R v Lepper

[2014] NZHC 3015

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-012-002954 [2014] NZHC 3015

THE QUEEN

v

JOSEPH WARREN LEPPER

Hearing:	28 November 2014
Appearances:	R P Bates for Crown L A Andersen for Defendant
Judgment:	28 November 2014

SENTENCNG REMARKS OF GENDALL J

R v LEPPER [2014] NZHC 3015 [28 November 2014]

Introduction

[1]      Mr Lepper, you appear for sentence today having pleaded guilty to a charge of abduction  with  intent  to  commit  unlawful  sexual  connection.   That  sentence carries a maximum penalty of 14 years imprisonment.

Summary of Facts

[2]      At approximately 9.30 pm on 19 October 2013, the victim, a young 23 year old woman, was walking alone on Vogel Street in Dunedin to meet her parents for dinner nearby.  Vogel Street is in an old industrial area of the central business district and it is poorly lit. There were no other pedestrians or vehicles in the area.

[3]      You, Mr Lepper, drove along Vogel Street in your van with your co-offender, Mr McVeigh, who was just 17 years of age at the time.  He sat next to you in the front passenger street.  That evening you had decided to abduct and sexually violate a female and you drove slowly past the victim who was a total stranger to you and scanned  her  as  a  potential  target.    When  you  were  20  metres  past  the  victim, Mr Lepper, you angle-parked on the same side of the street as her.  Both of you got out of the van and stood on the footpath as the victim walked in your direction.  As she walked past, both you, Mr Lepper, and Mr McVeigh set upon her.  You grabbed her and endeavoured to physically restrain her and bundle her into your van while Mr McVeigh opened the sliding door of the van. The victim struggled violently, screamed, and physically resisted as you tried to take her towards the van. Her resistance was such that you were unable to get her inside, despite dragging her to the van in part by her hair and nearby residents were alerted and ran to her aid. Upon realising this, you, Mr Lepper, and your co-offender, Mr McVeigh, abandoned the victim, got back into the van and fled the scene.  The whole incident took some time.

[4]      The victim was understandably extremely distraught and badly shaken.  She suffered a sore back, numerous bruises and scrapes, the loss of handfuls of hair, a sore head and scratches to her neck. You, Mr Lepper, and Mr McVeigh were arrested the following morning. You denied the offending and claimed that you had been intoxicated and asleep outside a building in St Kilda at the time of the attack.  When

you were shown CCTV footage of the offence, you declined to make further comment.

[5]      Mr  McVeigh,  your  co-offender,  admitted  the  facts  of  the  offending  and claimed that he complied with the offending because that was what you, Mr Lepper, an older 37 year old man at the time, wanted.  He admitted that he knew the attack was going to lead to the sexual assault of the victim. He was sentenced by Lang J to two years and eight months imprisonment on the basis that he was not the instigator.1

The sentence included significant discounts for his guilty plea, his assistance to

police, and his remorse.

Victim Impact Statement

[6]      I have read the victim impact statement which is before the Court.   The victim who was a young woman aged 23 at the time, describes your offending, Mr Lepper, as being “extremely traumatising”,  being both “vicious and prolonged”. Handfuls of her hair were pulled out and she received numerous scrapes and bruises. She was devastated by the effect that the offending had on her parents, which they described as one of the worst episodes in their life.   She states that she now has minor panic attacks when she sees vans drive past, that she has trouble sleeping, and that she has become tense and fearful of groups of young men.  She also struggles to trust male strangers.

[7]      The attack caused her to miss one of her final year of university examination papers and it was difficult for her to have to share her attack with staff so soon after it occurred.    Furthermore, the attack overshadowed her final weeks at university. Her  perceptions  of  Dunedin  are  now  marred,  which  is  problematic  as  her grandparents are moving here.   She describes herself as having previously been a relatively relaxed and confident person, but she now needs a sense of control of her surroundings.    Finally,  the  ongoing  court  process  she  says  has  been  upsetting,

extremely traumatic, and disempowering for her.

