R v Nicholls

[2020] NZHC 824

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2019-054-1112

[2020] NZHC 824

THE QUEEN

v

PAUL PAORA KARAKA TEAHO NICHOLLS

Hearing:	28 April 2020 (by VMR)
Counsel:	M G Wilkinson for Crown E C Killeen for Defendant
Sentencing:	28 April 2020

SENTENCING NOTES OF ELLIS J

[1]        Mr Nicholls, I am sure you understand that there are a lot of things I need to say in the course of sentencing you today, so I do apologise; this is going to be quite long. That is partly because the Crown is asking me to sentence you to preventive detention, and that requires me to consider a whole lot of things that I need to talk about. This will not be a sentencing of the kind that you received in 2008 when Judge Roberts dealt with the matter very quickly, so just bear with me. I do hope you will listen to what I say, though.

[2]Mr Nicholls, you appear for sentence in relation to the following charges:

R v NICHOLLS [2020] NZHC 824 [28 April 2020]

(a)two charges of sexual violation by unlawful sexual connection—for which the maximum penalty is 20 years’ imprisonment;1

(b)one charge of indecent assault—for which the maximum penalty is seven years’ imprisonment;2

(c)two charges of burglary—for which the maximum penalty is 10 years’ imprisonment;3 and

(d)two charges of dishonestly using a document—for which the maximum penalty is seven years’ imprisonment.4

[3]       You pleaded guilty to and were convicted of all charges at an early stage and you received a first strike warning in the District Court. But because a sentence of preventive detention was raised as a possibility, your case was referred to this Court for sentencing.

[4]       So the main issue for me to decide today is whether I should sentence you to preventive detention, as the Crown asks me to do. Before I get to that point, though, there are quite a lot of things I need to talk about. I start with the facts of your offending, which you accept.

The offending

[5]       The victim of all your offending on this occasion is an older woman who lives alone. The lock on her front door was broken. During the evening of 13-14 April 2019 you entered her home while she was sleeping. You stole her handbag which contained various items valued at $755.

[6]       Then you went to a nearby service station and made a total of eight transactions using the victim’s bank card. The transactions had a combined value of $279.68.

1      Section 128(1(b) & 128B of the Crimes Act 1961.

2      section 135 of the Crimes Act 1961.

3      Section 231(1)(a) of the Crimes Act 1961.

4      Section 228(1)(b) of the Crimes Act 1961.

Next, you went to a supermarket and made four more transactions with the bank card, totalling $150.93.

[7]       About a week later you returned to the victim’s house, again while she was sleeping. The lock was still broken and you went inside. You took a second handbag which had more personal items and $90 cash inside it. Then you went into the bedroom. The victim awoke to find you on her bed. You put your hand on her face and grasped her wrist. You groped her breast, which is the indecent assault charge. You used your fingers to penetrate both her vagina and then her anus. That is the two sexual violation charges. You then left the house with the handbag.

Victim impact statements

[8]       I have received victim impact statements both from the woman you violated and a member of her family who cared for her immediately after these events. I am not going to go into a lot of detail here—it should not be hard to imagine, though, what harm you caused them. The victim suffered a painful injury to her wrist which needed physiotherapy. The injury made it difficult for her to do even simple everyday tasks such as dressing, driving, cooking and sewing. She also suffered bruising and abrasions to parts of her body and face.

[9]       It is the emotional harm, however, which has had the most significant and long- lasting impact. Unsurprisingly the victim still finds it difficult to sleep at night and struggles with the reminders that come from still living in the house. Even using her coffee loyalty card reminds her of what you did. Her independence and privacy— which she treasured—have all been diminished.

Your personal circumstances

[10]Now, Mr Nicholls, I need to say something about you, personally.

[11]     You are 52 years old. Your iwi is Tainui. You were brought up in a whāngai arrangement and moved around a bit. Your whāngai father was a strict and physical disciplinarian. Your biological parents, as I understand it, both whakapapa to

Tauranganui Marae in Port Waikato. Your whāngai mother said that in the 1970s you were involved in building or restoring another marae in that area—the Ōraeroa Marae.

