R v L
[2022] NZHC 2364
•15 September 2022
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS OF AGE PROHIBITED BY S 204 OF THE CRIMINAL
PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2020-054-1227
[2022] NZHC 2364
THE KING v
L
Hearing: 15 September 2022 Appearances:
G J C Carter for the Crown
D M Goodlet for the Defendant
Sentence Date:
15 September 2022
SENTENCING OF COOKE J
[1] Mr L you appear for sentencing after being found guilty of one charge of sexual violation by rape at the Palmerston District Court on 25 February 2022. The victim of your offending is your biological daughter who was aged 14 years at the time. Your sentencing was transferred to this Court given the application by the Crown that you be sentenced to preventive detention.
R v L [2022] NZHC 2364 [15 September 2022]
Background
[2] You and the mother of your daughter separated in 2019, after a 16 year-long relationship. You have four children together who all live with their mother. At the time of the offending the children were at your home for a period of time over the school holiday break.
[3] On the evening of Wednesday 24 April 2019 you were at your home with your children. Around 7 pm the children got ready for bed. Three of the younger children put themselves to bed in bedrooms situated downstairs. You insisted that the eldest child, your daughter, sleep on an air bed on the floor of your bedroom.
[4] Your daughter began to undress and prepared to go to bed when she noticed her pyjamas had been removed from where they had been. She dressed in a bathrobe instead and had no clothes on underneath. While she got ready for bed, you removed the door handle from inside the room. You achieved this by removing the spindle from inside the door mechanism so that the door could no longer be opened from inside the bedroom. When she asked what you were doing, you said it was to stop the dog from getting into the bedroom.
[5] You then removed your pants so you were in your underwear and got into your own bed. You then told her to get into bed with you, because you two were going to watch a scary movie. Once she got into bed you pushed her down and rolled over so you were on top of her. You removed your underwear and held the her down onto the bed, exposing her body under the bathrobe and raped her.
[6] Following this your daughter located the spindle and handle nearby and managed to open the door and leave the room. She locked herself in a downstairs bathroom and texted her mother to pick her up first thing in the morning. She was followed by you, and you were angry. You demanded she hand over her phone and tell her mother instead that you had had a fight. You made her promise not to tell anyone about what happened as it would destroy you.
[7] Before proceeding further I want to acknowledge your daughter. She has spoken today about the offending and its effects on her. She has explained that she
can never consider you as her dad any more given what you have done. It is appropriate that you hear those things from her. And the Court recognises her strength in being here today and providing her statement.
Previous offending
[8]You have also offended in similar ways in the past:
(a)Between 1988 and 1991 you sexually offended against the daughter of your then partner on multiple occasions. You were charged and convicted of having raped her and assaulting her from when she was nine years old until she was 12. The factual context of that offending is similar to the present offending, although more prolonged. You pleaded guilty to that offending.
(b)Between 2000 and 2001 you were in sexual relationship with another woman. Her daughter was aged nine years old. One night it was arranged for her to stay over at your house. At around 7 pm the you told the complainant she needed to have a shower. You brought her a towel. You began to undress her, but she told you she could undress herself. She did so and walked into the bathroom. You followed her into the bathroom, and proceeded to wash her hair and her body. You pleaded guilty to the offence of indecent assault of a female under 12.
Approach to sentencing
[9] I will approach your sentence in the following way. First I will determine an appropriate starting point for your sentence by assessing your culpability — for example certain features of your offending that may give rise to increased culpability. In doing so I will have regard to the principles and purposes of sentencing. Next I will consider whether to adjust that starting point by looking at factors personal to you. I will then consider whether it is necessary to impose a minimum period of imprisonment, that is a period of time you must serve in prison without any prospect of parole. Finally I will consider whether the sentence of preventive detention is appropriate for you.
Starting point
[10] The Court of Appeal has provided guidance on how to approach sexual violation offending of this kind in R v AM,1 and that will be the decision I will most rely on today to guide my sentencing of you. I will also take into account aggravating and mitigating factors found under s 9 of the Sentencing Act 2002 to assess your culpability.
[11] The required approach recognises that there are different levels of seriousness attached to this offending, which is broadly categorised into different bands. There is agreement here that your offending falls into what is called band two for sexual violation by rape. Rape band two carries a sentence of seven to 13 years. It is appropriate for moderate level offending which involves a vulnerable victim or multiple offenders or additional violence. It is applicable when two or three of the aggravating factors are present.
[12] The Crown says your offending should attract a starting point of 11 years imprisonment. Your counsel say a starting point of 10 years is appropriate. I agree with counsel that the following factors are clearly present in your offending:
(a)planning and premeditation;
(b)vulnerability; and
(c)breach of trust.
[13] There was clearly premeditation involved in the sequence of events as you lured her to be separated from her siblings, and you altered the door handle mechanism to prevent her escape. She was vulnerable because of her age, physique and the fact she was your daughter. There was a gross breach of trust given that you are her biological father, and you were responsible for the care of the children at the time. You abused that position of trust. I also consider there is an element of detention by you taking steps to ensure that she could not leave the room, and that you would not
1 R v AM [2010] NZCA 114.
be disturbed. That means that three to four aggravating factors are present in your offending placing you in rape band three.
