R v Muchirahondo
[2025] NZHC 559
•14 March 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-001538
[2025] NZHC 559
THE KING v
JOHN HOPE MUCHIRAHONDO
Hearing: 14 March 2025 Appearances:
C J Boshier and W S Taffs for Crown
A M S Williams, K J Basire, H C Coutts and K N Stitely for Defendant
Judgment:
14 March 2025
SENTENCING REMARKS OF PRESTON J
This judgment was delivered by me on 14 March 2025 at pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date……………
R v MUCHIRAHONDO [2025] NZHC 559 [14 March 2025]
Introduction
[1] John Hope Muchirahondo at the age of 39 you appear for sentence on 17 charges of serious sexual offending committed over 10 years against nine women. The jury delivered their verdicts on 30 September last year, after several days of deliberation in your ten-week trial.
[2] You were convicted of 11 counts of sexual violation by rape1 and six counts of sexual violation by unlawful sexual connection.2 You were also convicted of failing to provide a PIN number to access your cell phone. Police later found graphic images on that phone (and others), which you had recorded, including as trophies, essentially, of some of those sexual assaults.3
[3] You were acquitted of eight further charges of rape or unlawful sexual connection.4 I discharged the jury from giving a verdict on five further charges of sexual violation, including four alleging rape of four other young women, on which the jury were unable to agree.
[4] As you are aware, the Crown seeks a sentence of preventive detention in your case. Your counsel opposes this and he argues, as you have heard, for a finite sentence at a level considerably below that sought by the Crown.
[5] The availability of preventive detention means I approach sentencing today in two stages:
(a)First, I must assess the finite sentence appropriate to reflect your offending in totality, and any corresponding minimum period of imprisonment (MPI) should I sentence you to a finite term.
(b)Then, I will determine whether you should be subject to preventive detention, and if so the term of the MPI under that sentence.
1 Crimes Act 1961, ss 128(1)(a) and 128B; maximum penalty 20 years’ imprisonment.
2 Crimes Act 1961, ss 128(1)(b) and 128B; maximum penalty 20 years’ imprisonment.
3 Search and Surveillance Act 2012, s 178; maximum penalty three months’ imprisonment.
4 One charge was dismissed pursuant to s 147 of the Criminal Procedure Act 2011 during trial; the jury acquitted on seven other charges.
[6] I begin first, by outlining your offending. Although you are familiar with the evidence that the jury heard, sentencing is a public process and it is necessary to do so.
[7]There are nine victims; survivors of your offending.
Ms A
[8] Your earliest offending occurred against the youngest of the complainants, Ms A. She was 15 years old when she met you; you then aged about 25, in 2011.
[9] At that time Ms A was a troubled young adolescent, experiencing difficulties at school and at home. On a day during 2011, Ms A texted you, wanting a lift and interested in alcohol which you could access. You picked her up and drove her to an address, with a sleepout. I infer from your counsel’s submissions, this may have been the single occasion when you took a complainant to your address. Although there is another address where you were living, of your mother’s, in relation to a different complainant.
[10] [Ms A] did not know the address. She had never been there before. On the way you supplied her alcohol as she had wanted and, as she drank it you kept touching her legs—twice she told you “stop it” and pushed you away. She did not want that.
[11] At the address, the two of you went to the sleepout, where there was a single bed. The complainant had never been there before. She was drinking fast, she was drunk when you tried to have sex with her. She was not engaging at all, she did not want sex to happen but you lay on top of her and had sex anyway. Ms A, while she could not recall the exact date of that offending, fixed it to a complaint she made soon afterwards about it, when she was in the care of a mental health adolescent team. The jury rejected your defence that Ms A consented, or at the least you had reasonable grounds to believe she was consenting and that she just gave up—that is consented— to sex before at some point you stopped.
Ms B
[12] You were in an on-off relationship with the next complainant, Ms B. The first time you raped her occurred between 1 January 2013 and 31 December 2014. Ms B was living in Auckland, as you also were at the time. On an occasion just before one of your children was born the two of you had had consensual sex. When you finished Ms B wanted to go to sleep. You wanted to continue. She told you “no”. You rolled her over and while she tried to keep her legs closed, you laughed at her.
[13] The jury did not accept that this was the beginning of what became a pattern in your relationship as you suggested, a sort of play ritual where Ms B played hard to get but ultimately consented to sex. You used your weight to force your body down on hers so she could not keep holding her legs together while your hands were on her wrists. She tried to you push you away, but you had sex with her regardless. The sex caused a tear in her vagina.
[14] A further three charges relating to Ms B occurred over the period of your relationship, which extended some nearly five years or so between 1 January 2013 and 31 December 2018.
[15] During that period, Ms B on multiple occasions, would wake up to you having sex with her. Sometimes she would pretend to stay asleep. Other times the complainant would tell you she did not want sex, communicating this many different ways. She would tell you she had to be at work. She would tell you she was sore, she had to sleep, or she did not want sex at that particular time. Sometimes she cried. But, in her words, it would always end with you getting your way, notwithstanding her lack of consent. Sometimes you told her she was crazy. Sometimes you told her that is just what a girlfriend had to do, when she was with an African man.
[16] Ms B estimated this happened, that is non-consensual sex, at least once a fortnight through your on-off relationship. The jury convicted you on a representative charge, in respect of this offending.
[17] On another occasion during the relationship, Ms B’s genitals were swollen and sore, it hurt her to sit down. You knew that but you laughed, you joked about how that would make sex better for you. You rolled her over and pushed your penis inside her vagina, having sex with her and causing her significant pain.
[18] During 2017 or 2018, at a time when Ms B was feeling particularly mentally vulnerable for reasons that you were privy to, you again raped her. The two of you were in bed, she was not interested in sex, she was facing away from you. You rolled her over towards you. She thought perhaps you were doing so to comfort her. She had made it very plain that all she was interested in were cuddles that night. The complainant did not want sex, there was no foreplay, you just had sex anyway. She said in evidence that eventually she gave in and went along with it. Afterwards, though, she rolled over and swore at you, telling you “you raped me”. Your response was to suggest she was crazy.
Ms C
[19] Your third victim, Ms C, was 18 years old when you raped her, on an occasion between 1 January and 31 December 2014.
[20] Ms C had just turned 18 and had recently shifted to Christchurch from the North Island. She met you at a party in Riccarton. She had already drunk a box of RTD drinks at the party when she agreed to go with you to a bottle shop for what she thought was an alcohol run. But you did not drive her there, instead driving her to your home. She told you she wanted to go back to the party, but eventually agreed to come in and had a drink inside with you. Your brother was at the house. Although you did leave again with her, you only drove a short distance before turning around and taking her back to the house. There, you repeatedly pressed alcohol on her and ignored her requests to return to the party. You pressed drink after drink on her, making excuses and coming on to her. Her phone was flat, she did not have a charger and she repeatedly tried to deflect your sexual advances.
[21] She described how you did not have an aggressive attitude towards her you were just really persistent and really sleazy, she said, and you would not accept it when she told you repeatedly, she did not want to have sex.
