R v Marshall
[2020] NZHC 1271
•8 June 2020
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF CONNECTED
PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2018-054-001353
[2020] NZHC 1271
THE QUEEN v
CAREY JOHN MARSHALL
Hearing: 8 June 2020 Counsel:
D Davies for the Crown
S Hewson for Mr Marshall
Judgment:
8 June 2020
SENTENCING NOTES OF DOOGUE J
[1] Carey John Marshall, you appear for sentence having pleaded guilty to four charges: sexual violation by unlawful sexual connection,1 sexual conduct with a child under the age of 12,2 knowingly making objectionable publications (all in
1 Crimes Act 1961, ss 128(1)(b) and 128B; maximum penalty of 20 years’ imprisonment.
2 Crimes Act, s 132(3); maximum penalty of 10 years’ imprisonment.
R v MARSHALL [2020] NZHC 1271 [8 June 2020]
relation to a girl between the age of four and seven),3 and bestiality (in relation to an adult woman).4 These are representative charges.
Background
[2] The first victim in this matter was a child. You abused her between the ages of four and seven. You were in a relationship with her mother, which allowed you access to her.
[3] You had a female co-offender in the sexual offending. In the normal sense of it, she is in my view also a victim of your bestiality offending. She was a friend of the child’s mother. Your co-offender lived in a sleepout at the two addresses that the victim and her mother resided in over the relevant period. Your co-offender and you would babysit the victim whilst her mother worked.
[4] When the victim was four years old, you started grooming her by touching and rubbing her. On a number of occasions, you rubbed her genitalia and her bottom. On the first occasion you offended against the victim with your co-offender, you asked your co-offender if she would like to “taste” the victim. You both went into the victim’s bedroom. Your co-offender placed her mouth onto the victim’s genitalia. This lasted about 10 minutes before you told the co-offender to get dressed and go to her room, as the victim’s mother would be home imminently.
[5] Throughout the duration of this offending you continued to touch the victim. You rubbed her genitalia. This would often happen when the victim’s mother was out of the house. Sometimes you would do this when the victim’s mother was in fact at home, but busy performing household tasks.
[6] On some occasions you would have sexual intercourse with the victim’s mother, leave the room, and then touch the victim’s genitalia. At other times the victim
3 Films, Videos, and Publications Classification Act 1993, ss 123(1) and 124(1); maximum penalty of 10 years’ imprisonment. The charging document records the maximum penalty as 10 years’ imprisonment. However, I note the maximum penalty was increased from 10 years to 14 years’ imprisonment in May 2015 (during your offending). For present purposes, the precise maximum sentence is not important.
4 Crimes Act, ss 143 and 66; maximum penalty of seven years’ imprisonment.
would be in bed with you and her mother while you were having sex, and you would touch the victim’s bottom.
[7] This sexual abuse of the victim was regular and became so normalised for her that when her mother left the house she would take her pants off in readiness.
[8] Following that first occasion, the sexual offending by you and your co-offender against the victim would occur about once a month. The pattern was that your co- offender would start by performing oral sex on you showing the victim how to do it. The victim would then perform oral sex on you whilst your co-offender performed oral sex on the victim.
[9] On one occasion, you were sitting on the couch watching television with the victim and her siblings. Your co-offender was also present. You told the other children to go to their rooms and play. You then told the victim to get on her knees. You unbuttoned your pants and pulled out your penis. You told the victim to suck it like a lollipop. She then sucked your penis. Following that you grabbed your co-offender by her ponytail and pulled her over to teach the victim how to perform oral sex. You ejaculated upon both the faces of your co-offender and the victim.
[10] Your co-offender observed you sexually offending against the victim approximately two or three times a month. This offending involved you getting the victim to perform oral sex on you. You told your co-offender that you did this every day with the victim.
[11] On a number of other occasions, you touched and penetrated the victim’s anus with your fingers. The purpose of this was to stretch the victim’s anus so that you were able to fit your penis inside it. You told your co-offender that you did not want to break the victim’s hymen or take her virginity, because if you were ever caught the victim would still have her hymen in place and it would not appear as if you had sexually offended against her.
[12] You told your co-offender that you would penetrate the victim with your penis to make it normal and natural for her. Your co-offender observed you telling the victim
to get on her hands and knees, which she would do with her bottom in the air and her chin on the ground. You would then put your penis into her anus. You would then ejaculate. On one occasion you made the victim move back and forward before you ejaculated.
