R v Reid
[2022] NZHC 2795
•27 October 2022
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2016-041-586
[2022] NZHC 2795
THE KING v
ALISTER JAMES REID
Hearing: 27 October 2022 Appearances:
I R Murray for Crown C Tennet for Defendant
Sentencing date:
27 October 2022
SENTENCING REMARKS OF McQUEEN J
Introduction
[1] Mr Reid, please stand. You appear for sentence on one charge of sexual violation by unlawful sexual connection. You were first convicted on this charge in 2017, but successfully appealed your conviction and a retrial was ordered.1 At the re- trial earlier this year you were convicted again by a jury in the District Court. Your case has been transferred to the High Court so that the sentence of preventive detention may be considered.2
1 Reid v R [2021] NZCA 221. The Court of Appeal overturned the conviction on the basis that the District Court Judge did not properly direct on the burden of proof and presumption of innocence, as required by R v Wanhalla [2007] 2 NZLR 573 (CA).
2 Sentencing Act 2002, s 90.
R v REID [2022] NZHC 2795 [27 October 2022]
[2] In deciding whether preventive detention is an appropriate sentence, I must first consider what an appropriate fixed term sentence would be for the charge. I must then consider whether this affords sufficient protection. If not, preventive detention will be the outcome.
[3] The circumstances surrounding this sentencing are slightly unusual. You are currently subject to a sentence of preventive detention imposed originally in relation to this charge and one other sexual violation charge.3 You are appealing that conviction and other related convictions, but the conviction currently stands and accordingly both it and the sentence imposed in relation to that charge are relevant background to me sentencing you today.
The offending
[4] The victim of the offending was known to you through his partner at the time, who is the victim of other sexual violation offending by you (for which the appeal is yet to be heard), and who I will refer to as A to protect their privacy. You involved both the victim and A in your drug dealing. The offending occurred in November 2013, following a failed burglary planned by you, that the victim was assisting you with. You became angry. You and the victim returned home, where A was asleep with the children. You both injected yourselves with methamphetamine. Shortly afterwards, you forced the victim onto the bed, held him down and inserted your penis into his anus. The incident was brief and after a short struggle the victim was able to get free. The victim told no one but I accept, as the original sentencing Judge did, that the incident was used by you as a means of power and control, reminding him when necessary of what could happen.4
Victim impact statement
[5] The Court has before it the victim impact statement prepared for the initial sentencing on the charge in 2017. The victim describes being diagnosed with post- traumatic stress disorder following the incident and dealing with a chronic sense of
3 R v Reid [2017] NZHC 2947.
4 At [14].
fear and confusion. He says that your influence in his life caused him to relapse into drug addiction. His relationship with A broke down. There is no doubt that the offending and your involvement in his life has had a devastating and long-lasting negative impact on him. This reminds me of the harm you can do, Mr Reid, and I bear that in mind today.
Finite sentence
[6] I turn to what an appropriate finite sentence on the charge may be. Counsel are agreed that the offending falls with band one of the R v AM guidelines, indicating a starting point of between six and eight years’ imprisonment.5 Counsel also accept that this is an unusual fact situation for which it is difficult to find analogous cases.
[7] Upon reviewing the guidelines, and in reaching a starting point for the offending, I take into account what I consider to be a low degree of premeditation,6 the purpose of the offending (which I accept to be to punish and humiliate the victim), the brevity of the offending and the significant emotional harm caused to the victim as a result of the offending. In light of those factors, I conclude a starting point of seven years’ imprisonment is appropriate.
[8] The Crown seek an uplift of two years’ imprisonment to reflect your criminal history. Your counsel says no uplift is appropriate as there is no specific offending that justifies an uplift and to provide one would amount to double counting. In particular, your counsel says that I should not consider your sexual violation conviction relating to A.
[9] The conviction for sexual violation offending against A relates to an incident that occurred approximately one month after the current charge. Where an offender has been convicted and sentenced for offending committed after the offending that is before the Court, the Court may have regard to this fact as indicative of the earlier
5 R v AM (CA27/09) [2010] NZCA 114, [2010] 1 NZLR 750 at [93]–[97].
6 The Crown refers to an alleged incident earlier on the same evening as the offending, which formed the basis of an attempted sexual violation charge, as evidence of a moderate level of premeditation on Mr Reid’s behalf. However, Mr Reid was acquitted of this charge at trial in 2017. I do not take this into account in my assessment, and base my views on premeditation on the other circumstances surrounding the offending.
offending being not an isolated incident, but rather part of a trend or pattern.7 Given the close proximity in time, I consider this is indicative of a trend in your behaviour and accordingly it would be unrealistic for the Court to ignore this as part of the relevant factual background against which you are being sentenced.
[10] In any case, the offending for which you were also convicted of in 2005 (aggravated robbery and kidnapping) and the 2003–2005 offending against three young persons is demonstrative of your desire to control and dominate others through violence, drug abuse and ultimately the instillation of fear within your victims. I also take into account that following your release from periods of imprisonment you have engaged in significant offending straight away, which is an additional aggravating factor here.
[11]I consider an uplift of one year is appropriate.
[12]No personal mitigating factors have been advanced on your behalf.
[13] Accordingly, the fixed term sentence that would be imposed for the offending, if that is what I do, would be eight years’ imprisonment.
Preventive detention
[14] I now turn to consider preventive detention. You are eligible for preventive detention because you have committed a relevant qualifying offence and were aged over 18 years at the time the offence was committed.