1      R v McVeigh [2014] NZHC 1936.

Sentencing Act 2002

[8]      In any sentencing of this type issues of denunciation and deterrence are to the forefront.   Violent offending against  young women is a serious issue as is any attempt  to  abduct  and  engage  in  unwanted  sexual  activity.    On  this  occasion, Mr Lepper,  you  endeavoured  to  abduct  this  young  woman  for  the  purposes  of engaging in unwanted sexual activity with her.  Having said that, I need to impose here a sentence that is consistent with those imposed in broadly similar cases.  I also need to impose a sentence that is the least restrictive outcome having regard to the circumstances of your offending and your personal circumstances.

[9]      As both counsel in their submissions before me accepted, there is no tariff or guideline judgment of the Court of Appeal for offending of this type. That is because this type of offending can occur in an infinite variety of circumstances and it is therefore impossible to set out any hard and fast rules regarding the appropriate starting point to be applied.  Nevertheless, in a case called R v Hassan,2 the Court of Appeal indicated that a charge of the kind before me is a serious charge.  It is serious because it is likely to be just a short step away from the actual commission of some form of sexual offence.  This is demonstrated by the circumstances of your offending

here, Mr Lepper.  Your guilty plea to the charge of abduction with intent to commit unlawful sexual connection means that you accept that you abducted the 23 year old complainant here with the intent of sexually violating her.  Had she not been able to get away it is probable that that intent would have been fulfilled.

Personal Circumstances of the offender

[10]     I turn now to consider your personal circumstances.   There are two health assessor reports before the Court and a further report by Dr Bathgate.  Mr Lepper, these extensively consider your background and personal circumstances, and generally the two  health  assessor  reports  are  consistent  in  the information  they provide.

[11]     Mr Lepper, you are 37, you appear to have had an unstable and transient childhood, at various times living with your father, your grandmother, your mother,

2      R v Hassan [1999] 1 NZLR 14.

and a sister.  You say you were exposed to physical and sexual abuse at a young age. You left school at age 14 as a result of being suspended indefinitely. You have a long history of alcohol and drug use.  You say that you started using alcohol and cannabis at 11 years of age and smoked the latter daily.   You have also reported trying a variety of other drugs, although in one of the reports before me you attempted to downplay this history and claimed that you only use alcohol and synthetic cannabis. The reports suggest that your troubled childhood hindered your ability to develop healthy attachments or to care for people.  Additionally you received a moderately serious head injury and various physical injuries in a motor vehicle accident in 1994 when you were 17 years old. You had been driving a car while intoxicated and drove over a cliff.  A neuropsychological assessment conducted four years later found you to  have  difficulties  consistent  with  frontal  lobe  damage  relating  to  cognitive executive functions, attention, concentration, processing speed and visual motor ability.  There is no indication in the reports that this injury or its effects have had an effect on your day to day behaviour, but there are indications that it exacerbated your pre-existing behavioural difficulties and associated offending.

[12]     After your left school at age 14, Mr Lepper, you never returned to education and accordingly have no qualifications.   Your subsequent employment history is sporadic, mostly in forestry and fishing.

[13]     In terms of your offending history, Mr Lepper, you have amassed over 70 convictions.  You were first imprisoned aged 18 years for robbery.   Most of your offending relates to property, driving or dishonesty offences.   Your most recent offending, prior to that for which you are before this Court, included a conviction in

2004 for rape and unlawful sexual connection of a woman who was out jogging in the early morning.  You physically forced her into the bushes and threatened to kill her if she called for help.  You had lubricant and condoms with you suggesting the attack was premeditated.  On this conviction you were imprisoned until 2013.

[14]     In terms of violent offending, Mr Lepper, your convictions date back to the

1990s.

