you to bring about the degree of attitudinal change which would be necessary before you could be safely released back into the community. The date of your release is very largely in your own hands. You will need to face up to what has occurred and make a real effort to turn your life around.
Sentence
On each of the counts of rape and kidnapping, you are sentenced to preventive detention with a minimum period of imprisonment of seven years.
On the indecent assault count you are sentenced to 12 months imprisonment, and on the count of male assaults female you are sentenced to nine months
imprisonment. In each case those terms are to be served concurrently with the sentence of preventive detention.
C J Allan J
0
0
0