[12]     You have only very recently disclosed incidents of sexual abuse when you were a child by a relative of your whāngai father. You struggled with literacy and left school early. You moved to Otara and became a Stormtrooper. You have had several long- term relationships, and have a son and daughter, who are now grown. You had not seen them, I do not think, for a long time, although you have seen your son once, recently.

[13]     You have an extensive criminal history spanning some 32 years. You have many dishonesty convictions and a number for family violence. In fact, at the time of your present offending you were subject to release conditions involving electronic monitoring as a result of an order that you not return to the Hamilton area, due to recent convictions for family violence against your former partner.

[14]     The only real break in your offending has been between 2008 and 2016, while you were in prison for offending very similar to the present. It is those two convictions for sexual offending that are the most relevant in terms of what I must think about today.

[15]     I have read the cultural report prepared by Donna Hemi under s 27 of the Sentencing Act. She has said that you seem to be a man who had a fractured childhood and by the time of the present offending had become completely disconnected from your whānau, hapū and iwi. That seems to me to be true. Your children and their children are almost completely absent from your life although you say you have been trying to reconnect. Ms Hemi suggests you have been deprived of any cultural support systems from a young age and meandered into gang life and offending as a young man. Again, I think that is true. As is so often the case, drugs and alcohol have played a large part in your adult life and seem to be directly connected to  your  offending.  Ms Hemi says you have been living completely out of sync with tikanga and a Māori world view. You told her that you are keen to learn more about your iwi and your culture. I will return to that topic later on.

Sentencing

[16]     So, with that I turn to the sentencing process itself. As I said earlier, the Crown asks me to sentence you to preventive detention because of the ongoing risk it says you pose. In order to decide whether that is the right sentence there are a number of things I have to consider. The first of these things is what your sentence would be if I do not sentence you to preventive detention.

Starting point

[17]      The two sexual violation offences are the lead offences for sentencing purposes. Sentencing Judges in cases like this must be guided by what the Court of Appeal has said about the things that make some cases more serious cases than others.5 A number of those things are present in your case.

[18]     The first is how vulnerable the victim of your offending was. She was a 69- year-old woman who lived alone. As the Crown said, she was made more vulnerable by the fact that she was in bed asleep. As the victim herself said “I was asleep and relaxed, then suddenly he was there, my wrists held tightly and his weight on me”. In my view, this factor is present to a high degree.

[19]     Secondly, the fact that you broke into her house at night is something the law regards as particularly serious. It is called a home invasion. An invasion is an attack. You attacked the place where the victim was entitled to feel most safe and the attack has changed that place forever for her. And you had already invaded her home before, just a few days earlier—it is hard not to believe that the victim would not already have been afraid and a little on edge. This factor is also present to a high degree.

[20]     A related question relates to the element of detention and violence. You held the victim’s wrists and put your hands over her face, holding her down. You were much bigger and younger—it did not take much, I suspect, to overpower her. I am sure she was terrified. You made her—albeit briefly—a prisoner in her own home. Then you forced yourself onto and into her.

5      R v AM [2010] 2 NZLR 750.

[21]     That said, however, I accept that the detention was brief and the violence (beyond that inherent in the sexual violation itself) was relatively low level. So this is not a strong aggravating factor.

[22]     The question of pre-meditation and planning is complicated. The data from your electronic monitoring makes it clear that you went to the victim’s address on five occasions before you ever entered the house. As the Crown says, you must have been “scoping out” the property. You said yourself you had seen the victim around—so you knew that she was older and lived alone. And after you broke in the first time, you returned again a week later. But while the burglaries were plainly pre-meditated I am inclined to give you a small benefit of the doubt, in terms of the sexual offending. So I proceed on the basis that you did not go to the house with the intention of sexually violating the victim but did so more on the spur of the moment. As I say, that is a generous interpretation, given that you had done something very similar before. And while it may not have been the subject of any lengthy planning, you accept that what happened from that point on was deliberate on your part. Overall I think pre- meditation is present to a moderate degree.

