R v Moore
[2022] NZHC 2635
•12 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-004-7154
[2022] NZHC 2635
THE KING v
FABIAN WHATI MOORE
Date of hearing: 12 October 2022 Appearances:
J V Barry and L Dittrich for the Crown S J Gray for Mr Moore
Date of sentence:
12 October 2022
SENTENCING NOTES OF JAGOSE J
Counsel/Solicitors:
S J Gray, Barrister, Auckland Meredith Connell, Auckland
R v MOORE [2022] NZHC 2635 [12 October 2022]
[1] Mr Moore, as you know, on 5 May 2022, a District Court jury found you guilty of one charge of doing an indecent act on a child.1 As a sentence of preventive detention might be appropriate, you have come to me in this Court to sentence you for that offending.2 In sentencing you, as you have just heard me say to Ms Gray, I must accept as proven all facts essential to your established guilt.3
[2] I have read and listened to all the lawyers have had to say, both for you and for the Crown. As you have heard, they agree your offending alone should not see you sentenced to much more than the time you already have been in custody since your arrest in September 2020. Instead, at issue is if you should be sentenced to preventive detention, to protect the community from you if you pose a significant and ongoing risk to its members’ safety.4 That would require me to be satisfied you are likely to commit another serious sexual offence if released on your sentence’s expiry date,5 and then to take into account a range of other factors.6 Preventive detention means you would have to demonstrate you no longer posed a risk to be eligible for parole. Otherwise, your lawyer, Ms Gray, accepts a much longer determinate sentence including a minimum period of imprisonment is necessary.
[3] The lawyers’ submissions are detailed and lengthy. I have given them careful consideration. I am not going to recite them, because sentencing is an intense exercise of my own judgement. I am not bound by the lawyers’ views; I have to come to my own decision. To meet sentencing’s multiple purposes,7 I must satisfy myself of the appropriate sentence for the gravity (or seriousness) of your offending, including your
1 Crimes Act 1961, s 132(3); maximum penalty: 10 years’ imprisonment.
2 Sentencing Act 2002, s 90.
3 Section 24(1)(b).
4 Section 87(1).
5 Section 87(2)(c).
6 Section 87(4). Essentially codifying the common law principles for preventive detention in R v Leitch [1998] 1 NZLR 420 (CA), the factors are: (a) any pattern of serious offending disclosed by the offender’s history; (b) the seriousness of the harm to the community caused by the offending;
(c) information indicating a tendency to commit serious offences in future; (d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and (e) the principle a lengthy determinate sentence is preferable if this provides adequate protection for society.
7 Section 7: accountability, responsibility, victims’ interests, reparation, denunciation, deterrence, community protection, rehabilitation and reintegration.
culpability (or responsibility) for it, as the least restrictive outcome appropriate in the circumstances.8
Background
[4] I need first to cover off the background to your offending, to let other people know the conduct for which I am sentencing you.
[5] The primary victim of your offending is your former housemate’s infant daughter, then aged 16 months and sleeping on a sofa in the lounge. Also living in the house were her older siblings, aged three and I think eight years. Early in the morning of 9 September 2020, your housemate had to leave the house and asked you to listen out for the children. On her return a few hours later, she found you partly naked, asleep on the sofa, curled around the clothed and sleeping infant facing into the back of the sofa. Given your conviction by the jury, the essential facts are you touched her body, in objectively indecent circumstances,9 of which circumstances you were aware.10 The indecency is you were naked from the waist down.
Victim impact statement
[6] I have a victim impact statement from the infant’s mother. She says your offending as a guest in her house has broken her trust in others and in herself as a mother. Her memory of finding you partially undressed with her daughter on the sofa is a source of constant pain, “a dark nightmare”. Her statement helps me understand a victim’s view of your offending. And I encourage you to reflect on it with an open mind, to inform you of her perspective of the impact of your offending.