[15] The purpose of preventive detention is to protect the community from individuals who pose a significant and ongoing risk to the safety of its members.8 I must consider whether it is likely that you will commit another qualifying sexual or violent offence if you are released at the expiry of the finite sentence I otherwise would have imposed.9
7 R v Barrett [1999] 1 NZLR 146 (CA) at 150; and R v Stevens CA272/01, 6 December 2001.
8 Sentencing Act, s 87(1).
9 Section 87(2).
[16] The Court is faced with an unusual situation. You were originally sentenced to preventive detention on this charge and the charge of sexual violation against A together, with a minimum period of imprisonment of six years. The sentence and the minimum period of imprisonment were set in relation to both charges, yet I am now to assess the appropriate sentence in relation to only one part of what made up that whole sentence.
[17] New reports have been produced for the current sentencing. I also note that one of the convictions that formed part of the background of the sentencing Judge’s assessment as to the appropriateness of preventive detention has been quashed and awaits retrial. I have taken both matters into account in reaching my assessment of preventive detention.
[18] I agree with the sentencing Judge’s original decision to sentence you to preventive detention on both this charge and the sexual violation against A. I reach this conclusion in light of your longstanding criminal history (and commitment to offend shortly after release from prison), the harm caused to the victims, the low prospects of successful rehabilitative intervention and that I consider you to be at high risk of committing a qualifying offence in the future. I consider preventive detention necessary to manage the risks you pose to society.
[19] However, as your counsel has argued, you are already subject to preventive detention which was originally imposed with this charge in mind. Your counsel argues that this is sufficient to adequately protect the community from any risk you pose. This is not my primary concern. There is no dispute that the Court does have the power to impose a sentence of preventive detention where an offender is already serving
preventive detention.10 I am, however, concerned of the risk of exposing you to a grossly disproportionate sentence.
[20] Such a risk was addressed by a decision of the Court of Appeal.11 Preventive detention had been imposed in this Court over an offender who was already subject to preventive detention in relation to another charge. The sentence was found to be disproportionately severe because the offender had already served a significant mandatory minimum period of imprisonment as a result of the other preventive detention sentence, and so to serve an additional mandatory term of imprisonment as was required under the charge under consideration was excessive.12 A finite sentence of imprisonment was imposed instead.
[21] I am cautious that this same risk of a disproportionately severe sentence arises in your case, albeit arising in different circumstances, given that unlike the offender in that case who faced new charges at a later date, you are now being sentenced for something you have been charged with since your original preventive detention sentence was imposed.13 If preventive detention is imposed, the Court is required to impose a minimum period of five years’ imprisonment.14 The Parole Act 2002 provides that typically, the period spent by an offender in detention prior to their sentence is deemed to be time spent serving the sentence.15 But these same rules regarding pre-sentence detention do not apply where during that period of detention an offender was serving a sentence of imprisonment.16
[22] I understand that at all relevant times, you have been serving a sentence of imprisonment for different charges. I have heard submissions today on this point. The Crown says that I can take the time you have spent in custody since 2013 on the aggravated robbery charge up until your 2017 sentence of imprisonment into account.
10 T(CA43/2013) v R [2013] NZCA 497 at [23], citing R v Howse [1963] NZLR 971 (CA) at 972.
See also R v Gray CRI-2005-025-000507, 6 October 2005.
11 T v R, above n 10.
12 At [31]–[34].13 That offender was sentenced to preventive detention in 2002 with an MPI of 10 years’ imprisonment. He was charged for further offending resulting in the additional sentence of preventive detention imposed in the High Court, in 2012.
14 Sentencing Act, s 89.
15 Parole Act, s 90.
16 Section 91(5).
On the information before me I have concerns that this is not the correct approach and I will err on a rights based approach as a result. It is my interpretation of the legislation that any minimum period of imprisonment that I impose must be served from today. You have already served around five years of the six year minimum period of imprisonment imposed in 2017. The effect of the legislative provisions then, is that you will end up serving a ten-year minimum period of imprisonment for charges on which the Court considered a six year minimum period of imprisonment was initially appropriate.17 In my view, this is a disproportionately severe outcome and would be inappropriate in light of the principles of the Sentencing Act.
Conclusion
[23] As I have said, I consider that given the risks that you pose, preventive detention is the appropriate outcome for you, as the original sentencing judge concluded. However, in the unique circumstances facing the Court today, imposing an additional sentence of preventive detention on the current offending risks creating a disproportionately severe sentence. The parole authorities have the ability to require you to continue serving that sentence until they are satisfied you no longer pose a risk to the community. A second sentence of preventive detention is not required to achieve that result.18
[24] I consider a finite sentence of eight years’ imprisonment is therefore appropriate. I do not consider a minimum period of imprisonment is necessary on top of this finite sentence.
17 I note that s 82 of the Sentencing Act mandates that the Court is not to take pre-sentence detention into account when determining sentence length. For completeness, I do not consider the approach taken circumvents this provision. I am not considering the length of sentence, rather the impact of a minimum period of imprisonment and whether preventive detention is appropriate here. I consider that in the circumstances these inquiries are necessary to avoid the risk of a disproportionately severe sentence and the potential risk in breaching s 9 of the New Zealand Bill of Rights Act 1990.
18 T v R, above n 10, at [34].
Result
[25]Mr Reid, you are sentenced to a finite sentence of eight years’ imprisonment.
[26]Please stand down.
McQueen J
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