[22] At one point, to try to sober up perhaps, she had a shower. You came into the shower uninvited and began to kiss her, still not taking no for an answer. Eventually, you guided her head down and, because she realised you would not take no for an answer, she performed oral sex on you in the shower. The jury was unable to decide on a charge of unlawful sexual connection based on those events.
[23] Afterwards, the two of you went through to the bedroom. You continued groping her, grabbing her and trying to kiss her. She kept telling you she did not want to but you persisted. There, on the bed, she described how you put your fingers inside her vagina, the two of you had sex in various positions and after the sex she performed oral sex on you again. Ms C described how once you started having sex she just submitted; she did not fight it anymore. The jury acquitted you on two associated charges of unlawful sexual connection on the other sexual acts in the bedroom but convicted on the charge of rape.
[24] You did not wear a condom for the sex. The complainant had no clue where she was. The next morning you dropped her home. She said it was like you were on two different pages the two of you; she clearly did not want to be there and you knew that but the following day, after you got what you wanted, you were the nicest person to her.
Ms D
[25] You were also in an on-off relationship with your fourth victim, Ms D, over a number of years.
[26] The two of you first met when Ms D was a student at Canterbury University. Over the years between 2009 and 2019 an intimate relationship continued on and off, although you lived apart throughout. Just as Ms B described in her relationship with you, Ms D spoke about your high sex drive. You would want to have sex several times in the night. You always wanted sex.
[27] Ms D had a son to you in 2013. The offending against her happened on 1 March 2019. At that time, although she accepted she still had feelings for you, Ms D was proud of herself for going some time without having sex with you and she did not
want you in the house that evening, after you dropped your son home to her after a football training.
[28] When you asked to use the toilet though, she let you in and afterwards you sat in the lounge. You had plans to go out for dinner yourself but you asked the complainant what she was offering you. When she told you nothing, you pulled her up from the chair she was on and guided her down the hallway towards the bedroom. She knew what you wanted, she told you I don’t want to have sex with you. She told you I won’t have sex with you, but you laughed and you kept pushing her down the hall.
[29] She did not fight or yell or scream, she felt she had no choice in what was to happen. You had sex with her on the bed. She did not call out because she did not want to frighten your son or upset him, in the room next door. During the sex Ms D had tears in her eyes and you told her “you look sad” but you did not stop, you just moved her to another position and had sex until you ejaculated.
[30] In a participant phone call shortly afterwards, when Ms D spoke to you about that offending, you dismissed her allegations as an issue that did not exist, a story that was “void”. In a subsequent interview, you again dismissed the allegation, you told the police the sex was consensual, just like every day. You said there was no way Ms D would ever say no to sex with you. Anytime, anywhere.
Ms E
[31] The offending against the fifth victim, Ms E occurred overnight on 19 and 20 July 2019. Ms E was 22 years old. You were 34 by this time. You were acquaintances through mutual friends. You were invited by her flatmates to drinks at her flat. At some point during the evening of the party Ms E made her way upstairs. She had been drinking as had most at the party. She was so intoxicated she partly fell up the stairs and she could not get to the bathroom. You came into her bedroom and brought her a bucket to vomit into. She was, I am satisfied, still clothed and lying on the floor in her room at that point. In that position, Ms E recalled passing out.
[32] You went back down to the party and you later sober drove a friend home, before going on to the hospital to visit another party goer who had required medical attention. When you and another of the female flatmates came back to the flat together you went upstairs, to check on Ms E and another intoxicated young woman. You found them both “passed out” in their beds. When you went back downstairs, that flatmate gave you a blanket so you could stay on the couch.
[33] The next thing Ms E remembers after passing out earlier in the evening is waking up in her bed. She was naked and you were having sex with her. She told you to stop and that it hurt, before passing out again. She woke up at another point with your head between her legs performing oral sex on her. She kicked you and told you to stop but you told her “no baby, its OK, just go back to sleep”. You were holding her arms down at that point. You were convicted of rape and sexual violation by unlawful sexual connection for this offending.
[34] Ms E spoke to two of her flatmates the following morning and reported the assault to police the same day. Police assisted Ms E to make a participant phone call with you, which you were unaware was being recorded, much as your earlier call with your partner Ms D. In this call you denied having sex without Ms E’s consent. You told her what had happened. You said you talked to her and asked her and she agreed to you coming into her bed and having sex with her. And when she challenged you that she did not remember she was so drunk she could not stand up and that you realised that because you had brought her the bucket, you denied knowing how drunk she was.
[35] During your defence at trial you produced two clips you had recorded during that offending, unbeknownst to Ms E. Both clips were almost pitch black, only audio recordings in reality. You suggested to Ms E through your counsel she was consenting in what she agreed was audible apparently mutual sexual contact of some kind. I am satisfied the jury rejected your thesis—which was that she was awake and consenting during those events. Rather, Ms E was so intoxicated she thought she was having sex with the man she was seeing at the time who was supposed to have been at the party. Ms E, as she told the jury, said that man’s name at the end of the longer recording.
[36] Police later interviewed you about this incident, on 19 November 2019. You told police that while you were drinking at the party, you did not have too much to drink, you always drink responsibly. You were asked about Ms E’s state of intoxication. You said she was “sensible”, she had only vomited because she had mixed her drinks. You admitted bringing her the bucket, and suggested the two of you were chatting. You said when you returned after dropping your friend and going to the hospital, you had consensual sex with her, three times on your account in different positions and not all at once.
[37] You denied Ms E was in no fit state to consent. You said she was “cool” with it. She was happy to have sex.
Ms F
[38] The offending against the sixth victim, Ms F took place between 1 November 2019 and 23 February 2021. Ms F is one of two complainants who was unaware you had offended against them until recovered photos and videos which you had recorded surreptitiously and retained on your phone.5
[39] Ms F enjoyed your company and she liked spending time with you, the two of you sometimes had consensual sex. Ms F was under mental health care at the time and was prescribed medications with a strong sedative effect. You knew this as she had discussed it with you. After she went to sleep one night having taken her medications you videoed yourself penetrating her vagina with your penis and also with your fingers. You were convicted of a charge of rape and four counts of unlawful sexual connection to reflect the four separate video clips depicting this.
[40] There was a striking difference between the videos of that offending— furtive, gentle and deliberate—and a further video which you produced in cross-examination of Ms F. That video showed the two of you having consensual sex in her fully lit bedroom, although she was very clear she gave no consent to that being recorded, nor had she been told that it had been.
5 Multiple phones: see pre-trial decision.
Ms G
[41] In December 2019, you raped another young woman, Ms G. She was just 18 years old, in her last year at school. She knew you as Jordan. After you first met her on her 18th birthday in town, you and she casually hooked up for sex on occasions.
[42] On this night, Ms G had ended up in Hagley Park in the early hours of the morning and you came and picked her up, taking her back to an address where the two of you had sex consensually, and then both fell asleep. But Ms G woke up later to you rolling her onto her back. You got yourself on top of her and spread her legs apart. She told you “don’t”, she told you “stop”. But you did not stop. She repeatedly told you to stop but you ignored her until she gave up, and you then had sex with her until you ejaculated. The jury heard how the following day, Ms G texted a friend, telling the friend that “… fucken Jordan wouldn’t stop when I asked him to”.