[23]     Lastly there is the matter of harm to the victim and the degree of violation. I have talked a bit about that already. Although the incident was brief and not as violent as many, physical injuries—one of which was quite long-lasting—were suffered. It seems fair to say that the anal penetration was particularly violating. But overall these factors are at the lower end (relatively speaking) of the scale.

[24]      Taking into account the matters I have just mentioned, in light of the Court of Appeal’s guidance, a starting point of 10 years’ imprisonment on the lead sexual violation charges would be appropriate here.  That starting point would be uplifted by  12 months on account of your two previous convictions for sexual violation and because you were on release conditions at the time. I would also add a further six months on account of the first burglary and related offending. I would not uplift further for the dishonesty offending that occurred on the same occasion as the sexual offending. I do not think any adjustment for totality would be needed.

[25]     So the question is whether that eleven and a half year starting point should then be adjusted downwards for personal factors. Although Ms Hemi’s report sheds important light on how it is you have got to where you are today, it does not, in my view, draw a clear or specific causative link between your cultural background and your present offending. I am unable to give you a discount for that. But what Ms Hemi says will be important, later, when it comes to the choice between preventive detention and a finite sentence.

[26]     It is not in dispute, however, that you are entitled to a full 25 per cent discount for your guilty pleas which—I have no doubt—have spared the victim a considerable amount of further anguish. I would add a small separate discount for remorse, which you have expressed in a letter and also in your request to engage in a restorative justice process—even though that was understandably declined.

[27]     So the end point for any finite sentence would be eight and a half years’ imprisonment. As Ms Killeen responsibly accepted, there would also need to be a minimum period of imprisonment in order to adequately hold you accountable, deter and denounce your offending and to protect the community. As I have said, you were subject to release conditions at the time of the offending and have previous similar convictions. I would impose an MPI of five and a half years.

Preventive detention?

[28]     But now I must consider whether to sentence you to eight and a half years’ imprisonment or to make an order for preventive detention. A sentence of preventive detention is aimed at protecting the community from “those who pose a significant and ongoing risk to the safety of its members”.

[29]     Three conditions need to be met before such a sentence can be imposed. There is no doubt that the first two conditions are met here. You have been convicted of a qualifying sexual offence and you were over the age of 18 at the time.

[30]     The third requirement is that I be satisfied that you are likely to commit another qualifying sexual or violent offence if you are released at the expiry date of the finite sentence that I would otherwise impose. There are five things I must consider when

assessing that risk. I have the reports of the two health assessors—Dr Barry-Walsh, a psychiatrist, and Alison Macfarlane, a registered clinical psychologist—to help me.

A pattern of serious offending?

[31]     The first thing to consider is whether your history shows that the offences for which you are sentenced today form part of a pattern of serious offending. They do.  I have already mentioned the similarities between the present offending and your offending in 2008. I am not going to go into the detail of that earlier offending here other than to say that it, too, involved the sexual violation of an elderly woman in her own home, in the course of a burglary. Ms Macfarlane in her report notes the obvious similarities. Substance and/or alcohol abuse also played a large part in both sets of offending (and your other offending as well).

What is the seriousness of harm to community caused by your offending?

[32]     The second thing I must think about is the seriousness of the harm you have done to the community by your offending. There is no doubt that offending such as this causes not only serious harm to the victims themselves but also to the society in which we all live. Women of any age—but especially older women—should be able to feel safe at night in their own homes. Offending such as yours means that they do not and cannot. That necessarily has a ripple effect for their families and the wider community.

Do you demonstrate a tendency to commit serious offences in the future?

[33]     The third thing I must consider relates to risk. It is here that the two health assessors’ reports come in. As Dr Barry-Walsh makes clear, predicting the likelihood of offending in the future is problematic for all sorts of reasons. But that is what the law requires. There are a number of risk assessment tools that people like Dr Barry- Walsh and Ms Macfarlane use to try and do that.

[34]Ms Macfarlane used five such tools. Her conclusions were:

(a)Based on static risk predictors6 you were assessed as being in the well above average risk category, with a 20.5 per cent probability of sexual reconviction within five years after release. But she said that if you are released after the age of 60, this risk will be reduced to only “above average” risk with an 11 per cent probability of sexual reconviction within five years of release.