8 Section 8.
9 Seymour v Police [2021] NZCA 637 at [50], applying Rowe v R [2018] NZSC 55, [2018] 1 NZLR 875 at [62], [63] and [65].
10 R v Aylwin [2007] NZCA 458 at [35].
Personal circumstances
—criminal history
[7] You were nearly 47 years old at the time of your offending. Your criminal history includes 10 sexual offences committed between 1990 and 2005: one of rape;11 four of sexual violation by unlawful sexual connection;12 and five of doing an indecent act on a child, as is your present offence.
[8] On sentencing you for the last of those in 2006 —when you were 32 years old, after a ten-year gap in such offending — Ellen France J warned “if you re-offend in the same way on your release, you are then likely to face a sentence of preventive detention”.13 Instead, she sentenced you to three years and four months’ imprisonment with a minimum term of two years,14 to be served cumulatively on your then seven years’ imprisonment for the rape, sexual violations and assault of your former partner. You have other violence convictions.
[9] Following that sentencing, in 2010, you were made subject to the maximum 10-year extended supervision order (“ESO”), intended to protect the community from your “real and ongoing risk of committing serious sexual or violent offences”.15 Such only could be ordered on the basis you had a pervasive pattern of serious sexual or violent offending, and there was a very high risk you would commit such in the future.16 And the 10-year period thus was the minimum period required for community safety in light of the seriousness of the harm you risked to victims and the risk’s likely duration.17 A condition of the order was you wear a tracking bracelet, which you had removed at some point prior to the present offending.
11 Crimes Act, ss 128(1)(a) and 128B.
12 Sections 128(1)(b) and 128B.
13 R v Moore, HC Hamilton CRI-2006-019-1786, 9 May 2006 at [43].
14 At [48]–[49].
15 Parole Act 2002, s 107I(1).
16 Section 107I(2).
17 Section 107I(5).
—PAC report
[10] For your sentencing, I have a pre-sentence report prepared by the Department of Corrections. It records your 22 convicted breaches of the ESO, although counsel for the Crown counts 26, including of its conditions against associating with children or at places they frequent and against substance abuse. As a result you have spent only “relatively brief periods in the community” since the order’s imposition. The report- writer assesses you as having a high likelihood of reoffending and causing harm to others, observing your “pattern” of offending against girls in their family homes after befriending their mothers. Taken together with your extended supervision non- compliance, and your participation in relapse prevention groups on release from custody in 2012, 2013 and 2015, she says your risk “cannot be sufficiently mitigated in the community”.
—health assessor reports
[11] In sentencing you with consideration for preventive detention, France J necessarily had two health assessor reports about the likelihood of you committing further serious sexual or violent offending.18 A psychiatrist reported your advice in 2006 “for ten years you have been battling your attraction for female children[, which]
… recurs when you are using alcohol and cannabis”. She presciently thought your re-offending was “just a matter of time”.19 A psychologist observed your “intensified attraction towards vulnerable young victims”, commending your treatment and counselling in detention after completion of any sentence.20
[12] To consider preventive detention again, I also have reports from another psychiatrist and psychologist. Dr Jeremy Whiting, a forensic psychiatrist employed by the Waitematā DHB, reassessed your risk of future sexual offending. He concluded you presented on 16 of 20 identified risk factors,21 and two more being partially present (only one, of ‘sexual health problems’, not being present at all and the other not recorded given difficulties in scoring your attitude on supporting or condoning offending). Dr Whiting was ambivalent about your ten years free of offending after
18 Sentencing Act, s 88(1)(b).
19 R v Moore, above n 13, at [17]–[19].
20 At [20]–[21].
21 Referring to Douglas Boer and others Sexual Violence Risk–20, Version 2 (2018).
completing a sex offenders programme, observing you required a high degree of oversight which, together with your recall to prison on repeated breaches, “may have played an important role in preventing re-offending”. He therefore assesses your risk of sexual recidivism, especially as against “young females”, as “high” if you were now to be released into the community. He notes your poor self-regulation, and the benefits of preventive detention in enabling assessment of any treatment gain prior to your release. Regardless, he recommends your engagement in further sex offenders treatment programmes.