[13] As part of the sexual offending against the victim, you regularly put your mouth on the victim’s genitalia and performed oral sex on her, as well as having her perform oral sex on you. This occurred while your co-offender was present, and it generally occurred when the victim’s mother was at work.
[14] You also took a number of photographs and video recordings of the victim performing sexual acts.
[15] On one occasion, when the victim was approximately four to five years old, you had the victim at your home address. You were alone in the bathroom with her. You made her undress and pose for you whilst you took photographs. This entire incident was filmed.
[16] Another video recording shows the victim alone in a bathroom with you. She was naked and rubbing her genitalia with her fingers, when you told her to show your co-offender how she “sucks cock”. The victim then performed oral sex on you. You told the child to say to your co-offender “this is for you …, because we love you”. The footage showed the victim stop performing oral sex upon you and say what you told her to say. At one stage the victim lay on the floor of the bathroom and rubbing her genitalia and inserted her fingers into her genitalia. You tell her to “get it wet” and asked her if she knew how. The victim then licked her hand before rubbing her genitalia again. You rubbed her clitoral area. During this incident, your penis was inserted into the victim’s mouth no less than 13 separate times.
[17] On another occasion you filmed the victim at your home address. The victim performed oral sex on you. During the incident you adjusted the victim’s hand to cup your scrotum. The victim gagged and removed her mouth from your penis. She smiled at you. You reinserted your penis into her mouth. Throughout this occasion, you inserted your penis into her mouth no less than seven times. During this occasion,
you engaged in a seriously abusive conversation with the victim. You also rubbed her bottom in between her legs.
[18] On another occasion, you made multiple videos and took photographs of the victim. One video shows the victim and your co-offender were interchanged approximately seven times while performing oral sex on you.
[19] The bestiality offending took place separately and was in relation to your co- offender.
[20] On multiple occasions you got your co-offender onto her hands and knees and then guided various dogs’ penises into her vagina, and at other times you would guide them into her anus. The dogs would often ejaculate inside your co-offender. On a number of occasions, you took footage of this.
Effect on victims
[21] It is necessary to take account of the effect that this offending has had on your victim. The victim impact statements made for incredibly sad reading. There is clear evidence of physical damage to the victim in terms of the loss of control of her bowels and her being scared to defecate. The extent to which your sexual abuse of her became normalised means that this will have caused profound and life changing harm to this girl. You turned her into a sexual object for your pleasure. The scale and regularity of your offending will have an enormous impact on her life which will not be fully evident for some time and will seriously negatively affect her psychological and social wellbeing.
[22] The victim has post-traumatic stress disorder which is causing major learning difficulties and low self-esteem. She has anger issues, and occasionally exhibits inappropriate behaviour towards male teachers. Her mother, not unnaturally, expresses concern about the victim’s future and the affect this offending will have on her, especially in future domestic and sexual relationships.
[23] You have heard the victim impact statement from the mother of the victim, read aloud today by the victim’s adviser, which states that you “took her innocence” and
have “ruined her childhood”. I have no doubt that both of those observations are wholly valid.
[24] There are two issues to be determined in this case. The first is the length of any finite sentence of imprisonment that you would receive should that be the sentencing option the Court selects. The second is whether the Court should sentence you to the indeterminate sentence of preventive detention.
Aggravated features of offending
[25] I now turn to the aggravated features of the offending. The first is the vulnerability of the victim as a four-year-old, with the offending continuing until she was seven. Her age and her vulnerability to being conditioned to the offending made her highly vulnerable.
[26] Secondly, your breach of trust after being trusted by the victim’s mother to look after the victim. Both you and your co-offender were trusted by the victim’s mother and by the victim.
[27] Thirdly, the involvement of your co-offender, usually at the same time is an aggravating factor, particularly as it further conditioned and normalised the activity for the victim.
[28] Fourthly, the scale and the frequency of the offending. The Court of Appeal held repeated rape or sexual violation and associated degradation (for example, videotaping and photographing the offending or offending whilst others were present) was more serious.5 You started to groom the victim with lesser sexual offending and increased the scale over time. You told your co-offender what to do and how to participate in the abuse and the offending was frequently videotaped or photographed.
[29]Fifthly, the degree of violation was frequent and high.
5 R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [47].
[30] Sixthly, the offending seemed to have involved planning and premeditation, with you organising opportunities to offend, groom the victim and normalise the abuse and violations. The harm to the victim will be lifelong.
[31] Finally, the offending has caused serious harm to the victim, as noted above at [21]-[23].