(b)Based  on  a  tool  that  uses  both  static  and  dynamic  risk  factors7     Ms Macfarlane found you to be in the high-risk category. The recidivism, or repeat offending, rate for the high-risk group is 37 per cent after five years and 51.1 per cent after 10 years.

(c)If the scores from these first two assessments are combined to enable an adjustment downwards to account for age, the estimated sexual recidivism rate is 35.3 per cent at five years and 47.8 per cent at 10 years.

(d)Another tool, which assesses “General Offending Risk”8 based on static predictors, places you in a category of very high risk of imprisonment within five years of release from prison.

(e)Similarly, the dynamic risk tool known as LS/CMI9 assesses your level of risk as very high. Factors contributing to this risk are identified as including a lack of education and employment, antisocial companions and problems with alcohol and drugs. Other risk factors were found in the areas of family, marital relationships and recreation. Ms Macfarlane noted that intervention and improvement in these dynamic factors would contribute to a lower risk of future offending.10

(f)The Spousal Assault Risk Assessment (SARA) tool screens for risk factors associated with intimate partners and general violence. Ms Macfarlane

6      Using the Static—99R tool.

7      The Violence Risk Scale: Sex Offender version (VRS:SO)

8      Using the RoC*RoI

9      Level of Service, Case Management Inventory

10 Report of Dr MacFarlane, at page 10

placed you in the high range for these. Again, the critical factors were relationship difficulties, substance abuse and your history of violent assaults against partners and of breaching protection orders.

[35]     Dr Barry-Walsh used only one assessment tool—the Risk for Sexual Violence protocol (RSVP). He noted that this tool identifies 22 specific risk factors and that a number were present in your case, including your use of physical coercion and chronicity in sexual violence, a violence supportive attitude, a problem with self- awareness and childhood abuse.11 Dr Barry-Walsh also identified your background and polysubstance abuse as particular risk factors, noting that your sexual offending appears to have been the “product of an impulsive series of actions in the course of committing other crime for which intoxication with alcohol was also a significant dis- inhibitor”.12

Efforts made to address the cause(s) of your offending?

[36]     Next, I need to consider the efforts you have made to address the causes of your offending. You completed the intensive Drug Treatment Programme (DTU) while in prison, in 2013. More significantly, however, you participated in and completed the nine-month Adult Sex Offender Treatment Programme (ASOTP) in 2014/2015, before your release from prison. I am told this is the most intensive treatment programme available for adult sexual offenders in New Zealand. It was thought you had engaged positively in this programme and had started to make observable positive behavioural changes relevant to the chance of your further offending.

[37]     But Ms Macfarlane says you now have only a very superficial recall of the content of the ASOTP. She thinks you have not managed really to take on board much of the content. And Dr Barry-Walsh notes that you say that it took you the whole nine months to “get used to” the programme and that “it didn’t sink through”. He took that to mean that you felt you “did not grasp all of the concepts and would have needed more time to thoroughly learn what was being taught”. You told him that you “wanted

11 Report of Dr Barry-Walsh, at page 6

12 Report of Dr Barry-Walsh, at page 7

help and was willing to accept help” and that you acknowledged that you “needed to engage in a further sexual offender treatment programme”.

[38]     Ms Macfarlane also advises that you were assessed for an Extended Supervision Order prior to your release in 2016 and you engaged well with the interview process. The assessor considered you to be at medium high risk of further sexual offending and high risk of further violent offending. The Department of Corrections chose not to make an application for an Extended Supervision Order on that occasion.

[39]     Upon your release you were referred for further individual treatment but you were not very keen on engaging and were resistant to additional support. Although you were compliant in terms of the sessions you went to, when you failed to attend two sessions the treatment was stopped.13

[40]     Ms Macfarlane says that the apparent failure of previous treatment raises concerns about whether you will benefit from further intensive treatment. She says that the fact that the treatment has not stopped you from reoffending must be taken into account when considering whether future treatment will mitigate risk.

[41]     Dr Barry-Walsh, however, has a slightly different view. First, he says it would be appropriate for you to be assessed again for a further intensive programme and that there remain “a number of areas for potential intervention” for you. He says that “intervention with whanau and within a cultural context given [your] marginalization and isolation may substantially impact on [your] psychological and social functioning and may therefore reduce the risk of further offending”.

