R v Ruddell
[2020] NZHC 3250
•9 December 2020
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2020-088-000679
[2020] NZHC 3250
THE QUEEN v
BRENT JAMES RUDDELL
Hearing: 9 December 2020 Appearances:
B M O’Connor and K Macneil for the Crown D Blaikie for the Defendant
Sentencing:
9 December 2020
SENTENCING NOTES OF WOOLFORD J
Solicitors: Marsden Woods Inskip & Smith (Office of the Crown Solicitor), Whangarei Counsel: D Blaikie, Whangarei
R v RUDDELL [2020] NZHC 3250 [9 December 2020]
[1] Brent James Ruddell, you appear for sentencing having pleaded guilty to 72 charges, mostly related to child sex offending. Those include:
Charge Offence Statutory provision Maximum penalty 1 Exporting prohibited goods Customs and Excise Act 2018, s 288(1)(b)
and (2)(a)
$5,000 fine 2 Possession of objectionable publication with knowledge Films, Videos, and Publications
Classification Act 1993, s 131A(1) and
(2)(a)
10 years’
imprisonment or
$50,000 fine3 Distribution of
objectionable material
Films, Videos, and Publications
Classification Act 1993, s 123(1) and (2)(a)
14 years’
imprisonment
4 Possession of a class C controlled drug Misuse of Drugs Act 1975, s 7(1)(a) and
(2)(b)
Three months’
imprisonment or $500 fine
5 Possession of utensil Misuse of Drugs Act 1975, s 13(1) and (3) 12 months’
imprisonment or $500 fine
6 – 46 Knowingly making an objectionable
publication (x41)
Films, Videos, and Publications
Classification Act 1993, s 124(1)
10 years’
imprisonment
47 – 57 Possession of objectionable
publication with knowledge (x11)
Films, Videos, and Publications
Classification Act 1993, s 131A(1)
10 years’
imprisonment or
$50,000 fine
58, 59 and
62 – 71
Sexual violation by unlawful sexual
connection (x12)
Crimes Act 196, ss 128(1)(b) and 128B 20 years’
imprisonment
60 and 61 Sexual conduct with female under 12 (x2) Crimes Act 1961,
s 132(3)
10 years’
imprisonment
72 Abduction for sex Crimes Act 1961,
s 208
14 years’
imprisonment
Factual background
[2] On 18 July 2019, you uploaded (and thereby exported) child sexual exploitation material (CSEM) via a chat message on an overseas social media platform, namely an instant messenger mobile app from a US-based company. On the same day, you were detected uploading another CSEM via the same chat message from the same account. The social media platform does not store information on servers in New Zealand. Any data transmitted between users must leave and re-enter New Zealand. If a person in New Zealand is knowingly concerned in the upload of
an objectionable publication, that upload amounts to an exportation offence under the Customs and Excise Act 2018 as the file is exported to a point outside New Zealand.
[3] CSEM is the consequence of the real exploitation and/or sexual abuse perpetrated against a child. Any publication that promotes or supports, or tends to promote or support, the exploitation of children or young persons for sexual purposes is deemed to be an objectionable publication as defined by the Films, Videos, and Publications Classification Act 1993. Objectionable publications are also prohibited goods as defined by the Customs and Excise Act 2018.
[4] On 7 November 2019, as part of an operation targeting the sexual exploitation of children and the sharing of materials depicting such exploitation, the New Zealand Customs Service executed a search warrant at your home address. The purpose of the warrant was to seize electronic devices capable of storing data.
[5] At the address, Customs seized a number of electronic devices belonging to you, including an HP laptop. An initial on-site forensic examination of the laptop showed numerous files with names which suggested that they were objectionable. Five of the files were opened and viewed for confirmation. The laptop contained two image files and 76 video files depicting the sexual abuse of children.
[6] Customs also found a Samsung S9 mobile phone belonging to you. A forensic examination of the phone located a total of 279 image files and 10 video files depicting sexual abuse of children. Further located on the phone was a secure app which required a swipe pattern to open and access the files. The secure folder was camouflaged, having the appearance of a Spark app. The secure folder contained 36 individually named folders containing a total of 70 video files and 832 image files depicting the sexual abuse of children. Several of these files showed a tattooed male sexually abusing five identifiable child victims aged between three to six years. The tattoos and clothing belonged to you.