Ms H
[43] The 8th victim, Ms H, was out in town after having dinner with a girlfriend in Christchurch on an evening in January 2020. She met you when your group invited her to your table as she had been about to leave the bar she was at in the early hours the following morning. You seemed friendly; she felt that you shared a common understanding because you both came broadly from a similar part of the world. She went to another bar with you and a friend then back to the friend’s house to carry on socialising. All seemed well at that point. She was there given a drink by your friend, she described having a sip then feeling completely inebriated.
[44] Your friend became angry, and Ms H told you “I need to go home”, you told her “You are too drunk to go home”. She could not recall how she got to your place but recalled the car, and the room itself she went to with you, before her memory ended. She came to, on the end of the bed with her pants down and her legs over your shoulders. You were having sex with her, which was really rough. She felt confused and felt as if she had been drugged, although there was no evidence of this. She blacked in and out of consciousness. When she came to, her clothes were on and you were slapping her on the face telling her she couldn’t sleep there. You then drove her into town, near her hostel where she rushed inside.
[45] At trial, the jury rejected your defence that her memory was so impaired they could not even be sure it was you she met that night, let alone who raped her and that she wrongly identified you as her attacker.
Ms I
[46] The offending against the ninth victim, Ms I, occurred overnight on 25 and 26 January 2020. It seems from texts on her phone you were known to Ms I as Jordan also, and had previously been to her home. At this time Ms I had suffered a head injury and she had just been discharged from a crisis admission to hospital.
[47] Although she has no recollection at all of the acts depicted, police found a video and associated snapchat image on your phone. This showed you digitally penetrating her genitalia while she was asleep or heavily medicated. Although the jury acquitted you on a further charge of rape based on a different video, they plainly rejected your counsel’s submission that she was awake and consented to the unlawful sexual connection depicted in the video and snapchat image.
Failing to provide PIN
[48] In addition to the sexual offending, on 5 March 2021 you were in custody following arrest in the police operation which by now was investigating multiple sexual allegations against you. Police had previously seized under warrant a cell phone, among other items, which belonged to you.
[49] The officer in charge of the case obtained a warrant to search the phone, which was locked. You refused to provide the PIN code to unlock the phone on his request. The jury was satisfied you had no reasonable excuse to do so. Upon that phone, and others, police located a considerable amount of material which you had recorded, including content showing complainants and other, as yet unidentified women, naked or in partial undress apparently asleep, unconscious or otherwise insensible while you performed sexual acts upon them.
Observations
[50] Standing back and having heard the evidence of these women at trial, there are two striking aspects of your offending.
Trajectory
[51] One is the trajectory of your offending. I have set this out in a timeline which will be annexed with my written sentencing remarks. The timeline shows how your offending began with early offending in 2011 against one vulnerable young girl, when you were in your mid-20’s.6
[52] Then, between 2013 and 2018 you offended against two others. One was another very young woman in a one-off situation, in 2014. Against the second, Ms B your sometime intimate partner, you offended repeatedly with an increasing disregard for consent. Then, from 2019 onwards, your offending continued and increased in frequency. During this latter period, police spoke to you on more than one occasion about sexual allegations against you. Yet you committed multiple further rapes and sexual violations of a further six women across these next three years.
Variety of sexual offending
[53]The other striking aspect of your offending is its diversity.
[54] Your sexual assaults took many shapes. Sometimes they came disguised as a fist in a velvet glove. Complainants whose resistance, pleas, repeated indications by words and actions told you they did not consent to sexual activity, words and actions which were simply ignored as you ultimately did what you wanted, sexually.
[55] Whether disguised as overbearing assertions that “this is simply what a woman does for her man” in a relationship, or in context of a one-off situation you engineered to be alone with a young woman, your attitude of entitlement came through loud and clear in the evidence of the complainants. Other times the offending occurred deceitfully, disturbingly, when a woman was at her most vulnerable; asleep, passed
6 Ms A.
out drunk, passed out due to medication, or vulnerable for other reasons you knew about such as her youth, her mental health or other fragility. Other times, you took advantage of her isolation, which you had created.
[56] As I say Mr Muchirahondo, your offending displayed a striking sense of entitlement, and near total disregard for a woman’s right not to consent.
Victim impact statements
[57] The impact of your offending has been profound. Many of the young women have told me of this in thoughtful and powerful statements, including those we heard in Court this morning. Others have asked that their statements not be read aloud, and I respect that.
Ms A
[58] Ms A, who was 15 years old when you raped her, told me of the impacts of your offending in a reflective, articulate and measured statement, which I have read.
Ms B
[59] Ms B described how you denied her the right to her body and to her mind through your on-off relationship over those several years. You destroyed her ability to trust other men and above all, she says, you made her feel she was the problem, not you and your actions.
Ms D
[60] Ms D spoke of the damage your offending caused in your relationship, including the impacts on the son you share. Your offending damaged her self-worth, her body image and her confidence. She felt belittled and controlled by you. You raped her in the setting of that relationship in which she told the Court you took away her voice, her autonomy, and that you weaponised your son by teaching him similarly damaging and derogatory words.
Ms E
[61] Life has not been the same for Ms E since you raped and violated her. She suffers panic attacks and is triggered by the reminders of your assault, in her bed, in her room, in her house where she should have been safe. She too finds it hard to trust men. She has nightmares. Ms E told the Court not only did you take everything from her by your assault, but she felt violated again by having to listen in court to your secret recording of the attack.
Ms F
[62] Ms F is one of the women unaware of your offending against her before police recovered the recordings you made. She told me following your actions she no longer feels safe in her own bed, in her own home. The innocence and trust in people that she took for granted is gone, replaced by a heightened sense of danger. By night she has nightmares but she is also tortured during the day by painful flashbacks. Ms F told the Court as if the rape was not traumatic enough, the recorded images of herself in such a private and vulnerable state are “burnt into her memory forever”, causing her embarrassment and shame.
Ms G
[63] I have read the statement also of Ms G, another of your very young victims at aged 18. Like the other statements the Court has heard it too was articulate, measured and deeply sad to read.
Ms H
[64] Ms H says your offending has brought shame upon the African community. That community, she says, raises strong women. Men respect and protect women. They do not blame them for the way they dress or carry themselves. Ms H told the Court you broke her feeling of safety and trust in people. The sexual violence affected her social life, her mental health and her ability to work to her true capacity. She too suffers panic attacks and describes the feeling of being victim blamed and shamed.
Ms I
[65] Ms I is the second woman who was unaware you had violated her until the recordings were recovered. She was deeply unwell at the time: your offending, she tells me, took away her voice and has caused damage that will never be repaired. The evidence of your actions traumatised her. She is often triggered. She says she will struggle long term with trusting men and grieves for everything she has lost because of your actions.
Comment – Victim impact
[66] As the jury witnessed throughout the trial, these young women showed remarkable courage and dignity in a trial which required them to relive their experiences and the harm it caused. It is important to record there is only one person responsible for this offending, Mr Muchirahondo. The verdicts of the jury, as representatives of the community, give a very clear message: nothing these women did justified your offending. They should carry no blame, no shame in respect of your actions towards them.