Finite sentence
[32] I propose first to determine the finite sentence the Court would impose on you in the event that it selected that type of sentence. In selecting a finite sentence, I propose to first identify the starting point that the sexual offending would attract. For this purpose, I treat the offending against the child victim as the lead offending.
[33] A principle of sentencing is that cumulative sentences are generally appropriate for offending that is of a different kind. In your case, while the bestiality offending might generally be described as sexual, in my view it is separate and a different kind of depravity than that of repeated sexual violation of a child. It was consensual in nature but involved the anal and vaginal penetration of the vulnerable person over whom you exerted control.
Starting point
[34] The starting point for the charges of unlawful sexual connection must be determined in accordance with the guideline judgment of the Court of Appeal in R v AM.6 In that case, the Court of Appeal identified different bands of offending based on aggravating factors inherent in different forms of offending. The Court then set starting points for offending within each band. The Court identified two sets of bands: the “rape” bands where the lead offence is rape, penile penetration of the mouth or anus, or violation involving objects; and the “USC” bands, for other violation where unlawful sexual connection is the lead offence.7 Your offending falls within the rape bands, in either band three or four.
6 R v AM, above n 5.
7 At [5].
[35] Band three has a starting point of 12-18 years’ imprisonment.8 This band encompasses offending accompanied by aggravating features at a serious level.9 It is appropriate for offending which involves two or more factors increasing culpability to a high degree, or more than three factors to a moderate degree.10 Single episodes which are particularly cruel, callous or violent will fall into this band.11 Examples of cases in band three can largely be distinguished from those in band four on the basis that they occurred within a single incident.12
[36] Band four has a starting point of 16-20 years’ imprisonment.13 The same sorts of factors that place offending in the higher end of band three are also likely to be present, but offending in band four is likely to involve multiple offending over considerable periods of time (as opposed to a single incident).14 The Court of Appeal noted the paradigm case of offending within band four is that of repeated rapes by a family member over a period of years.15 Offending of that nature, especially if it involves children, attracts a starting point at the higher end of band four.16
Submissions
[37] The Crown submits that your offending is properly placed within band four of R v AM, where an available starting point is between 16 and 20 years. They say that a starting point of 18 to 19 years (for all offending involving the victim, including the objectionable material charges), with an uplift of 18 months to 24 months for the bestiality offending is warranted. They further submit that a constrained allowance should be made for any personal mitigating factors (if any), and a 15 to 20 per cent discount for your guilty pleas. The Crown submits an end sentence of 16 to 17 years imprisonment is appropriate.
8 At [90].
9 At [105].
10 At [105].
11 At [105].
12 At [105].
13 At [90].
14 At [108].
15 At [109].
16 At [109].
[38] Mr Hewson submitted that your offending is properly placed within the middle of band three of the USC bands in R v AM, attracting a starting point of between 12 to 18 years. In addition, on a somewhat diluted basis in comparison with his written submissions, he submitted that there should be some parity with the classification given to the gravity of your co-offender’s offending, because of a considerable overlap between your respective offending. He suggests there be a starting point of 16 and a half years.
[39] Mr Hewson’s further submission is that your co-offender’s sentence is relevant to your sentencing. Your co-offender pleaded guilty to three charges of sexual violation by unlawful sexual connection, six charges of making an objectionable publication, and one charge of bestiality.17 She was sentenced to a total of six years, six months’ imprisonment, with no minimum period of imprisonment.18 Judge Large put the sexual violation and objectionable publication offending in band three of R v AM and set a starting point of 14 years’ imprisonment. He then uplifted the term of imprisonment by six months for the bestiality charge.19 He gave a discount of 18 months for the insight your co-offender had developed into the effect and impact of the offending on the victim.20 From there, he gave a 50 per cent discount for her guilty plea and “all relevant personal factors”.21
My decision
[40] In any case involving sexual offending of this magnitude, issues of deterrence and denunciation are primary considerations. The sentence must hold you responsible for your actions. It must also deter you, and others who may think like you, from engaging in similar acts in the future. Having regard to s 8(d) of the Sentencing Act 2002 (the Act), I must impose a sentence close to the maximum penalty for the most grave offending. Taking into account the totality of the aggravating features I have mentioned and the effects on the victim of your offending, it is hard to imagine a worse case of sexual depravity on a child.
17 [2019] NZDC 8858.