[7] The sexual violation included, among other things, you partially penetrating the victim’s anus with your penis and inserting your penis into the victim’s mouth.
The offending was committed between 2016 and 2019 and occurred within the victims’ own homes or while they were staying at your address.
[8] You had edited some recordings, joining them together to make longer videos or isolating the most gratifying parts of this offending for your own viewing. You had also obtained a large number of other objectionable images and distributed a limited number of images, including on the mobile app Snapchat.
[9] In total, it is said that there were 1,229 child exploitation files consisting of 1,162 image files and 67 video files amounting to two hours and 16 minutes. Of the 1,229 files, 667 depicted child-adult sexual activity, 431 were considered child sexualised posing, 105 child sadistic/bestiality (child extreme), three child self-abuse and 13 child-on-child. There were 35 files that had been categorised as “age difficult”, meaning there is an absence of any detail that would clearly define the subject of the image or video being a child or a person over the age of 18 years.
[10]While executing the search warrant, Customs also found approximately
26.48 grams of cannabis (a class C controlled drug) in a box on top of the kitchen cupboard and drug paraphernalia, namely a used methamphetamine pipe, in a sunglasses case in the bathroom wardrobe. You acknowledged that the cannabis was yours and that you had recently purchased it.
[11] Your counsel notes that although you disputed a number of issues in the Police Summary of Facts (on which this “Factual background” is based), you accept that they were relatively minor compared to the overall picture. And you, not wishing to cause the victims or their families any further distress, instructed counsel that you would plead guilty to all offences and signed instructions that you understood that in doing so you would be sentenced on the basis of the Police Summary of Facts. You then pleaded guilty to 72 charges as I have indicated. As a result, you have received a first strike warning.
Approach to sentencing
[12] The Crown submits that a sentence of preventive detention is available and appropriate under s 87 of the Sentencing Act 2002 — the purpose of which is to protect
the community from those who pose significant and ongoing risk to the safety of its members. However, before turning to the issue of whether preventive detention is appropriate in this case, I must first determine an appropriate finite sentence.
[13] The setting of a finite sentence involves three steps. First, I must set the starting point, taking into account the facts of the offending. Secondly, I must then adjust the starting point up or down, taking into account your personal circumstances. Thirdly, I must consider what discount you should receive for your pleas of guilty.
[14] Throughout this process, I must have regard to the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002. Of particular relevance in this case is the need to hold you accountable for the harm you have done to the victims, to promote in you a sense of responsibility for your actions and acknowledgement of that harm, to denounce your conduct, to deter you and others from committing similar offences, to protect the community and assist in your rehabilitation. I am also required to take into account the gravity of the offending, the need for consistency with comparable sentencing levels and the need to impose the least restrictive sentence that is appropriate in the circumstances.
Starting point
[15] The sexual violation, and related charges (charges 58 to 72), are the most serious charges against you; therefore, I will deal with those charges first. Section 128B(2) of the Crimes Act 1961 provides that a person convicted of sexual violation, whether by rape or unlawful sexual connection, must be sentenced to imprisonment, unless, having regard to the particular circumstances of the offender and the offending, the Court thinks the offender should not be sentenced to imprisonment.
[16] The Court of Appeal in R v AM (CA27/2009) set out a guideline for sentencing for sexual violation offences.1 There, the Court developed two sets of sentencing bands: one where the lead offence is rape, penile penetration of the mouth or anus, or violation involving objects (the “rape band”), and another for cases of sexual violation
1 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
where another form of unlawful sexual connection is the lead offence.2 The “rape band” is applicable in the present case. The bands are as follows:3
(a)Band one: 6–8 years;
(b)Band two: 7–13 years;
(c)Band three: 12–18 years; and
(d)Band four: 16–20 years.
[17] In determining which band the offending falls within, the Court must have regard to a number of culpability assessment factors. The number and seriousness of the factors applicable informs the relevant band for the offending. For present purposes, the Crown and defence counsel agree that the following factors apply:
(a) Planning and premeditation:4 The degree of premeditation reflects criminality. For example, sexual violation of an impulsive nature, although still serious, will generally be less so than that involving grooming a child, taking steps to get a victim alone, giving the victim alcohol or drugs in view of offending, and other predatory behaviour.