Sentencing approach
[67] I turn now to the next stage of sentencing. Given the breadth and duration of your offending, this is informed particularly by the need for denunciation and deterrence. The sentence imposed must hold you accountable for the harm that you have done.
[68] It must also, as your counsel notes, be the least restrictive sentence appropriate in your case, and I must have regard to the need to protect the public. These considerations are uppermost today.
Finite sentence
[69] Before considering whether preventive detention should be imposed to protect the public, I must first fix what I consider to be the appropriate finite sentence. I begin that process by considering the starting point.
Starting point
[70] The guideline judgment for sexual violation offending is the decision of the Court of Appeal in R v AM.7 In that case the Court identified various aggravating factors which indicate the relative culpability of offending of this kind, recognising the wide variety of circumstances in which it can occur. As counsel for both parties today recognise, the Court is not limited in this case to the maximum sentence of 20 years’ imprisonment given the multiple offences.8
[71] The Crown submits a number of these aggravating features of your offending were present to a high degree. Ms Boshier submits a starting point well in excess of the statutory maximum is required, as you have heard.
[72] Counsel also agree that the scale of the offending, its duration and the number of your victims put it in the most serious band of AM, which is called rape Band 4 (and that band has a starting point between 16-20 years imprisonment). I agree with that assessment.
[73] Neither counsel proposed a numeric accounting of cumulative terms for each of the 17 offences of sexual violation, standing alone. I agree any such exercise is of limited utility here. Particularly as there are a number of overlapping features within your offending, but differences also, as you took opportunities which presented themselves to you.
[74] Equally, to select a lead offence among the many is frankly a difficult, and in my view an invidious, exercise given the versatility of the offending. Ms Boshier is on strong ground when she tells me there are few similar cases to yours. For all these reasons the starting point is best fixed by having regard to the culpability factors in the guideline decision, bearing in mind as the Court said in that case that it is the intensity of the factors when they are present which is important, also.
7 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
8 R v Xie (CA397/05), 8 August 2006, [2007] 2 NZLR 240 at [13] – [14].
Aggravating / Culpability factors
[75] I am now going to address the various aggravating factors, features of your offending.
Planning and premeditation
[76] The first is any degree of planning or premeditation. You took steps to get some of your victims alone and gave them alcohol and I am satisfied in those circumstances there was a predatory nature to that offending.
[77] You took 15-year-old Ms A to a strange address, having given her alcohol on the drive there, into a sleepout alone with you. There was limited premeditation, Mr Williams suggests, on your behalf in that activity. But given that you were already touching her in a sexually suggestive way in the car as you gave her the alcohol, I am satisfied that you had in mind exactly what you in fact achieved when you then had sex with her despite her indication in the car that she was not interested in that.
[78] You also took Ms C to your mother’s house, I am satisfied on a pretext, and ignored her repeated requests to go back to the party. She had already drunk a lot of alcohol; but you plied her with more and kept her there, persisting in your sexual intent until she gave in, as she told the jury. It is simply unrealistic to suggest that your behaviour was other than predatory in this way on that occasion and that your offending was unconnected to her state of intoxication which you had helped along the way.
[79] Although you deny you stayed in a relative state of control and sobriety, as the Crown have submitted, compared to those of your victims who were intoxicated, I am satisfied that in respect of those six of the complainants9 who were significantly affected by alcohol or other medication you, by comparison, were in a state of relative sobriety. Indeed, you were frequently, the jury heard, a sober driver, including I infer on the evening of the rape of Ms E, when you left the party and took your friend and
9 Ms A, Ms C, Ms E, Ms F, Ms H and Ms I.
went to the hospital before returning. And by sober driver I am indicating relatively sober driver.
[80] While I do agree with Mr Williams that generally you took advantage of women as you found them and in this sense you offended in an opportunistic manner, as the Court indicated in AM, offenders who show predatory sexual behaviour may be more likely to offend that way, i.e. in an opportunistic manner, which should not in that case be treated as lacking premeditation. On the other hand, I accept as Mr Williams has urged in his written submissions that care must be taken not to double count the aggravating factor of the vulnerability of your victims.
[81] Standing back, I assess there was a predatory element to your offending in that you did frequently target intoxicated women, often very young women, in a predatory manner, across the duration of your offending between 2011 and 2021. I consider in this sense there is premeditation at least to a moderate degree.
Vulnerability of victims
[82] I agree with the Crown: every one of your victims was vulnerable for different reasons; most were particularly vulnerable. Some because they were so young and because of the age disparity between you, some because they were isolated and on your territory, others were highly intoxicated or medicated, some asleep.
[83] Ms A, only 15, drunk and with adolescent mental health challenges which I am satisfied you knew about, at least in part. You were a man in your mid 20’s at the time.
[84] Ms B whose protests you frequently dismissed as crazy and whom you repeatedly raped in her own home, including having sex with her when she was asleep when the offending began.
[85] Ms C, taken to your house in a city where she did not know where she was, another man (your brother) present in the home, without a working cell phone, highly intoxicated and only 18 or 19 years old.
[86] Ms D in her own home and with your young son in the next room, so she could not fight you off or call for help for fear of alarming him.
[87] Ms E, in my view, is a paradigm example: plainly you knew how highly intoxicated she was after bringing her the bucket to vomit in. By the time you returned and assaulted her, she was “passed out” in her own bed where she should have been safe. You were well aware of this: you had checked on her when you returned from the hospital with another woman you were with.
[88] Both Ms F and Ms I, oblivious to your offending before the recordings were discovered, were in my view, highly vulnerable.
[89] Ms F on a raft of medications, some of which to your knowledge she took in the evenings, and which had rapid sedative effect. Ms I who had, again to your knowledge, only hours before been released from hospital.
[90] Ms G, who you had met on her 18th birthday, who was a reserved young person and she was still in her last year of school at that time. There was a significant age disparity between her and you, a man then in your 30’s.
[91] Ms H was highly intoxicated, and instead of you helping her or taking her home as she wanted, you took her to a flat where she did not know where she was.
[92]I acknowledge the comments of this Court in a case called R v Chetty10:
[20] The act of having sex with a woman who is so intoxicated that she is unable consciously to consent to it, is behaviour that needs to be denounced. Women have a right to consume alcohol. They have a right to do so without feeling afraid. They equally have a right to choose to engage in, or to refuse, sexual activity.
…
10 R v Chetty [2016] NZHC 1957.
[93] You repeatedly chose to take advantage of women who were significantly intoxicated or otherwise highly vulnerable, including such that they were incapable of consent or mistaken about who they were with. This aggravating feature of your offending is present to a high degree, I accept, across all your offending.
Harm to the victims
[94] Directly related, and sadly predictable, your offending caused immeasurable harm to your victims. It has had, as you have heard, a ripple effect within their own lives and also no doubt on their families. As a result of your denial of your offending, as is your right, two of your victims were played recordings you had made of them without their knowledge during the trial, which could not but have caused even greater harm to them. I also accept that in respect of at least four of the complainants, the offending involved unprotected sex carrying the risk of infection or pregnancy: as was evident in at least one of the video clips.
[95]There can be no doubt that harm to the victims is present, to a high degree.
Scale of offending
[96] So, too, is the scale of your offending significantly aggravating, for three principal reasons.