Preventive detention or finite sentence

[15]     A principal issue before me here today is whether the sentence  I am  to impose on you, Mr Lepper, should be a finite term of imprisonment, as Mr Andersen your counsel advocates, a term with a specified end date, or whether the sentence should be one of preventive detention as the Crown contends.

[16]     Preventive detention is one of the most serious punishments that can be imposed.   It is imprisonment for an indefinite time without any expiry date.   A prisoner’s release is entirely at the discretion of the Parole Board.

[17]     It is appropriate that I turn first to consider the sentencing range that would apply for a fixed term finite sentence.  I now do this.

Finite sentence – starting point

[18]     On this the Crown submits that a starting point here in the range of five to six years imprisonment would be appropriate.  Mr Andersen, your counsel, Mr Lepper, accepts this, but notes this should be at the lower point of this range.

[19]     The starting point range accepted by both sides here in my view is entirely appropriate. The majority of the cases to which I have been referred disclose starting points or final sentences of roughly the same length as the suggested starting point range here of five to six years.  In this regard I have considered cases referred to me of Bond3, Thomson4  Abdulhussein5, Burne6, Bradbury7, Taumaa8, Davis9, Parker10,

and Faatafa11.

3      R v Bond CD302/95, 8 November 1995 – starting point of nine years imprisonment.

4      R v Thomson CA235/01, 26 September 2001 – starting point of seven years imprisonment.

5      R v Abdulhussein CA175/01, 7 February 2002 – starting point of six years imprisonment.

6      Burne v R CA 367/01, 20 June 2002 – final sentence of five and a half years imprisonment.

7      R v Bradbury HC Auckland CRI-2003-044-4637, 20 July 2004 – final sentence of five years imprisonment.

8      R v Taumaa [2007] NZCA 22 – starting point of five years imprisonment.

9      R v Davis HC Christchurch CRI-2010-009-10257, 4 May 2011 – final sentence of five years imprisonment.

10     R v Parker CA286/97, 2 October 1997 – final sentence of three and a half years imprisonment.

11     R v Faatafa HC Auckland CRI-2009-004-8563, 25 June 2010 – concurrent sentence of three years imprisonment for an abduction offence.

[20]     There are of course elements of factual difference between all the cases.  The difficulty on the facts is that you, Mr Lepper, and your accomplice here were interrupted in your attack whereas in several of the other cases the victims were less fortunate.  Nonetheless the manner of the abduction in this case in my view is most comparable to the decisions in Abdulhussein, Burne and Bradbury.   In all those cases, as well as in the present case, the offenders targeted women who were in a vulnerable position, being alone outside at some time in the evening in relatively isolated surroundings.

[21]     In  my  view  there  are  several  aggravating  features  of  your  offending, Mr Lepper, in the present case that need to be taken into account:

(a)      First,  you  were  one  of  two  offenders  in  this  incident  and  you, Mr Lepper, were the instigator of the attack.  The sexual designs on the victim were primarily yours.

(b)Secondly,  you  targeted  a  vulnerable  young  woman  walking  alone along a road that was not well lit.

(c)       Thirdly, the attack lasted for some time.

(d)Fourthly, although  you  used no weapons,  your attack involved an intense physical struggle as indicated by the fact that you and your co- offender were not able to coerce the victim into the van, and by the fact that nearby persons were alerted.  The attack therefore involved violence.

(e)      Fifthly, the attack involved two male offenders against one female victim. This arguably exacerbated the vulnerability of the victim.

(f)      Sixthly, the offending occurred very shortly after your release from prison, Mr Lepper, for sexual offending.

(g)And lastly, the offending had a significant impact on the victim and she has since experienced significant anxiety.

[22]     It seems that here it is only the victim’s particular bravery and resistance that prevented this terrible attack from reaching a worse conclusion.  The fact that the offending was interrupted should not override the fact that your attack itself was nonetheless of a serious nature.  These features therefore warrant a starting point at the higher end of the spectrum, being six years imprisonment.  It is also important to bear in mind the sentence imposed on your co-offender.  Lang J imposed a starting point of four and a half years imprisonment, in light of the fact that Mr McVeigh was not the instigator of the offending.  A starting point of six years here would therefore sufficiently reflect the differences in culpability between you and Mr McVeigh.