Presently, in each case, you befriended the mother of the victim. For victim 1, you befriended the mother at your place of work and stayed at her family home while your wife at the time moved to Northland to prepare for your family to move. The victim’s mother would leave the victim in your care when she went to buy groceries. Similarly, you befriended the mothers of victims 2, 3, 4 and 5 (victims 4 and 5 being sisters). You offended against victim 2 while her mother was working. You offended against victim 3 after you offered to take care of her on the pretence that she was going to have a playdate with your young child. You offended against victims 4 and 5 when they and their mother
2 At [65].
3 At [90].
4 At [37]. Sentencing Act 2002, s 9(1)(i).
visited you at your home in Kerikeri. The Crown says you staged the victims in some of the offending and recorded your offending, demonstrating clear planning.
(b) Detention:5 An offender may abduct or detain the victim to facilitate the offending conduct. A level of detention is inherent in sexual offending of this nature because the victim is not free to leave. But where the sexual violation involves detention or abduction beyond that, it increases the seriousness of the offending.
In the present case, the second instance of offending against victim 2 occurred when she was blindfolded with her hands behind her back. You penetrated her mouth with your penis whilst she was restrained in this way. Furthermore, victim 3 was tied facedown to a breakfast bar stool-type chair while you rubbed your penis up and down between her buttocks and pushed your penis against her anus.
(c) Vulnerability of the victims:6 The younger the victim and the greater the age gap between the victim and offender, the greater the seriousness of the offending. The five victims in this case were between three and six years of age. You were at the time of the offending between 30 and 33 years of age. The victims were very vulnerable due to their age.
(d) Harm to the victims:7 Harm is inherent in the offending. The more harmful the offending, the more serious it is. This includes both physical and non-physical or psychological harm. Furthermore, the impact on others, such as children, other family members or those providing care and support to the victim is also relevant.
I have five Victim Impact Statements from four mothers and a grandmother. They make absolutely devastating reading. You heard them read out. Lives have been shattered. The mothers blame
5 At [38]–[41].
6 At [42]–[43]. Sentencing Act 2002, s 9(1)(g).
7 At [44]. Sentencing Act 2002, s 9(1)(d).
themselves for allowing you into their lives. Their daughters have been hugely affected. One mother described her daughter as a broken little girl, fearful, cautious, clingy, withdrawn. Mothers are depressed and angry. It will take many years before the victims and their families can start to recover from your shocking predatory behaviour.
(e) Scale of the offending:8 More than one incident or extended abuse over a prolonged period of time, degradation or indignities such as videotaping or photographing the offending, and offending against multiple victims all increase the culpability of the offender. Presently, there are five victims, multiple instances of offending occurring over three years and associated degradation by recording of the offending.
(f) Breach of trust:9 In each instance of offending, you had won the trust of the victim’s mother so as to either stay with the family or be left in charge of the victim. Whilst this is not a familial or parental context, the Crown says the factor is nevertheless present to a moderate degree.
The Crown says that the degree of violation10 is also relevant to a moderate degree.
[18] Further, the Crown submits that the aggravating factors listed in s 132A(2) of the Films, Videos, and Publications Classification Act 1993 are also relevant; defence counsel accepts that your act of video recording the offending is an aggravating factor that stands alongside the culpability assessment factors in R v AM. Section 132A(2) provides that the Court must take into account the extent to which any publication that was the subject of the offence is objectionable because it:
(a)promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both, for sexual purposes:
(b)describes, depicts, or otherwise deals with sexual conduct with or by children, or young persons, or both:
(c)exploits the nudity of children, or young persons, or both.
8 At [47]–[49].
9 At [50]. Sentencing Act 2002, s 9(1)(f).
10 At [52].
[19] Offending which involves two or more of the factors to a high degree, or three or more factors to a moderate degree, and which occurs multiple times over considerable periods of time falls within rape band four. Presently, the Crown and defence counsel agree that your offending falls within rape band four, the starting point range of which is 16 to 20 years’ imprisonment. The Crown submits that a starting point of 17 to 19 years is appropriate; defence counsel submits that while this is a very serious offending, it is not the most serious case of sexual violation imaginable, and therefore warrants a starting point in the “middle of the lower end of the band”, which I take to mean around 17 years’ imprisonment.
[20] In my view, a starting point of 18 years’ imprisonment is appropriate for the sexual violation charges. The R v AM factors and s 132A(2) of the Films, Videos, and Publications Classification Act 1993 are applicable.