[97] First, the sheer number of your victims. Your offending occurred across a 10- year period against nine women and as the Crown identifies that does place you in the upper range of convicted sexual offenders.
[98] In relation to Ms B the offending against her its scale within your relationship over several years is particularly aggravating.
[99] Finally, your proclivity for filming or photographing offending is particularly degrading, aggravating your offending. In addition to the women who learned of the recordings which were played to them during trial, the fourth complainant, Ms D, testified she had not given consent to being filmed or recorded, yet police located photographs on your phone of her naked and asleep. Further aggravating this aspect
is your retention of many of these images and videos on an encrypted application on your phones. You still, to this day, retain access to that application, presently beyond the reach of the digital forensic tools that police have applied.
[100] You disclaim that the videos played to Ms E at trial were stored in that encrypted app, I am told. During the trial a bar owner gave evidence of you boasting of your sexual exploits by showing him material stored in a similar vein on your phone. You suggested this practice was to protect yourself from false allegations of sexual assault. I am satisfied the recordings were made, and retained, for a far more nefarious purpose, on the evidence before me in relation to these complainants.
[101] There were, as you have heard discussed in submissions this morning, additional recordings obtained from your phone showing other, unidentified women. They were admissible at your trial as propensity evidence in support of the trial charges, but I agree with Mr Williams, I should put that evidence to one side in assessing a starting point and I do so.
[102] Nonetheless, the circumstances of your filming the various victims is a distinctive and highly aggravating feature of your offending.
Breach of trust
[103] The sexual assaults did not involve additional violence beyond that inherent in sexual violence.
[104] Again, I must take care not to double count any feature, but it is noteworthy that you returned to where Ms E was asleep in her own bed when you violated her. I accept there is a breach of trust involved in that set of circumstances and it is an additional particularly aggravating feature of the offending against her. On the other hand, other victims with whom you were in longer term or casual relationships were also violated within their own homes, but I accept as Mr Williams’ cautions that aspect should not be overweighted in my assessment. Your counsel also argues it is a bridge too far to infer that Ms I, the complainant who had just been released from hospital, was not even aware that you were in her home when you violated her.
[105] On the facts on this offending, given she was unaware of the offending at all until she was shown the videos you had recorded, I consider that would be an available inference, but I do not place significant additional weight on that factor in the context of the offending against her.
[106] There was, as you accept, a high degree of breach of trust in your offending against Ms B, one of your long-term intermittent partners. You repeatedly ignored or belittled her wishes. You took what you wanted sexually, with no regard for consent. Your counsel accepts this as an obvious breach of trust.
[107] However, Mr Williams suggests I cannot put further weight, as a breach of trust, on the act of you raping Ms F in her own bed while she was heavily medicated as you knew. While I am not necessarily persuaded that that would be wrong, nonetheless I put that to one side as additionally aggravating that offending.
[108] In summary, weighing all those features and against that background the Crown submits that most, if not all, of the rapes you committed, if viewed in isolation would fall within Band 3 of AM (which has a starting range of 12-18 years). Mr Williams contests this, he suggests most of the offending would come within Band 2 (with a range of 7 – 13 years) and he suggests the rape of Ms D may be in Band 1.
[109] I have given this careful consideration and, in the end, as the Court of Appeal made clear in AM, sentencing is an evaluative assessment and much depends on the intensity of the factors which are present. I do consider, in the main, most of your rape offending viewed in isolation falls within Band 3 with the possible exception of the offending against Ms G and Ms D, which was arguably not as highly aggravated as the other offending.
Adjustment for totality
[110] Both counsel agree an appropriate global starting point then is in Band 4. I agree a starting point of 20 years is indicated, at the top of that band. The real issue is whether it is appropriate to uplift that starting point to greater than 20 years to account for the totality of the offending. Here, as you have heard your counsel and the Crown are some distance apart. Ms Boshier argues for a starting point in the vicinity of
26 years’ imprisonment. Mr Williams submits no more than 20 years is warranted overall.
[111] I have been referred by counsel to various decisions. For the Crown these include R v Pillai,11 Wihongi v R12 and R v Jaz.13 I accept, as Ms Boshier submits, none of these cases is on all fours. Mr Williams cited Nixon v R,14 R v Taylor15 (a case where from the Court of Appeal’s observations on appeal it may be inferred that a starting point of just under 23 years would have been unimpeachable to respond to that extended offending) and R v Tiamo.16 Those latter two cases, which concern
11 R v Pillai (HC Auckland, CRI-2006-092-2766, 24 March 2010). By a fine margin, the High Court declined to impose a sentence of preventive detention in respect of 13 convictions for rape, 11 convictions for sexual violation by unlawful connection and other offending including blackmail. Mr Pillai’s offending occurred over a two-year period when he was in his early 20’s. As in this case, Mr Pillai was a first offender and had not been subject to treatment. Priestley J adopted a starting point for the sexual offending of 24 years’ imprisonment.
12 Wihongi v R [2021] NZCA 138. The Court of Appeal upheld a global starting point of 14 years’ imprisonment for sexual offending against five teenage girls comprising one conviction for rape, 10 convictions for sexual conduct with a young person and one conviction for indecent assault.
13 R v Jaz [2023] NZDC 18297. Judge Mabey adopted a final starting point of 18 years’ imprisonment on a totality basis in respect of multiple charges of sexual offending and stupefaction against multiple victims by two brothers over a three and a half year period, including a single rape in each case and three and seven, respectively, convictions for unlawful sexual connection in which the lead offence of rape and associated unlawful sexual connection against one victim was filmed.
14 Nixon v R [2016] NZCA 589. The court upheld a starting point of 20 years imprisonment as high, but not out of range, in respect of 13 charges of sexual offending, including six of rape, committed against six victims, in the context of the South Island outdoor dance party scene with offending against women who were highly intoxicated or asleep when sexual activity began.
15 R v Taylor [2022] NZHC 1471. Mr Taylor was convicted of 18 sexual offences, including eight charges of rape (two being representative charges) against 14 victims committed between 2009 and 2021. Mr Taylor was in a relationship or living together with five of the rape victims; there was an age discrepancy in many of the relationships. Many victims were young persons; the offending included other aggravating features. The other charges related to Mr Taylor’s voyeurism, Mr Taylor instructed one of the rape victims to be sexually involved with a 13 year old boy and repeated sexual offending against children including an eight year old girl. In the High Court Cooke J adopted a starting point of 18 years’ imprisonment on all sexual violation charges, uplifted by two years to take into account the other distinct offending. On appeal, the Court of Appeal held the 14 year end of sentence was generous, and a 16 year end sentence would have been unimpeachable: Taylor v R [2022] NZCA 524.