Aggravating factors

[23]     I turn now to consider aggravating factors.  Before me both counsel appear to agree that an uplift is warranted for the fact of your previous offending, Mr Lepper. The Crown argues, and Mr Andersen seems to accept, that an uplift of two years from the starting point is appropriate.

[24]     Although your criminal history is lengthy, of particular concern are your most recently recorded offences before the offending at hand.  You were imprisoned for ten years in 2004 for rape and unlawful sexual connection and were only recently released from prison.  An uplift for previous offending is therefore appropriate given the relevant nature of those offences and the alarming similarity of both sets of offending.   Specifically both of these offences involved the targeting of a female unknown to you that happened to be alone in a public place.   However, the 2004 offending represents the only previous sexual offending in your conviction history, which is otherwise largely comprised of dishonesty and drug offending.   On that basis an uplift of 25% is appropriate amounting to 18 months.   This leads to a combined starting point of seven years and six months imprisonment.

Mitigating features

[25]     I now turn to I consider mitigating features, including any discount for your guilty plea.  It is accepted here that a discount for your guilty plea, Mr Lepper, would be appropriate.  The Crown argues that limited credit should be given in light of the delay in your entering your plea.   Mr Andersen however argues that a full 25%

discount can be given because he says the Crown does not take into account your psychiatric illness at the time of your apprehension.  As I see the position here, there was significant delay in your entering your guilty plea and a discount in the range of

15%, which is roughly 14 months, is warranted.   There are no other mitigating factors. This leads to a final sentence of six years and four months imprisonment.

[26]     The Crown submits that, if I am to impose a finite sentence here, then a minimum period of imprisonment (MPI) would be appropriate.  The factors to which I must have regard in imposing an MPI require me to consider several matters:

(a)       First, to hold the offender accountable for the harm done to the victim and the community by the offending;

(b)Secondly,  to  denounce  the  conduct  in  which  the  offender  was involved;

(c)       Thirdly, to deter the offender or other persons from committing the same or a similar offence; and

(d)      Finally, to protect the community from the offender.

[27]     In my view a lengthy MPI is warranted in this case.  This is on the basis of the seriousness of the offending, the need for accountability and deterrence, and the need to protect the community, given that your sexual offending, Mr Lepper, has been  previously  conducted  against  strangers.     Only  a  significant  MPI  would therefore ensure that you are incarcerated for a period of time that sufficiently serves the sentencing purposes of denunciation, deterrence, accountability and community protection.  An MPI of 60% is therefore appropriate, this amounting to three years and 10 months.

Letter to the Court

[28]     I now turn to the letter which you have written to the Court.  Mr Lepper, you have written a letter to the Court which I have read.  In this, you emphasise that you do not wish to downplay your offending, and you apologise for your behaviour

towards this victim.  You acknowledge that you “totally frightened her and scarred her life”.  You say that you know you are facing a long term of imprisonment and that you can only move on and will seek the help of programmes while incarcerated. You say you wish to undergo counselling for sexual offenders.

[29]     You request the Court not to impose preventive detention. You do not request this because you believe your actions were not serious, but because you say the threat of preventive detention has changed your thinking and behaviour.

Should a preventive detention sentence be imposed?

[30]     As I have noted earlier, the real issue I need to determine today is whether an end sentence of six years, four months imprisonment coupled with a minimum term of three years, 10 months imprisonment, which I have just mentioned, is sufficient to protect  the  community  from  the  likelihood  of  future  offending  at  your  hands, Mr Lepper.

[31]     I therefore need to determine whether, as Mr Andersen submits, I should impose that finite sentence or alternatively, as the Crown submits, whether I should impose the indeterminate sentence of preventive detention.