[21] Next, there are the 41 charges of knowingly making objectionable publications (charges 6 to 46). Of those charges, 34 are recordings taken by you of your own acts of sexual violation. The Crown accepts that those recordings are already accounted for in the sexual violation charges. The remaining seven charges for knowingly making objectionable publications relate to you editing the recordings either to have the moment of ejaculation or sexual act running in a loop or to create a longer video of sexual acts by joining together shorter videos. The Crown says that the sole purpose of this was your own gratification, and these acts further victimise the victim. Therefore, the Crown says, an unspecified uplift may be appropriate. I agree and uplift the 18 year starting point by one year to reach 19 years’ imprisonment.
[22] Then, there are the further charges for possession of objectionable publications (charges 3, 47 to 57). The Crown and defence counsel agree that these images were mainly category A publications (depicting penetrative sexual activities) as set out in the UK Sentencing Council’s New Sexual Offences Definitive Guidelines 2014.11 One was an image of a male toddler with an adult’s penis in his mouth; the other was a female toddler with an adult male pulling her buttocks apart to expose her anus.
11 See Jolly v Police [2018] NZHC 1343 at [13]–[14].
Notably, these were images downloaded from the internet, and not of your own making.
[23] The Crown submits that, on a standalone basis, and by reference to analogous cases, a starting point of 6.5 to seven years would be justified for the distribution and possession of objectionable publication charges.12 Defence counsel accepts that such a starting point may be justified; however, considering the totality principle, he submits that an uplift of three years is appropriate. Defence counsel therefore reaches an end starting point of 20 years’ imprisonment (being 17 years for sexual violation and three years for the distribution and possession of objectionable publications).
[24] The Crown, on the other hand, makes its totality adjustment at the end, after adding up the various starting points. It reaches a starting point of 23.5 to 26 years (being 17 to 19 years for sexual violation and 6.5 to seven years for distribution and possession), then it makes a totality adjustment to reach an end starting point of 20 to 22 years’ imprisonment for all offending. I will adopt the approach taken by the defence and build the totality principle into a further uplift. I therefore uplift the starting point by a further three years’ imprisonment to reach an end starting point of 22 years’ imprisonment.
[25] No further uplifts are necessary. All other charges can be dealt with by way of concurrent sentences. I therefore adopt a starting point of 18 years’ imprisonment for the sexual violation charges, uplifted by a year to 19 and then on the totality principle, I reach an end starting point of 22 years’ imprisonment for all the offending.
Personal circumstances and guilty pleas
[26] The Crown submits that there are no aggravating or mitigating factors personal to you. As for your guilty pleas, the Crown submits only a 20 per cent discount is justified.
[27] Defence counsel, on the other hand, submits that there are no aggravating factors personal to you, but there are some mitigating factors. First, defence counsel
12 See Pattison v Police [2018] NZHC 2163; and Robinson v Police [2017] NZHC 2655.
says, you have no previous convictions and are therefore entitled to a discrete discount of five per cent for your previous good character. However, previous good character is always a difficult concept in cases where there is prolonged offending over more than two years.13 In the present case, the offending occurred over a three-year period. Given the prolonged and serious nature of the offending, with the sexual violation charges falling within rape band four, you are not, in my view, entitled to any discount for your previous good character.
[28] Secondly, defence counsel submits that a further discount is available for your “considerable remorse”. For a discrete discount, you must show that your remorse is genuine and goes beyond mere acceptance of responsibility inherent in a guilty plea. Presently, in my view, there is no tangible evidence, beyond your guilty pleas, which indicate remorse. Indeed, you initially minimised the seriousness of your own offending in your own mind. You appear to have taken the view that your possession of objectionable material, which you substantially kept to yourself, and the fact that you had not physically harmed any of the victims of the contact offending, minimised the seriousness of the offending. I acknowledge defence counsel’s submission that you subsequently began to realise the harm caused and quickly came to a decision that you would plead guilty and not put the victims through any disputed process. However, you have not demonstrated such remorse, beyond that inherent in a guilty plea, to warrant a discrete discount.