16 R v Tiamo [2019] NZHC 234, a case involving 95 charges of sexual offending against 17 child/youth victims over a 30 year period, including nine victims of sexual violation. Mr Tiamo deployed significant grooming of victims he accessed by virtue of breaches of positions of trust. The offending typically involved mutual masturbation followed by mutual oral sex. There were several unsuccessful attempts at anal intercourse and two occasions where penetration occurred. Moore J considered the case “truly exceptional” taking into account the number of victims and duration of the abuse. A starting point of 23 years’ imprisonment was adopted. In R v Taimo [2019] NZCA 427, the Court dismissed a Solicitor-General appeal against the refusal to impose preventive detention. Counsel also cited R v Rose [2021] NZHC 2110, in support of the submission the Crown starting point proposed was “out of range”. Muir J in that case adopted starting points of 26 years’ and 17 years’ imprisonment respectively, where Ms Rose and Mr Williams were convicted of 55 and 56 charges over a period five years against seven victims aged from three to 13 years old. The offending including eight charges of rape and 11 charges of
significant offending against multiple younger victims, either within a grooming context or in the setting of intra-familial abuse, I have found to be of more limited assistance. I have found most useful the comparators of Pillai and Nixon, although neither is on all fours. Ultimately, as the cases indicate, what is required is the application of the guideline decision in the circumstances of your case.
[112] Drawing all these matters together, I consider an end sentence of 23 years is justified. This is appropriately nominally marked by a term of 15 years’ imprisonment imposed on each of the 11 rape counts and eight years’ imprisonment on each of the charges of unlawful sexual connection cumulative upon the rapes.
Mitigating factors
[113]There are no mitigating factors of the offending.
Background and personal circumstances
[114] In terms of your personal circumstances, you did not participate in the pre- sentence report process effectively, as is your right. But it leaves me with very little information about your personal circumstances which that process is designed to provide to the Court. As I am shortly going to discuss, you also declined to engage with either the psychiatrist or psychologist who were appointed for the preventive detention enquiry, to assist the Court. Again, this was your right and I note you assert that you could not properly do so given the outstanding charges which remain, where you may be subject to a retrial.
[115] You continue to deny your offending. You have shown no remorse and you maintain that the alleged offences were consensual or at least you had a reasonable belief in consent, save for the rape of Ms H, which you deny on the basis of identification, and a more general reliability challenge to the evidence in support of that conviction.
sexual violation by unlawful sexual connection (Mr Williams) and six charges of rape and nine charges of sexual violation by unlawful sexual connection (Ms Rose).
[116] Mr Williams seeks a 10 per cent reduction in sentence to reflect the impact of your incarceration on two of your children.17 As your current partner has deposed, your two youngest children to her miss their father and they are too young to understand this situation.
[117] It is somewhat notable that the reduction sought is in those terms, given your other children also. I have given this careful thought. While the Court may recognise by way of a reduction of sentence, where appropriate, the impact of [parental] incarceration on an offender’s children, particularly young children, much depends on the overall circumstances of the case and in particular the sentencing purposes which are paramount. Here, given the pre-eminence of denunciation and accountability in today’s sentencing exercise I am not persuaded a reduction is warranted in that respect. That is in part also informed by the reality that when this Court granted you EM bail on your application on strict conditions to reside in the home of your partner, where your two then very young children were present, you subsequently breached the terms of your bail by having access to a cell phone and you attributed the possession of that phone to one of your children, falsely.
[118]In those circumstances I am not persuaded a reduction is here warranted.
Minimum period of imprisonment (MPI)
[119] The next issue I must consider is whether to impose an MPI, as sought by the Crown.
[120] Ms Boshier submits the MPI, as I will refer to it, that is the usual minimum non parole period which is one third of the finite sentence I am presently considering, will not be sufficient to achieve the purposes of accountability, denunciation, deterrence, and protection of the community.18 Mr Williams, as you have heard, does not argue against a minimum term and acknowledges it is a matter for me to determine.
17 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
18 Sentencing Act 2002, s 86(2).
[121] In this case, absent an MPI you would otherwise be eligible for parole at just over the upper end of seven years or so, one third of the finite sentence. I am satisfied an MPI is required for all of the purposes in s 86(2). The need for denunciation and deterrence and accountability is high. And given your steadfast denials in the absence of any remorse for your criminal actions I tend to agree, as Ms Boshier submits, there is currently a bleak outlook for your rehabilitation in relation to the crimes, as you do not believe you have done anything wrong.
[122]In those circumstances, I accept that an MPI of 10 years is appropriate.
Preventive detention
[123] I turn then to consider the question whether to impose a sentence of preventive detention, as the Crown seeks.
[124] As you are aware, that sentence is an indeterminate one that means it is one which may be imposed to protect the community from those who pose a significant and ongoing risk to the safety of its members.19
[125] It is available to me because you have committed a qualifying sexual offence,20 however I may only sentence you to preventive detention if I am satisfied you are likely to commit another qualifying sexual offence, relevantly, at the expiry of a finite sentence.
[126] It is important to recognise that preventive detention is not a sentence of last resort nor a punishment in itself,21 but care and caution should be used in determining whether to exercise the discretion to do so as Mr Williams rightly reminds me.22 And that is because preventive detention is the most restrictive sentence that can be imposed in this situation, having the potential to operate over all of an offender’s life.
[127] I am required to take into account a number of matters when I considered whether to impose such a sentence. They are:
19 Sentencing Act 2002, s 87(1).
20 Section 87(2)(a) and (2)(b).
21 R v Evans [2018] NZHC 69 at [27].
22 R v C [2003] 1 NZLR 30 (CA) at [6].
(a)any pattern of serious offending your history discloses;
(b)the seriousness of harm which was caused by your offending to the community;
(c)any information indicating a tendency for you to commit serious offences in the future;
(d)the absence of, or failure of efforts by you to address the cause or causes of your offending; and
(e)finally the principle that a lengthy determinate sentence, that is a finite sentence is preferable, if this provides adequate protection for society.
[128] To inform the assessment, I have the benefit of two reports which I called for, from consultant forensic psychiatrist Dr Dean and registered clinical psychologist Mr McKendry. The purpose of the reports is to provide an assessment of your risk of future re-offending. I also had the benefit of hearing both experts cross-examined on your behalf and by the Crown.
[129]You did not engage with the report writers, as is your right.
[130] Mr Williams emphasises the reason for your lack of engagement, on legal advice. He submits there was good reason for this, as any interview with the report writers would inevitably involve a discussion about the convictions and those charges on which the jury was unable to reach a verdict. And he reminds me this is of particular concern in relation to one complainant, where you were convicted of one charge, there were acquittals on others, but the jury was unable to agree on a fourth charge related to this the same woman.
[131] On the other hand, Ms Boshier for the Crown submits that your election not to engage is entirely consistent with some of the features of your offending and of your underlying personality traits which suggest the likelihood of your risk diminishing over the years of your sentence is not strong.
Information for health assessors
[132] Both report writers were provided with the notes of evidence from your trial, including the evidence of all 15 original trial complainants, and so as you have heard this means they had regard to the evidence including on charges on which you were acquitted and on those charges where the jury was unable to agree.
[133] I considered that was appropriate. A health assessor is entitled as Ms Boshier submits to review any conduct that is considered relevant to their assessment and the court is entitled to accept the assessment based on that information. As you are aware, that evidence was admissible at trial on a cross-propensity basis.
[134] Although in closing Crown counsel invited the jury not to treat evidence on one charge on that cross-propensity basis (and the jury in fact acquitted you of that charge) the conduct underlying all the allegations remains relevant for this purpose of risk assessment, in my view. I note also Dr Dean and Mr McKendry were advised of the verdicts of the jury on all charges.