[14] I agree however, as the Crown has accepted, that your offending belongs to the cusp of rape band two and three given it was a single event and the factors are not all present to high degrees.
[15]I have taken into account cases that are broadly similar to yours including:
(a)R v Batchelor involving the rape of a 15 year old girl who was a friend of the defendant’s daughter where a starting point of nine years was adopted;2
(b)R v A involving the rape of a 14 year old, which involves similar circumstances as the present case, but where the defendant had a positive attitude, where a 10 year starting point was adopted;3 and
(c)R v R involving the rape of a 17 year old step-daughter where the Court indicated a finite sentence of 11 years would have been involved.4
[16] In my view given the circumstances, the aggravating factors, and comparable cases your offending attracts a starting point of 11 years imprisonment.
Personal aggravating and mitigating circumstances
[17] The next step in the sentencing exercise is to take into account any personal circumstances to you that will affect the starting point. Your counsel have not proposed any mitigating factors to your offending and I cannot find any. You have not exhibited remorse, I do not have evidence of previous good character. There are no other reasons to suggest your culpability should be diminished. You decided to defend the charges. So there are no discounts that lower your sentence.
2 R v Batchelor [2020] NZHC 1941.
3 R v A HC Rotorua CRI-2009-063-2158, 16 September 2009.
4 R v R HC Auckland CRI-2005-044-5017, 13 June 2008.
[18] It is also appropriate to take into account personal aggravating circumstances. In this case there are such circumstances arising from your prior offending of a similar kind. That prior offending gives rise to the need to consider the sentence of preventive detention, but in the circumstances of your case it is appropriate to engage in an uplift of a finite sentence given your offending history. In my view that uplift should be one year to take the finite sentence to 12 years’ imprisonment.
[19] Your sentence is a little higher than the three other cases I have mentioned given that your daughter was only 14 years old at the time, and given your prior history.
[20] Accordingly the end sentence of imprisonment for you will be 12 years imprisonment.
Minimum period of imprisonment
[21] A minimum period of imprisonment is imposed under s 86 of the Sentencing Act if the Court believes that the proposed term of imprisonment is not sufficient to hold you accountable for the harm done to the victim and the community, to denounce your conduct, for deterrence and for protecting the community. It is a period of imprisonment you must serve without the possibility of parole. In doing so I note the significance of the role of the Parole Board emphasised by the Court of Appeal in Briggs v R.5
[22] But if the Court did not conclude that preventive detention is the appropriate sentence it would be necessary in the circumstances of your case to impose an MPI to ensure that the term of imprisonment is sufficient to protect the community. I accept the Crown’s submissions that an MPI of two thirds of the period of imprisonment, that is an MPI of eight years, is appropriate in those circumstances given your background and reoffending risks.
Preventive detention
[23] As you will know the Crown seeks a sentence of preventive detention. Your counsel agrees that a sentence of preventive detention is available. The purpose of
5 Briggs v R [2020] NZCA 453 at [46].
preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members. The Court has to be satisfied that you are likely to commit another qualifying sexual offence when released.6 In doing so, the Court will take into account:7
(a)any pattern of serious offending disclosed by your history;
(b)the seriousness of the harm to the community caused by the offending;
(c)information indicating a tendency to commit serious 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 determinate sentence is preferable if this provides adequate protection for society.
[24] As required by s 88 of the Sentencing Act 2002 I have received two health assessors reports from Rob Paramo and Paul Carlyon. The purpose of these reports is to assess the likelihood of you committing a further qualifying sexual offence.8 I have also received the normal pre-sentence report.
[25] One of the difficulties in making the assessments having regard to these reports is that you have failed to cooperate with the report writers. You have declined to engage in any interview with them. It also means that the documentation from your file has only been made available in a redacted form given your entitlement to claim confidentiality.
[26] One of the assessors, Mr Carlyon has indicated in his brief report that your lack of cooperation means he is unable to formulate an opinion on your risk of reoffending. That is not the case with Mr Paramo who in his detailed report has been able to provide
6 Section 87(2)(c).
7 Section 87(4).
8 Sentencing Act 2002, s 88(1)(b).
the Court with useful opinions, albeit he has identified the limitations arising from your lack of cooperation.
[27] Section 88 requires the Court to consider reports from at least two appropriate health assessors about the likelihood of your committing a further qualified sexual or violent offence. Notwithstanding Mr Carlyon’s view that he is unable to formulate an opinion on your risk of reoffending, I am satisfied that the pre-requisites have been established. Your decision not to cooperate compromises the ability of the report writers to assist the Court. Mr Paramo has been able to provide an opinion, but Mr Carlyon says he is unable to. This means that the Crown puts forward its case for saying you meet the requirements for the sentence of preventive detention on the basis that it cannot be assisted by Mr Carlyon’s views. But I do not accept that a lack of cooperation from a person such as yourself can have the effect of preventing the availability of that sentence altogether as a matter of principle. I still have two reports addressed to the risks of reoffending.