[32]     The  purpose  of  the  sentence  of  preventive  detention  is  to  protect  the community from those who pose a significant and ongoing risk to the safety of its members.12    The Court may only impose the sentence in circumstances where the

offender is over 18 years of age and has been convicted of a qualifying offence.13

There is no dispute in this case that you satisfy both of those criteria.   You are

37 years of age and you have previously committed the qualifying offence of rape. The charges on which you appear for sentence today are also qualifying offences for the purposes of a sentence of preventive detention.

[33]     Before a Court can impose a sentence of preventive detention it must be also satisfied that it is likely that the offender will commit another qualifying sexual or

violent offence if released at the end of a determinate sentence.  That is a matter that

12     Sentencing Act 2002, s 87(1).

13     Sentencing Act 2002, s 87(2)(a).

is in issue today because your counsel Mr Lepper, Mr Andersen, submits that I

cannot be so satisfied here.

[34]     In deciding whether or not to impose a sentence of preventive detention the

Court is also required to have regard to a number of other factors. These are:

(a)       First,  whether  there  has  been  any  pattern  of  serious  offending

disclosed by the offender’s history;

(b)Secondly,  the  seriousness  of  the  harm  to  the  community  by  the offending;

(c)       Thirdly,  the  information  indicating  a  tendency  to  commit  serious offences in the future;

(d)Fourthly,  the  absence  of,  or  failure  of,  efforts  by the  offender  to address the causes or causes of the offending; and

(e)       Finally, the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[35]     I propose to deal with each of these issues now.

Has there been any pattern of serious offending disclosed by the offender’s history?

[36]     Mr   Lepper,   you   have   a   significant   list   of   previous   convictions   –

70 convictions in all.  Most of them, other than your conviction for rape in 2004, are for offences of dishonesty, offences against property and driving offences, so I can put those to one side for present purposes.  A real issue here is whether the previous conviction  on  the  charge  of  rape  and  unlawful  sexual  connection  in  2004  is sufficient, when taken with your present offending, to establish a pattern of serious offending as referred to in s 87(4) Sentencing Act 2002.

[37]     On those convictions for rape and unlawful sexual connection which were entered in the High Court on 28 July 2004 you were sentenced, Mr Lepper, to seven

years and ten years imprisonment respectively.  I have had the benefit of carefully considering the summary of facts and the Judge’s notes on sentencing for those earlier convictions.  The offending on that occasion and in the present case, in my view, shows a disturbing degree of similarity in that, Mr Lepper, your intentions on both occasions were clearly to abduct total strangers walking alone at night and to rape  and  sexually violate them.    I also  think  it  is  significant  that  your present offending occurred so soon after you were released from prison following your earlier offending.

[38]     Although that earlier rape occurred over 10 years ago, since that time you have spent most of the intervening time, Mr Lepper, in prison and therefore you have been unable to offend against other women in this way.  The fact that you were able to offend so soon after your release, and in circumstances that had those similarities with your earlier offending, are sufficient in my mind to establish a pattern of serious sexual offending.  I reach that conclusion notwithstanding the fact that offending of this type has only occurred on two occasions.

Seriousness of the harm to the community by the offending

[39]    This really goes without saying.   Any form of sexual offending of this seriousness  is  a  matter  of  major  concern  for  the  community,  and  it  leads  to widespread distrust by females of men within the community.  I have read the victim impact statement that the complainant in the present case has prepared.   This demonstrates that your offending has had significant effects for her.  Fortunately, in the present case, your intention, Mr Lepper, to rape and sexually violate the victim was not achieved.  This is largely down to the determined resistance she put up to your attack.   Her calls for help were also heard by passers-by who were able to assist.   Despite the outcome, however, the victim has suffered significant harm. Clearly the complainant of the earlier abduction and rape also suffered serious harm.