[29] Thirdly, as to the guilty pleas, defence counsel submits that you are entitled to the full 25 per cent discount, which is available in terms of R v Hessell.14 Counsel submits you pleaded guilty at the first available opportunity, even before the final summary of facts had been prepared. He says he was in contact with the officer in charge of the case on numerous occasions to try to finalise the charge list and summary of facts. You entered pleas of guilty at the case review hearing.
[30] Fourthly, defence counsel submits that a further discount of around 10 to 15 per cent is justified when having regard to the s 27 cultural report prepared by Shelley Turner, Director of Specialist Reports Ltd. There are also two specialist reports by
13 Tonga v R [2011] NZCA 257 at [24].
14 R v Hessell [2010] NZSC 135, [2011] NZLR 607 at [75].
Dr Jacques, Consultant Forensic Psychologist, and Dr Sharma, Senior Clinical Psychologist, pursuant to s 88 of the Sentencing Act in relation to preventive detention (which I will address later). Counsel submits that your upbringing and life have been subject to considerable disadvantage, having been the victim of sexual, physical and psychological abuse, and that there is a nexus between this disadvantage and the present offending so as to warrant a discrete discount.
[31]The cultural report provides some insight into your background. It says:
3.1The report provides an overview of Brent’s personal, family, whanau, community and cultural background as it has been narrated by him. Learning more about Brent’s life provides context around his offending. The qualitative data was also enriched by further information given by his mother, Marie Massey.
3.2Brent comes from a background of family dysfunction and mental ill- health. His childhood was blighted with domestic violence, suicide attempts, drug and alcohol exposure, and sexual abuse. Understanding Brent’s lived experiences has exposed ample childhood trauma. Brent was a child that was lonely, displaced, scared and bullied. He suffered early mental health unwellness and was displaced from family straight afterwards. He used drugs and alcohol as the framework for his coping mechanisms.
3.3While the purpose of this report is not to defend Brent’s crimes, it needs be said that there is plentiful evidence that points to those who are sexually abused having an increased likelihood of becoming sexual abusers themselves. A review that gauged the results of 18 studies reported that between 23–33 per cent of adult sex offenders had sexual abuse in their own history (the figures were different dependent upon the breadth of the definition of ‘abuse’ used).
3.4Furthermore, there is a common assumption that sexual compulsivity has a positive correlation with the exposure to sexual material or sexual abuse as a child. Sexual impulsivity is defined as “… a clinical phenomenon characterised by sexual urges, fantasies, and behaviours that are sufficiently recurrent and intense to interfere with daily functioning”. Were the behaviours assessed as ‘sexual compulsivity’, this could be perhaps considered as a causal pathway of nexus to the offending.
3.5Brent somewhat accepts responsibility for his offending and is remorseful. There appears some denial, whether that be due to the horrific nature of the offending, or just shame is unclear. But what is clear is that he appears deeply ashamed for what he is owning. Brent is willing to undertake rehabilitation, in any form deemed appropriate, to achieve wellness.
3.6This report endeavours to present Brent’s background for the benefit of the Court, without condoning his offending. The extent to which his background mitigates his culpability is a matter for the Court …
[32] I am, however, of the view that the report can only have a modest effect on sentencing as the offending does involve serious sexual offending. In all the circumstances, and in light of the described nexus between your background of disadvantage and the present offending, I am of the view that you are entitled to an overall discount of 30 per cent, which includes a substantial credit for your pleas of guilty and a lesser credit for the personal factors disclosed in the s 27 report, which give some explanation for where you are today and which indicate some real prospect of rehabilitation. That means an end sentence of 15 years and five months’ imprisonment if I was to sentence you to a finite term of imprisonment.
Minimum period of imprisonment (MPI)
[33] The Crown submits that, in the event a finite sentence is imposed, an MPI pursuant to s 86 of the Sentencing Act 2002 is appropriate. That section provides that the Court may impose an MPI no longer than either two-thirds of the full term of the sentence or 10 years if it is satisfied the ordinary one-third period is insufficient for:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
[34] The Crown submits that you have not only obtained child abuse images, you have also created them. In doing so, you have sexually violated five girls aged between three and six years over a three-year period. You have never received treatment, and the report obtained pursuant to s 88 of the Sentencing Act identifies you as being at a medium to high risk of re-offending without treatment. Defence counsel accepts that this is an appropriate case to impose an MPI. I too agree that an MPI is necessary to protect the community. Accordingly, I would impose an MPI of just over 50 per cent or eight years’ imprisonment if I was to impose a finite sentence.