[28]I address the required matters set out in s 87(4) against that background.
Pattern of serious offending
[29] I accept there is clearly a pattern of serious sexual offending disclosed by your history. You offended against the 12 year old daughter of your partner between 1988 and 1991 on several occasions. Then between 2000 and 2001 you offended against a nine year old. You have now offended against your 14 year old daughter within two years of the end of your 10 year extended supervision order. There is plainly a pattern of serious sexual offending that gives rise to the potential need for a sentence of preventive detention and it is notable that the risks have manifested themselves when you have not been in prison or subject to the extended supervision order.
Seriousness of harm
[30] The seriousness of the harm created by the offending, particularly to the victims of it, cannot be underestimated. Offending of this kind can be seriously harmful. It involves gross breaches of trust. Again, therefore, this consideration is also in favour of the imposition of the sentence of preventive detention.
Tendency to commit further offences
[31] The requirement to take into account information indicating a tendency to commit further offences in the future involves taking into account the reports from the psychologists.
[32] Although the results of the risk assessment tools have been provided to the Court, and these put you at an average or above average risk of further sexual offending, there are issues with putting significant weight on those reports. There is a difficulty in relying upon them in circumstances where you have declined to cooperate, and there are complications in relation to the inputs into those reports for someone who denies their offending, particularly when they involve dynamic risk assessment factors. But I take into account the results of the tools along with the general views of Mr Paramo, including his point that your risk has not been ameliorated with treatment, and that you have demonstrated a propensity to offend against unrelated children, step- children and now your own biological daughter.
[33] His opinion coincides with the conclusions that I am able to draw from your history. You have a pattern of committing this kind of offending now on three occasions. It is clear, therefore, that you cannot be trusted on release into the community as matters presently stand. Some form of state control is obviously necessary. These again are important considerations in deciding whether the sentence of preventive detention should be imposed.
Failures to address cause
[34] The next factor is whether there is an absence, or a failure of efforts by you to address the cause or causes of your offending. In this respect, whilst you have attended programmes within prison, you have failed to cooperate with the psychologists. There is nothing before me that suggests that you have made any genuine attempts to really confront what causes you to commit these terrible offences. Again, therefore, this factor in favour of the imposition of the sentence of preventive detention.
Lengthy determinate sentence
[35] The final factor is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. In association with this factor there is the additional consideration — the Court of Appeal indicated in R v Mist that the availability of an extended supervision order at the end of your determinative sentence should be taken into account.9
[36] It is at this stage that the most difficult issue in your case arises. It is significant that you were subject to a 10 year extended supervision order at the end of your last sentence. Although there were some suggestions that you were not complying with the terms of that order during its period, there were no formal allegations that you did not do so, and there is no information to suggest that you offended during the period of your ESO. It is striking, however, that you offended within two years after the end of it. When combined with your history it is apparent that you cannot be trusted, and that there must be some form of very significant state supervision to prevent you reoffending again.
[37] The determinative sentence I intend to impose on you is one of 12 years’ imprisonment. I have also determined that there should be a minimum period of imprisonment of eight years. You are presently 55 years of age. As Ms Goodlet emphasises you will be in your early 60s when the MPI comes to an end, and assuming the Parole Board would not release you because of the risks, you would be in your mid-60s by the time your period of imprisonment would come to an end. At that stage an ESO of up to 10 years could be imposed. So you could be subject to extended supervision until your mid-70s. At that point a further ESO period could also be sought if it was thought that you still presented as a risk.
[38] The sentence of preventive detention would mean that you could stay in prison until a very old man. You could be released if it could be demonstrated that you were no longer a risk, but that might be hard to establish. In my view the state should only imprison someone for what may be the rest of their life as a last resort. The legislation requires the Court to consider whether there is an alternative that appropriately
9 R v Mist [2005] 2 NZLR 791.
addresses the relevant risks. The ESO regime provides such an alternative. It is significant that while you were subject to an extended supervision order on the last occasion the community was adequately protected. This suggests that the community can be adequately protected by that regime, implemented outside prison, and it is not necessary to imprison you to protect the community.
[39] Ms Goodlet argues that the ESO regime is the appropriate course in your case. Ultimately I agree with that assessment. The fact that you did not offend during the 10 year ESO last time indicates that that sentence was sufficient to provide the community with the necessary protection. If necessary both an initial 10 year period and a further period could be imposed if the risk was still present notwithstanding your age at that stage.
[40] On balance, therefore, but I must say only by a fine margin, I have decided against imposing the sentence of preventive detention.
Result
[41] Mr L, on the charge of sexual violation by rape I sentence you to 12 years imprisonment, and under s 86 of the Sentencing Act I impose a minimum period of imprisonment of eight years.
Cooke J
Solicitors:
BVA Law, Palmerston North for the Crown