18 At [74].
19 At [63].
20 At [70].
21 At [71].
[41] As you were clearly the leader in this offending, I do not consider the gravity of the circumstances of your offending are similar enough to make your co-offender’s sentence relevant to your sentencing. The Judge who sentenced your co-offender careful to fully set out and assess her personal circumstances and I have read his sentencing notes. Your co-offender was herself vulnerable, having suffered severe sexual abuse for approximately eight years from the age of four.22 After receiving psychological treatment, she explained that her own abuse had caused her to see this offending as acceptable.23 At the time the offending began, she was 20 years old, while you were 31 years old. At the time of the offending, she was poorly nourished, using methamphetamine, and open to persuasion to behave in ways that damaged children.24 She was “subsumed” into the relationship with you, was unable to support and express her own opinions within the relationship and was emotionally dependent on you, and felt coerced by you.25 Her offending was at a lesser level than yours.26
[42] Counsel for the Crown have referred me to a number of cases to assist in the determination of where within band four your offending sits.
[43] I consider that your offending contains several of the hallmarks of that in Ellmers v R, which fell at the high end of band four.27 The offender in Ellmers committed similar offending to you, against two victims while they were aged three to seven years old, and nine to 12 years old. Like your offending, this involved breach of trust, an increasing scale and frequency of offending, a frequent and high degree of violation, and planning and premeditation. The offender in Ellmers was also charged in relation to a third victim, for entering into a deal for the purpose of sexual exploitation. He was also charged with possession of, and supplying, objectionable material. The High Court treated the sexual violation charges against the first two victims as the lead offences, placed these in band four, and set a starting point of 19 years’ imprisonment. The High Court then imposed an uplift of five years’
22 At [65].
23 At [69].
24 At [69].
25 At [66].
26 At [55].
27 Ellmers v R [2013] NZCA 676.
imprisonment for the third victim and the objectionable material, resulting in a total starting point of 24 years imprisonment.
[44] However, I note this must be balanced against the example given by the Court of Appeal of a case that would fall at the lower end of band four, which involved similar offending: R v N.28 The offender in that case forced his stepdaughter, while she was aged between seven and nine years, to ensure rape, sodomy, digital penetration and oral sexual connection.
[45] Although noting the key difference between your offending and the lead offending in Ellmers is that you have only offended against one victim, your offending is otherwise very similar to the offending against the first victim (especially in terms of the age of the victim, and the degree of violation). In distinction with both Ellmers and R v N, I consider your offending is further aggravated by the presence of a co- offender. For the lead offences (of sexual violation by unlawful connection, sexual conduct with a child under the age of 12, and knowingly making objectionable material), I therefore adopt a starting point of 18 years’ imprisonment.
[46] In respect of the bestiality charge, I have regard to the following. The offending is another manifestation of your depravity. The seriousness of the sexual abuse of animals is recognised by the maximum penalty (seven years’ imprisonment). It is important to note that it carries the same maximum penalty as indecent assault and a greater maximum penalty than performing an indecent act on an animal or doing an indecent act in a public place. The offending against these animals happened several times a week and occurred with a large number of dogs.
[47] Given these aggravating factors I have come to the conclusion that the bestiality charge will bear a sentence of five years’ imprisonment which would bring me to a starting point for your total offending of 23 years’ imprisonment.
28 R v N CA88/05, 23 November 2005 as cited in R v AM, above n 5, at [109].
Totality
[48] Given that the sentencing process in the present case effectively involves the imposition of cumulative sentences it is necessary for me to have regard to the issue of totality. This means that I must ensure that the end finite sentence would not be out of all proportion to the overall gravity of the offending.29
[49] Sentencing is not a mathematical exercise. It must involve a “full evaluation of the circumstances to achieve justice in the individual case”,30 which requires flexibility and discretion.31 Based on all I have read and considered, I adopt an end starting point of 20 years and six months’ imprisonment.
[50]I turn now to your personal circumstances.
Aggravating factors
[51] You have a previous criminal history but there is no criminal history in relation to sexual offending of any kind. You do have dishonesty, violence and drug related convictions. I do not consider that any uplift is appropriate for these convictions, but nor do I consider there should be any discount for previous good character.
Mitigating factors
[52] The only adjustment I need to make to the starting point I have selected is that necessary to reflect your guilty pleas. You entered your guilty pleas when the matter was set for trial. You are entitled to a discount as a result. The Crown submits it would be appropriate for it to be in the region of 15-20 per cent rather than 25 per cent having regard to the fact that the pleas were not entered at the earliest available opportunity. I agree with their submission. I propose to give you credit for your guilty pleas of four years, which is a discount of approximately 20 per cent.