[42]     Importantly, this ties in with what Ms Hemi says in her cultural report. She quite rightly identifies a strong need to address your underlying problems with drugs and alcohol, and in that regard I do note the results of your recent drug test, which definitely indicate that you have taken positive steps in that regard. Ms Hemi recommends both a specific tikanga-focused programme which is run by Tainui (your own iwi) and a residential drug and alcohol kaupapa Māori programme which is run

13     Report of Dr Macfarlane, at page 7

in South Auckland and is aimed specifically at prisoners coming out of prison. She also talks about the possibility of support from the marae that you helped build all that time ago. Of course, those measures are only available once you are released.

[43]     Other matters mentioned by Dr Barry-Walsh are your literacy difficulties and your recent disclosure about being the victim of sexual abuse when you were young. As for literacy, he says that “the literature demonstrates, if addressed, reduces a risk of reoffending” and that “whilst in prison it would be valuable for Mr Nicholls to enhance his literacy skills”. Again, I note that is something that you are keen to do, and that is to your credit as well. As for the recent disclosure of abuse, he says that historic abuse may be causal in the other identified areas of psychological adjustment where you have struggled and that these are matters that require further exploration and consideration for intervention.

[44]     And lastly Dr Barry-Walsh points to the fact that you are getting older and already suffer from not insignificant health problems. He says these may diminish the risk of physical and particularly sexual violence while you are in prison and potentially lower that risk at the time of release.

Will a lengthy determinate sentence provide adequate protection for society?

[45]     So now I must consider whether—in light of all these matters—an eight and a half year sentence will provide adequate protection for society or whether preventive detention is necessary. I have to say, Mr Nicholls, that I have not found this an easy question. It is clear that you are presently assessed as posing a high risk upon release. You have had intensive treatment and it has not worked. But there are other things that ultimately tip the balance the other way.

[46]     First, there is the point that you have never been warned bthat preventive detention might be the outcome of further offending by you.

[47]     Secondly, there is the possibility of an Extended Supervision Order on your release. That is a strong protective measure short of a sentence of preventive detention which can be sought by Corrections on your release. The future availability of an ESO often helps tip the balance in favour of a finite sentence in a marginal case.

[48]     Thirdly, there are the likely effects of aging and health. Not all the risk assessment tools are able to take account of these and they do need to be factored in. If you were to serve all of an eight and a half year sentence, you would be around 60 upon your release, or even older at the expiry of an ESO if that is imposed. As noted earlier, your health is not the best.

[49]     And lastly—and despite the apparent failure of the ASOTP course the first time round—there remain further treatment options, as identified by Dr Barry-Walsh and the possibility, in particular, of cultural and tikanga based interventions. I accept the importance of giving you an opportunity to improve your literacy further. But even more important is that you be encouraged and helped to reconnect with your culture and so to begin to build a positive identity and one that you can be proud of. And I think that if you are able to continue with that upon your release then that may well be the pathway to a better life for you.

Conclusion

[50]     On balance, then, and by a narrow margin, I am satisfied that a sentence of eight years six months’ imprisonment, with an MPI of five and a half years (and of course the possibility of an ESO) will be adequate to protect the community from you.

Final sentence

[51]     So, Mr Nicholls, if you could please stand now, your sentence will be as follows:

(a)On the two charges of sexual violation I sentence you to eight and a half years’ imprisonment.

(b)On the charge of indecent assault I sentence you to six months’ imprisonment.

(c)On each of the two burglary charges I sentence you to two years’ imprisonment.

(d)On each of the two charges of dishonestly using a document I sentence you to one year in prison.

(e)All sentences are to be concurrent, which means that your final sentence is one of eight and a half years’ imprisonment.

(f)There will be an MPI of five years and six months.

[52]     Lastly, I want to put on record that you really do owe a big debt of gratitude to Ms Killeen for her very hard work on your behalf.

Rebecca Ellis J

Solicitors:

Crown Solicitor, Palmerston North for Crown