Information indicating a tendency to commit serious offences in the future

[40]     I have received a significant quantity of material to assist me in relation to this  issue.    Health  assessors’  reports  have  been  received  from  a  psychiatrist, Dr David Parker, and from a clinical psychologist, Jade Walker, and also  (from

Mr Andersen) a report from Dr Bathgate.   I have had an opportunity to carefully consider them all.

[41]     Dr Parker’s report makes the following points:

(a)      Your exposure, Mr Lepper, to serious physical, sexual and emotional violence, has resulted in a failure on your part to develop a normal capacity for caring and empathy for others.

(b)Next,   he   says   your   lack   of   capacity   for   empathy   and   your normalisation of violence appear to underlie your willingness to use violence to obtain sexual gratification.

(c)      It  is  said  you  have  shown  a  lack  of  appropriate  boundaries  for behaviour  and  a  lack  of  empathy  that  has  resulted  in  repeated violation of the rights of others and frequent imprisonment.

(d)You have continued to abuse drugs, a significant risk factor for violent offending which it is said remains here.

(e)      You have a history of mental illness and you resumed treatment with anti-psychotic medication when arrested in October 2013.  Dr Parker is of the view that your most recent offence is an indicator of recent violent ideation and that, failure to take medication following release from prison in 2013, is evidence of your failure to respond appropriately to treatment.

(f)      Finally, Dr Parker is of the view that you, Mr Lepper, require ongoing treatment with anti-psychotic treatment and review by psychiatric services.

[42]     The psychologist Jade Walker’s report makes the following points:

(a)      Mr Lepper,  it  is  said  you  demonstrate  criminal  versatility  which includes not only violent sexual offending but also robbery by assault,

assault on a child and common assault.  Threats and intimidation have frequently been part of this.

(b)Next, it is said you have a pattern of responding to others with verbal aggression, threats to harm and/or kill if your needs and wants are not met within your desired timeframes.

(c)       Next, you have a history of making sexual propositions to strangers.

(d)The report goes on to say your behaviour in prison included sexual behaviours of concern, including concerns in relation to female custodial officers.

(e)      You denied responsibility for the 2004 charges of sexual violation and rape for a significant period, however, you appear now to have accepted responsibility.

(f)      Your current offence, it is said represents a rapid return to serious sexual offending within a very short time of your parole ending.

(g)You were diagnosed with a schizoaffective disorder in 2009, with symptoms that included auditory and command hallucinations, but this appeared to be stabilised on clozapine therapy in early 2012.

(h)      The report says that you have reported that you made a decision in

August 2013 to cease medication without consulting your psychiatrist.

(i)You claim that the victim in this case was chosen in order to rob her, that your co-offender had suggested sexual violation, and you had simply “gone along with it”, which is doubted.

(j)You have said you heard the voice of God endorsing the choice of victim in order to rob her.

(k)Lastly, there is an additional concern mentioned that a young co- offender was recruited by you with your current offending, indicating a willingness to manipulate susceptible others.

[43]     Taken as a whole I agree with most of the material that has been presented to me, that you are at high risk of offending in the future.  When coupled with all of the issues that you face and the circumstances in which both these sets of offending have occurred, I think that it is highly likely that you will reoffend again in a sexual way, Mr Lepper, unless you are willing to engage in intensive treatment whilst in prison.

The absence of, or failure of, efforts by the offender to address the cause or causes of the offending

[44]     Next I turn to consider the absence of, or failure of, efforts by the offender to address the cause or causes of the offending.   The material from the health professionals reveals that you have had some assistance in the past to address your offending.  But, Dr Parker notes in his report that while you had some insight that you were to an extent mentally ill and in need of treatment that failed to convince you to continue taking your treatment in 2013.  Dr Parker has said that you showed no acknowledgement of the suffering you have caused others, you deny the attempt to rape the victim of the current offence, and you took no responsibility for a past violent incident he mentioned in Rimutaka Prison.   Failure to reflect on past anti- social  and  violent  behaviour,  he  says,  suggests  that  the  risk  of  similar  future behaviour by you remains high.  As I have already noted Dr Parker concludes that you are at high risk of further reoffending and given your history of physical and serious violence it would appear reasonable to conclude Mr Lepper, that you are also at high risk of serious physical and sexual violence.