[53] Thus, the finite term of imprisonment I will impose is 16 years and six months. The seriousness of the offending requires consideration of a minimum period of
29 Sentencing Act 2002, s 85(2).
30 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [38].
31 Zhang v R [2019] NZCA 507 at [120].
imprisonment. In your case the Crown quite rightly in my view seeks a minimum period of imprisonment of 10 years or two thirds of the sentence imposed. Section 86(2) of the Sentencing Act allows the court to impose a minimum period of imprisonment that is longer than the period otherwise applicable under s 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
[54] I set the minimum period of imprisonment at 10 years because all of these purposes apply to you and your offending.
Should a sentence of preventive detention be imposed?
[55] The Crown asks me to impose an indeterminate sentence of preventive detention rather than a finite sentence. The Court has the necessary jurisdiction to impose that sentence. The only issue is whether it should exercise its discretion to do so.
[56] The sentence of preventive detention may be imposed where the Court is satisfied that the defendant is likely to commit another qualifying sexual or violent offence upon release after serving any sentence the Court might impose. In deciding whether or not to impose a sentence of preventive detention, the Court is required to take into account the factors set out in s 87(4) of the Sentencing Act. Having considered those factors, the Court is required to stand back and determine the manner in which it should exercise its discretion. The underlying concern the Court is required to address is whether the defendant is likely to remain an ongoing risk to the safety of
the community that can only be met by the imposition of a sentence of preventive detention.
Section 87(4)(a): any pattern of serious offending disclosed by the offender’s history
[57] Your counsel submits that the charges for which you appear for sentence today cannot be realistically described as establishing a discernible pattern of offending. He points out that the offending is contained within a four-year chapter of your life, characterised by: unusual living arrangements; increases in both range and quantity of substance abuse; and increasing stressors and opportunity. Further, he points to the fact that there is no other pattern of similar or serious offending or other qualifying offences in your history. He therefore submits that the Court cannot be satisfied that this particular factor points towards a sentence of preventive detention.
[58]I agree with that submission.
Section 87(4)(b): the seriousness of the harm to the community caused by the offending
[59] Sexual offending of this type causes incalculable harm to the community. First, it causes extremely serious harm to the victim themselves. Second, parents and caregivers of victims of this type of offending suffer badly because they question whether they could or should have taken steps to ensure that the offending did not or could not happen.
[60] Finally, this type of offending has enormous implications through the community because children and women realise they cannot trust strangers and children cannot even trust people who may be friends or acquaintances of their parents or caregivers. Offending of this type leads to a total breakdown of trust within the wider community, with all the social implications that this entails.
Section 87(4)(c): information indicating a tendency to commit serious offences in the future
[61] In considering whether or not you have a tendency to commit serious offences, I have the benefit of two health assessors’ reports.
[62] The Court of Appeal in Jenkins v R stated a high likelihood of reoffending in light of personal history, personality traits and ongoing denial of responsibility are crucial indicators in the predictive exercise under s 87.32 Here, one of the reports assesses you as being of high risk of reoffending, and the other says that due to your personality dysfunction there would be an increased risk of further sexual offending.
[63] Dr Melanie Simons, registered clinical psychologist, assessed you as being at high risk of sexual reoffending. Were you to reoffend this would most likely include sexual offending against a child, or internet offending involving sexual images of young children, or bestiality offending.
[64] Dr Barry Walsh, forensic psychiatrist, reported that your repetitive and serious sexual abuse implies a high level of sexual deviance as well as repeated offending over a long period of time. He found your account of your actions unconvincing and said that this, together with aspects of your history, pointed to substantial personality dysfunction. This led to him reporting a high level of concern for your potential for further offending in a similar manner, were you to be released at this point.
[65] Nevertheless, Dr Walsh did indicate that interventions that may occur during this time in custody as well as arrangements for your release when you return to the community may impact upon this risk. To this end, your counsel submitted that although there are treatment inhibitors presently identified that revolve around your denial and minimisation, they have to be seen in the context of your not having received any treatment to date. Further, he pointed to the fact that there are clear examples of you being able to manage yourself in the community without any offending, yet alone sexual offending, given that you are 39 years of age and this is your first sexual offending. Mr Hewson argued that a lengthy determinate sentence can provide adequate protection for society, especially when taking into account the availability of setting of non-parole periods and of imposing extended supervision.