[13] Chelsea Richards, a clinical psychologist for the Department of Corrections, confirmed you present at the highest (“well above average”) risk of sexually reoffending,22 most likely, she says, by penetrative or otherwise inappropriate touching of female children probably known to you. Despite your completion of intensive psychological treatment and your extended supervision on release, she is concerned you have “continued to place [yourself] in high-risk situations, abused substances and had sporadic unsupervised contact with children”. You have heard from the Crown that includes your perception they were sexually provocative to you in a playground. Ms Richards attributes any desistance in your sexual offending over the prior fifteen years to be “primarily due to [your] being under intense scrutiny” enabling professional intervention rather than any self-regulation. She too says you will have a “high level of need” on release.
Approach to sentencing
[14]I now explain how I will go about your sentencing.
[15] The usual sentencing method involves two stages. First, I decide a starting point for the type of offending for which you are convicted. That involves identifying also any aggravating or mitigating features of the offending.23 Then I take into account all aggravating and mitigating factors personal to you, to be calculated as a percentage of the starting point.24
22 Referring to Grace and Wilson Automated Sexual Recidivism Scale – Revised (2014).
23 R v Taueki [2005] 3 NZLR 372 (CA).
24 Moses v R [2020] NZCA 296, [2020] NZCA 296 at [46]–[47].
[16] At least arguably, that also is the beginning for consideration of any sentence of preventive detention, because then I must be satisfied you were likely to re-offend if “released at the sentence expiry date” of any other sentence open to being imposed.25 Except in the most general and unsatisfactory terms, I cannot assess that likelihood without identifying the other sentence. And the objectives materially are distinct: sentencing addresses a range of purposes, as I have explained;26 preventive detention has only one, community protection.27
[17] Your lawyer points me to a Court of Appeal decision,28 in which the opposite course was taken, to conclude first preventive detention was not the appropriate course and then to uplift the determinate sentence from 15 to 39 months.29 But that case is distinguishable from your own: the course of offending there was much less serious, largely comprising lower-level indecent assault and criminal harassment of women; and the defendant had not faced any lengthy custodial sentence, meaningful exposure to rehabilitative programmes, or supervision. Preventive detention in those circumstances was not appropriate, leaving the Court of Appeal to uplift the usual starting point by more than 150 per cent. It is a singular decision, perhaps explicable by its appellate nature, even if expressed at odds with the statutory principle “a lengthy determinate sentence is preferable if this provides adequate protection for society”.30
—determinate sentence
[18] So far as a determinate sentence is concerned, “the likely sentencing outcome for sexual offending against children is imprisonment”,31 to achieve denunciation and deterrence objectives.32 The varied circumstances in which indecent acts arise make comparisons difficult, and there is little binding appellate guidance for indecency cases.33 The particular indecency here is your being naked from the waist down in determined bodily contact with an infant.
25 87(2)(c).
26 At [3] above.
27 Sentencing Act, s 87(1).
28 Carline v R [2016] NZCA 451.
29 At [23].
30 Sentencing Act, s 87(4)(e).
31 Kennedy v R [2011] NZCA 569 at [8], citing R v S (CA465/05) CA465/05, 11 April 2006 at [12].
32 ZZ (CA369/11) v R [2011] NZCA 662 at [36].
33 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [3].
[19] A starting point of perhaps 18 to 24 months is available for that core offending toward (but not at) the lower end of indecent acts,34 uplifted to mark your significant breach of trust in respect of a particularly vulnerable infant.35 I say ‘not at’ the lower end in part because the scheme of sexual offences qualifying for preventive detention is those punishable by 7 years’ or more imprisonment,36 in which doing an indecent act on a child carries a maximum term of 10 years’ imprisonment. Your offending thus is at least low to moderate in the scheme of qualifying sexual offending.
[20] Your offending further is aggravated by its recidivist nature in the wake of your deliberate avoidance of the ESO’s protections. I do not accept it is either in de-escalation of your prior offending; still less, an aberration over an extended period of non-offending. Rather I perceive, to the extent they were effective, the custodial and supervisory constraints on your freedom meant only you lacked opportunity to offend. That the offending now is against an infant rather than older children might be thought an escalation to avoid detection, yet still characteristically predatory of the vulnerable.37 An additional three to six months’ uplift leads to a starting point of 21 to 30 months’ imprisonment. There are no personal mitigating factors.