[45]     In Jade Walker’s report, it is concluded that you should be considered to be at high risk of sexual recidivism within five years of release from prison.  This is most likely to occur in situations of stress which increase levels of sexual preoccupation and sex drive together with the effects of your substance abuse.   In addition, Jade Walker considers you to be at high risk of general and violent recidivism within five years of release from prison.

Principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[46]     This factor speaks for itself.   Provided society can be adequately protected the   Court   should   impose   a   lengthy   determinate   sentence   rather   than   the indeterminate sentence of preventive detention.   But in my view, Mr Lepper, you pose a significant and ongoing risk here to the safety of members of the community and  a  sentence  of  preventive  detention  is  appropriate  because  of  the  following factors:

(a)      First, you are as I see it at high risk of further offending involving serious physical and sexual violence;

(b)Secondly,  your  lack  of  empathy  and  the  normalisation  of  your violence indicates a willingness to use violence to obtain sexual gratification;

(c)      Thirdly,  you  have  poor  insight  into  the  consequences  of  your offending;

(d)Fourthly, you have failed to take medication for an underlying mental illness which is a risk factor in the offending;

(e)      Next, in my view it is likely you will commit another qualifying sexual offence if released at any finite sentence expiry date; and

(f)      Lastly,   the   Court   cannot   have   confidence   a   finite   term   of imprisonment will mitigate the risks I have identified and provide adequate protection for society.

[47]     A sentence of preventive detention, Mr Lepper, in my view will protect the community from harm by guaranteeing that you will not be released until your risk of reoffending has been adequately addressed.   I am mindful too that preventive detention is not a sentence of last resort and it does in itself provide a real incentive for someone like you, Mr Lepper, to finally decide to seek the treatment and help

you so clearly need and that you say you want.  This rehabilitative help might well be furthered if you do now decide to engage and seek this treatment and help.

[48]     My conclusion in relation to the fact that you are likely to reoffend again in the future means that the necessary statutory criteria for the sentence of preventive detention have been established here.  And I have decided that I should exercise my discretion in favour of that sentence as the Crown submits, rather than in favour of the finite sentence.

[49]     I take the view that there is a real risk that if I had imposed a finite sentence of imprisonment here, Mr Lepper, you would accept that sentence and work towards completing it  without  fully engaging with  the  health  professionals  who  will  be providing assistance to you to deal with the issues that underlie your offending.  That would be most unfortunate because, even if the Parole Board kept you in prison for the full period of a finite sentence, you may still be released into the community without having fully addressed the issues underlying your actions.   That in turn would place the community severely at risk from the probability that you would offend again in a similar way in the future.

[50]     The purpose of the sentence of preventive detention  must  prevail  in the present circumstances.   That purpose, as I have already said, is to protect the community from further offending by people who have offended before in a similar way.

[51]     I consider that the only way, Mr Lepper, in which you will have the incentive to engage fully with health professionals is if you know that such an engagement is a prerequisite to being released.   Only in this I believe can the parole authorities be sure that you are properly motivated to address the causes of your offending.  Then, once you have engaged with health professionals and undergone treatment, you can be released once the parole authorities are satisfied that you no longer pose a risk to female members of the community.

[52]     For these reasons I have reached the clear view that the finite sentence of six years, four months imprisonment mentioned earlier would not be appropriate here, and that the indeterminate sentence of preventive detention must be imposed.

Sentence

[53]     Mr Lepper would you please stand.

[54]     Mr Lepper, on the charge of abduction with intent to commit unlawful sexual connection, you are sentenced to preventive detention and ordered to serve a minimum term of imprisonment of five years.

...................................................

Gendall J

Solicitors:

R P Bates, Dunedin

L A Andersen, Dunedin