[66] For the sake of completeness, I refer to the report that was filed this morning from Laura Howard, clinical psychologist. It, in detail, traverses your history of abuse at the hands of others. Her assessment is that you have some insight into your
32 Jenkins v R [2014] NZHC 1923.
difficulties, but her focus, of course, was not insight into your proclivities for child sexual abuse and bestiality, but rather for post-traumatic stress disorder and depression.
[67] Thus, the psychiatric and psychological evidence provides powerful support for the proposition that you present as a risk for sexual offending in the future.
Section 87(4)(d): the absence, or failure of, efforts by the offender to address the cause or causes of the offending
[68] I accept that you have not had the benefit of any intensive therapeutic programmes designed to address the underlying causes of your offending. That is a factor in your favour in considering whether or not to impose a sentence of preventive detention.
Section 87(4)(e): the principle that a lengthy determinative sentence is preferable if this provides adequate protection for society
[69] This factor speaks for itself. It reflects Parliament’s view that the Court should sentence offenders to finite sentences, provided such sentences adequately protect the community from the prospect of future offending. Again, your counsel relies on this factor as indicating that a finite sentence should be imposed rather than a sentence of preventive detention.
Exercise of the discretion
[70] Having considered these factors, it is now necessary for me to stand back and determine how I should exercise my discretion. As I have indicated, your counsel points to the fact that you have never had the opportunity to undergo intensive treatment for the causes underlying your offending. He also points out that you have never been sentenced to imprisonment before and that it is likely that the Chief Executive of the Department of Corrections will seek an extended supervision order on your release. This will require you to be subject to stringent supervision for 10 years after you are eventually released from prison.
[71] I consider several factors are significant when considering the manner in which I should exercise my discretion. First, your offending demonstrates that you did take an opportunity available to you to offend sexually against this victim. You, even as you stand here today, presently are in denial and minimising your offending: I have been able to see that from the way you have been shaking your head from side to side at times during this sentencing. Your psychological makeup is a result of the unfortunate experiences you yourself suffered within your home environment. This means that your psychological makeup is such that it is going to be extremely difficult for therapeutic intervention to succeed. Nevertheless, there are examples of you being able to manage yourself in the community without reoffending, including not offending sexually.
[72] You have the opportunity to take advantage of therapeutic intervention in prison, and the risk that you present will mean an extended supervision order is highly likely on your release.
[73]You are 39 years of age.
[74] You have indicated willingness to engage in treatment which has the potential to provide you with the skills to manage the risk of your offending. However, you deny significant aspects of your offending which is likely to impact on your ability to engage in treatment successfully.
[75] In summary, therefore, I find there is clearly evidence indicating a significant risk of reoffending. You have not been treated previously for sexual offending. In Jenkins v R, Justice Lang imposed preventive detention even though the appellant had received no treatment and had never before been sentenced to a term of imprisonment. The Crown submits that even if you were to undertake treatment, the risk of your reoffending may still be very high.
[76] However, unlike the appellant in that case, who had offended against multiple victims, you have offended against this one victim in a discrete period of time in your life. I consider you need to be afforded the opportunity to address the underlying
causes of your offending and I propose to deal with that by way of a finite sentence and a minimum non-parole period of 10 years.
Sentence
[77] For the purpose of imposing the final sentence, I intend to take the sexual violation by unlawful sexual connection charges as the lead charges.
[78] On each of the sexual violation charges you are sentenced to 16 years and six months’ imprisonment. In respect of those charges, and that sentence, I impose a minimum non-parole period of 10 years.
[79] On the sexual conduct with a child under the age of 12 charge you are sentenced concurrently to seven years’ imprisonment.
[80] On the knowingly making objectionable publications you are sentenced concurrently to five years’ imprisonment.
[81] On the bestiality charge you are sentenced to concurrently to five years’ imprisonment.
[82] You will automatically be registered on the Child Sex Offender Register as per the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.
[83] Given your convictions for sexual violation by unlawful sexual connection and sexual conduct with a child under the age of 12, you are now subject to the three strikes law under s 86B(1)(a) of the Sentencing Act. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists the “serious violent offences”.
(a)If you are convicted of any serious violent offences, other than murder, committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
(b)If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
[84] You will be given a written notice that sets out the consequences if you are convicted of any serious violent offence after the warning I have just given you.
[85] There will be an order for the destruction of the electronic storage devices and your co-offender’s laptop.
[86] In addition to the standard mandatory suppression orders, I suppress the identity of your co-offender.33
Doogue J
Solicitors:
Crown Solicitor, Palmerston North
33 Criminal Procedure Act 2011, s 202.
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