[135] Because you did not engage with either of the report writers, both reported findings with considerable caution as a result.
Psychiatric report: Dr Peter Dean
[136] Dr Dean, the forensic psychiatrist noted that he has no information about your mental health but nothing in the information he reviewed suggests any psychiatric condition. As you elected not to participate, he was unable to determine your psycho- sexual history, your current attitudes about your offending or your willingness to participate in treatment to mitigate any future risk.
[137]However, Dr Dean notes that the best predictor of future risk is past behaviour.
[138] In relation to your treatment needs and areas requiring risk mitigation,23 which are plainly of particular interest in my assessment, again your lack of engagement prevented assessment of some factors.
23 Using a structured clinical judgement tool: Sexual Violence Risk-20.
[139] From the limited history that you have, including alcohol convictions for refusing blood on two occasions in your mid 30’s and the context of much of the sexual offending, Dr Dean inferred that your alcohol use contributes to your sexual risk. He notes you show little regard to women and their opinions, including your intimate partners. You have demonstrated some disregard for court ordered conditions. Dr Dean notes your apparent pattern of identifying vulnerable women and engaging in sexual behaviour when they are incapacitated. You are driven by your own desires and sense of entitlement. Some of your behaviour he notes as persistent, threatening, lacking in empathy and psychologically abusive. Consistent with your continued denials, you have minimised responsibility for your offending, and show little regard to the consequences of it on your victims.
[140] Ultimately, Dr Dean concludes that you are likely to be vulnerable to re-offend in the context of socialising with intoxicated women and women with whom you are in a longer-term intimate relationship. As the Crown highlights, this signals the breadth of your risk.
[141] He notes also, that unless your attitudes towards women, your sexual behaviour, and your views on consent shift, you are likely to continue to focus on your own sexual needs and not to respect lack of consent or incapacity to consent, in future.
[142] The psychiatrist also notes that, if you should participate in a programme for sexual offenders in the future during the time you are incarcerated it is uncertain whether you would benefit from this or not.
Mr McKendry’s report
[143]The second report was from Mr McKendry, the psychologist.
[144] As did Dr Dean, Mr McKendry acknowledged the limitations on his report because of your non-engagement.
[145] He notes you were born and raised in Zimbabwe, as was in evidence at trial, that your father had multiple wives and that you are one of 31 siblings. He notes your family’s reported engagement with a Christian church including a traditional and
“hierarchical” way of life. When you were aged only between eight and 10 years, your father passed away. You emigrated to New Zealand shortly after your mother, sometime in 2008. You were a talented football player. You have lived between Christchurch and Auckland.
[146] Mr McKendry used three assessment tools to ascertain your risk and you have heard your counsel challenges the conclusions he drew from those assessments.
[147] In a psychopathy checklist measure you scored high, in the 96th percentile, indicating your tendency towards grandiosity, deceitfulness and limited remorse and empathy. The psychologist noted that people with high scores on psychopathy are likely to have significant responsivity barriers, and that acts to sabotage any reliable change from engagement in treatment.
[148] The assessment tools also indicate that your sexual deviance is a prominent and fundamental feature of functioning and risk profile. This will be an important treatment target. There is also indication from the measures in Mr McKendry’s view, that you may have some difficulty meaningfully engaging in offence focused treatment particularly if you maintain your distorted view of your behaviour as non-offensive.
[149] On a third measure which addresses static risk factors, Mr McKendry initially scored you at above average risk of sexual recidivism. He subsequently amended this score to fall within the average or below average category, having regard to your age at release if you have not been paroled until the end of the lengthy finite term.
[150] Some ability for you to use intimidation and or physical force to achieve your goals was also noted in the report. I accept in this regard as the Crown acknowledges there was no violence of any degree beyond that inherent in the offending itself and I do also accept that while you have been noted at times in custody with an attitude of entitlement within the prison, by and large you have been regarded and recorded as compliant.
[151] Having heard him give evidence I am not persuaded there is any indication of bias on the report writer’s part, as Mr Williams submits. During evidence, Mr McKendry reviewed and corrected the risk assessment where he had used an incorrect age calculation. He also fairly acknowledged that the nature of a further test he used to understand your personality functioning, was a screening test and not for diagnostic purposes.
[152] Mr Williams submits there are further deficiencies in the use of the other tools mainly due, again, to the lack of reliable information Mr McKendry had based on your lifetime functioning. Counsel has also highlighted aspects of the professional guidance for use of those tools, which in his submission suggest that the lack of available information may invalidate those assessments. I note that with the exception of the general criticism of the use of the psychopathy checklist screening tool, the matters Mr Williams raised in his written submissions were not put to Mr McKendry. In those circumstances, I am not prepared to disregard the use of the tools as invalid. As I have noted, Mr McKendry appropriately expressed considerable caution due to the limitations of the information available to him.
[153] Ultimately, there was no evidence called on your behalf in this respect, although sentencing was adjourned from December when it had initially been set down to afford you the opportunity to do so. I am not persuaded it is unsafe to rely on Mr McKendry’s conclusions expressed on a cautious basis. Those were that you have a clearly entrenched pattern of sexually abusive behaviour. This spans some 10 years and nine adult female victims. Over a five and 10-year period following eventual release, Mr McKendry “tentatively” found you to pose a high risk of further sexual offending.
[154] In his view, you appear to possess a particular proclivity and predilection for sexual offending, which is not deterred by your victims’ distress, or possible detection by authorities.
[155] Mr McKendry considers your treatment needs are best addressed in the setting of a special treatment unit (for adult sexual offending) programme. However, as he notes, this requires participants in that treatment to make some acknowledgment of
their sexually offensive conduct and to have adequate motivation for change. It was unclear to Mr McKendry whether or to what degree you meet those criteria.
[156] So, in short, Mr Williams on your behalf says there is simply too much uncertainty with the application of the risk assessment tools to safely rely upon them. He also argues that as the assessors confirmed, the vast number of sexual offenders do not go on to commit further offences. The base rate for all sex offenders of recidivism is 11.9 percent after five years and 18.2 percent after 10 years [post-release].24 I accept that your risk is to be considered in context of that general statistic.
[157] However, weighing all those matters, on the information before me I consider you do present as likely to commit a further sexual offence in the future, and that is the case notwithstanding the adjusted reduction in your risk at sentence expiry date when you will be aged comfortably over 60, particularly if you continue to deny your offending as treatment options will be limited.
Factors for assessment in determining whether to impose preventive detention
[158] I turn then to the first of the factors which I must assess in deciding whether to impose the sentence of preventive detention and that is the enquiry whether your history discloses a pattern of serious offending.
A pattern of serious offending disclosed by your history: s 87(4)(a)
[159]Plainly, based on your convictions, it does.
[160] The pattern of your offending is broadly similar. You identified vulnerabilities in the women you assaulted and exploited those vulnerabilities to achieve your own sexual gratification. You are driven by your own sexual need above the woman’s right, indeed sometimes ability, to consent, which you repeatedly disregarded.
[161]You acted throughout with a striking sense of entitlement.