[21] I settle on a mid-point sentence, rounded up to 26 months’ imprisonment. Effectively, the duration of your pre-sentence detention since arrest in September 2020 would make you eligible for release in the next few weeks.38 Any minimum period of imprisonment is therefore superfluous.
[22] Given your high risk of reoffending then, protection of the community may justify a discrete uplift.39 But the community only adequately would be protected by your further time in determinate custody if it offered realistic prospect of your reform for release. Given the continuation of your sexual offending against children despite
34 Compare McLeod v R [2022] NZCA 150; and Anson v R [2014] NZCA 135 at [50].
35 Pou v R [2020] NZCA 160 at [74], citing R v H [2008] NZCA 237 and R v Johnson [2010] NZCA
168. See also R v R [2018] NZHC 2766 at [28].
36 Sentencing Act, s 87(5).
37 McInnes v R [2016] NZCA 216 at [21(a)].
38 Parole Act, s 88(1).
39 Bell v R [2017] NZCA 90 at [19], citing R v Leitch [1998] 1 NZLR 420 (CA) at 430 and
D (CA197/2014) v R [2014] NZCA 373 at [19]–[21].
intensive rehabilitation and extended supervision, I see no such prospect. Custodial time alone obviously is an inadequate incentive.
—preventive detention
[23] There can be no doubt sentencing you on your conviction for an indecent act on a child may engage preventive detention. Your case is exactly as the Court of Appeal identified as qualifying “exceptional” indecency offending, characterised by your “persistent, knowing behaviour, despite firm warnings …, accompanied by the necessary cumulatively serious harm.”40 None of the features leading other judges away from preventive detention — such as a lack of warning, or untried custody, rehabilitation or supervision — is present here.41
[24] I am satisfied you are likely to reoffend if released on expiry of a determinate sentence.42 The pattern of your offending is as identified by the Corrections’ report writer,43 misusing adult relationships to obtain intimate access to vulnerable children. The seriousness of that harm to children, entitled to look to adults for their nurture and protection, is incalculable. All the reports I have affirm your tendency to commit similar offending in the future. Intensive rehabilitation measures have not taken hold for you, and you deliberately have avoided extended supervision’s strictures. I already have noted the inadequacy of a lengthy determinate sentence.44
[25] Standing back — observing the 30-year span of your sexual offending, in which you have amassed six convictions for offending against five different children (as well as against your then partner), and the inutility of extended supervision over you for practically the whole period of its 10-year operation — I am certain only the incentive of release on your demonstrable reform will be sufficient to afford adequate community protection.45 I will impose a sentence of preventive detention on you.
40 R v Parahi [2005] 3 NZLR 356 (CA) at [86].
41 See R v Parahi, above n 40; R v Kahu [2010] NZCA 120; and Carline v R, above n 28.
42 Cooper v R [2020] NZCA 683 at [24].
43 At [10] above.
44 At [22] above.
45 Morris v R [2021] NZCA 491 at [42], referring to R v Parahi, above n 40, at [87] and McDonald v R [2009] NZCA 248 at [45].
[26] With preventive detention, I must order a minimum period of imprisonment of at least 5 years, meaning a period in which you would be ineligible to apply for parole, here being the minimum required for community safety given your age and the risk you present to that safety.46 Your age now at nearly 50 does not reduce your risk.47 The unserved balance of a five-year minimum sentence would enable Ms Richards’ “most appropriate rehabilitation pathway”: your return to a special treatment unit for child sexual offenders or (if necessary) waitlisted for an intensive programme adjusted for cognitive difficulties.
Sentence
[27] Mr Moore, please stand. On your conviction for doing an indecent act on a child, I sentence you to preventive detention with a five-year minimum period of imprisonment. You may stand down.
—Jagose J
46 Sentencing Act, s 89.
47 R v Steedman CA307/01, 27 February 2002 at [32]: “Young people are seriously vulnerable to sexual offending by old men.”
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