24 Mr McKendry’s report at [30].
Seriousness of harm caused to the community by the offending: s87(4)(b)
[162] The second issue is my assessment of the seriousness of harm caused to the community by the offending.
[163] Your predatory offending against many young women over a number of years has caused, as I have observed, immeasurable harm. Both to the victims themselves and their families but also to others in the community.
[164] And I note as well as the direct impact on the victims themselves and their families, your offending erodes trust in men, not just in the victims but across the community. This is a further and concerning dimension of this type of offending.
[165] I agree with Ms Boshier you demonstrate a callous lack of regard for your victims and the harm you have caused.
Information indicating a tendency to commit serious offences in future: s87(4)(c)
[166] I turn now to assessment of the information indicating a tendency to commit serious offences in the future and will appreciate this essentially examines similar issues as I have been discussing in the first stage of the assessment.
[167] Particularly given your lack of engagement in the risk assessment, in many ways your case exemplifies, as Dr Dean said, the truism that the best predicter of future risk is past behaviour. For the reasons I have already discussed, I am satisfied the pattern of your offending and, in particular, your underlying sense of entitlement, your disregard for your victims and the attitudes to women evident in your offending, all suggest you have a tendency to commit similar sexual offending in future.
[168] Obviously, Mr Muchirahondo, what will be critical to your continuing risk, will be whether you seek treatment, as will be offered you.
The absence of, or failure of, efforts to address the cause(s) of offending: s 87(4)(d)
[169] In that respect a further indicator of risk is the absence, or failure, of any efforts to address the causes of your offending.
[170] You have not previously been sentenced for sexual offending. For this reason you have not completed any treatment programmes. Undoubtedly this makes this consideration much more difficult to assess. I am given real pause for concern, in particular by the fact that notwithstanding you coming repeatedly to police notice during the period of your offending, including being interviewed on some allegations, yet this did not deter latter offending, as the timeline shows. You have made no effort to address your plainly deviant behaviour and attitudes. You maintain you have done nothing wrong. As the psychologist highlighted, it is this lack of insight into your offending together with your highly distorted appraisal of your own behaviour which poses a real impediment to potential treatment.
[171] I acknowledge as Dr Dean noted, that there are limitations on the ability to predict future risk even if an offender participates in an interview for purposes of s 88. But presently, as both assessors indicate, there is no particular information to suggest the likelihood of you undertaking rehabilitative programmes in prison to address your re-offending risk.
[172] The Crown submits your continued denial gives little confidence that you will avail yourself of any treatment to meaningfully reduce the risk to the community. And in many ways I agree that the PIN charge, your previous convictions for refusing blood and your refusal to engage in the current process and indeed your lack of compliance with EM bail, when granted, are emblematic of a refusal to engage with authority. That does tend, I agree, to give little confidence in whether your entrenched attitudes may change with treatment. However, I cannot disregard entirely your reasons for failing to engage to date with the assessors given Mr Williams’ advice and the outstanding allegations which await retrial. And I do take that into account. In that sense, in my view, your case is distinguishable in this regard from some others where offenders have, like you, refused to participate in the s 88 process.
The principle that a lengthy finite sentence is preferable if this provides adequate protection for society: s87(4)(e)
[173] The final factor that I need to consider in determining whether to exercise the discretion to impose preventive detention is the principle that a lengthy finite sentence is preferable if this provides adequate protection for society.
[174] Again, the dim current prospects of your engagement in treatment are central to this assessment.
[175] The absence of previous rehabilitative interventions is not determinative. In other words, it does not take preventive detention off the table if this has not been previously offered. If there is little confidence in an offender’s likely response to treatment, then an indefinite term may be required to mitigate risk of reoffending and to provide the safety of lifetime recall.25 As you have heard in submissions this morning, one of the factors that can weigh in a finely balanced case is the availability of an Extended Supervision Order (ESO) at the end of a finite sentence and the way in which that mechanism may protect the public in future upon release.
[176] Here the Crown suggests yours is not a finely balanced base and further, the availability of that type of order at the conclusion of your sentence would not be sufficient for public protection. Against this, I tend to agree with Mr Williams, however, that having never previously been offered any rehabilitative opportunity, having never been sentenced to a term of imprisonment, I accept there will be every incentive for you to engage in programmes which will be offered, during the lengthy sentence you are facing. So, while the prospect of your engagement currently is thin, I do consider there likely will be, in future, opportunity to mitigate your risk by active engagement in long term treatment in custody, but that will be up to you Mr Muchirahondo.
[177] Certainly, I am sure it is not lost on you that should you not do so, there is limited likelihood of an early release on parole, although that will be a matter for the Parole Board based on updated risk assessments prepared at that time.
[178] Your deeply ingrained attitudes do give concern. But, after careful consideration, I tend to agree on this aspect, also, with Mr Williams—that both as a result of your age at likely end of sentence and the availability of an ESO, the likelihood is that your risk may be able to be mitigated. I do not ignore that your offending included that occurring within your intimate relationships, on the other hand your current partner disavows any concern in that setting. Certainly, your situational
25 Kumar v R [2015] NZCA 460 at [107] and R v King [2019] NZHC 537 at [81].
risk of offending in other social settings I agree is amenable to conditions of an ESO if imposed. And similarly, as Mr Williams submits, so too there will be ability to impose conditions for example that you disclose any relationship you enter into, if you are ultimately made subject to an ESO. That is a matter entirely for the Chief Executive at the later stage of any sentence of finite term.
[179] The reality is that if you continue to decline to accept responsibility for your offending this will prevent you receiving any effective treatment in prison, and, I suspect, although it is a matter for the Board, would likely ensure that you serve the full term that is imposed and, further, may be subject to an ESO for a period of up to 10 years. In that case, you would be beyond 70 years old by that time. Ageing out of risk can occur, as Dr Dean acknowledged. However, while that is generally the case, it is not necessarily so. Much depends on a person’s personal traits and proclivities. This, too, has given me some pause, given your ingrained personality traits including your lack of empathy.
Conclusion
[180] However, ultimately, for these reasons and weighing these matters and by a fine margin, I have concluded it is not appropriate to impose an indeterminate sentence of preventive detention. I am satisfied that given the lengthy finite term which is to be imposed together with the availability of an ESO if your risk level remains high at the end of your sentence, that combination is preferable and, importantly, will sufficiently protect the public against the risk that you undoubtedly presently pose.
Sentence
[181]Mr Muchirahondo, would you please stand.
[182] On each of the charges of sexual violation by rape you are sentenced to a term of 15 years’ imprisonment; concurrent.
[183] On each of the charges of sexual violation by unlawful sexual connection you are sentenced to a term of eight years’ imprisonment cumulative and concurrent as between themselves.
[184] A concurrent term of one month is imposed on the charge of failing to carry out an obligation in relation to a computer search.
[185]The end sentence, accordingly, is 23 years’ imprisonment.
[186]There is an MPI of 10 years.
[187] Before I ask you to stand down Mr Muchirahondo there are the remaining matters, the charges on which the jury were unable to agree. On those charges I remand you through to a call-over date on 2 May 2025 at 9.15 am for call.
[188]You may stand down.
………………………………………
Preston J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
A M S Williams Barrister, Christchurch
Timeline of Offending
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