Preventive detention
[35] Having set what I regard as the appropriate finite sentence, I now turn to the issue of preventive detention. Preventive detention is a sentence of imprisonment for an indefinite period. If imposed, you will be released from custody only when the Parole Board is satisfied that you no longer pose a risk to the community. The purpose of preventive detention is to protect the community from offenders who pose a significant and on-going risk to the safety of the public.
[36] An offender is eligible to be considered for preventive detention if three pre- requisites are met. They are set out in s 87(2) of the Sentencing Act:
(a)a person is convicted of a qualifying sexual or violent offence (as that term is defined in subsection (5)); and
(b)the person was 18 years of age or over at the time of committing the offence; and
(c)the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date … of any sentence, other than a sentence under this section, that the court is able to impose.
[37] Furthermore, when considering whether to impose a sentence of preventive detention, s 87(4) provides that the Court must take into account:
(a)any pattern of serious offending disclosed by the offender’s history; and
(b)the seriousness of the harm to the community caused by the offending; and
(c)information indicating a tendency to commit serious offence in future; and
(d)the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[38] Returning to the three pre-requisites in s 87(2), it is not disputed that the first two requirements are satisfied. The issue is the third requirement, that is, whether the Court is satisfied that you are likely to commit another qualifying sexual offence if
you are released at the sentence expiry date. The word “satisfied” is to be given its ordinary meaning; in other words, proof beyond reasonable doubt is not required.15
[39] The third requirement can essentially be reduced to two questions: first, what is the risk of re-offending; and secondly, could treatment reduce that risk to an acceptable level?16 To assist in this assessment, the Court has before it two specialist reports by Dr Jacques and Dr Sharma, pursuant to s 88 of the Sentencing Act.
[40] I turn first to your risk of re-offending. Dr Sharma reports that you are considered to be at medium-high risk of sexually re-offending in a similar manner, and without appropriate and intense treatment, you would be at high risk of re-offending against young girls you know through social connections. Dr Jacques similarly observes that you are at moderate to high risk of reoffending. He believes the likelihood of you committing a future qualifying sexual offence is high without treatment or supervision. Dr Sharma summarises:
64. In Mr Ruddell’s case his pattern of sexual offences over the last few years show a rapid escalation from online offending to contact offences. His offences are characterised by planning, opportunism and his abuse of power and control. He has sexually deviant traits, which indicates a high risk of re-offending. …
[41] Next, I turn to whether treatment could reduce, to an acceptable level, the risk of you re-offending once released. Both Dr Sharma and Dr Jacques note that you have not previously received treatment. They also record that you have demonstrated a willingness to engage in treatment. Dr Sharma referred to you as showing a high level of motivation to understand your sexual offences and to seek treatment. He states that your willingness to engage in treatment to address your underlying difficulties sheds positive light on your long-term prognosis.
[42] On that basis, both specialist report writers commissioned to give reports by this Court conclude that a lengthy finite sentence would be sufficient to protect the community and is to be preferred. Dr Sharma says:
69.Without making meaningful gains from treatment, Mr Ruddell is at moderate to high risk of coercing and sexually offending against pre-
15 R v Dittmer [2003] 1 NZLR 41 (CA) at [30].
16 J v R [2019] NZCA 581 at [58].
pubescent girls whom he has access to through social ties. Given his willingness to undertake treatment, a custodial sentence of a sufficient term to allow him to undertake intensive rehabilitative treatment designed to address his offending behaviour is recommended.
70.Although the length and type of sentence is the court’s decision it would appear that the community would be sufficiently protected by a lengthy prison sentence, which would also allow him to undertake intensive treatment. If necessary an Extended Supervision Order could be imposed on him upon release.
Dr Jacques similarly concludes that:
125. A lengthy determinant sentence with [an] extended supervision order may be preferable over Preventive Detention. This would allow the defendant to engage with specialist child sex offender treatment, for example, the Te Piriti programme. This is an intensive and holistic psychological programme run by Corrections for child sex offenders. I believe based on his presentation during the interviews and his engagement with therapy, he is likely to respond and make use of this intervention.
[43] Taking those specialist recommendations into account, I am not satisfied that you are so likely to commit another qualifying sexual offence when you are released at the sentence expiry date that I should sentence you to preventive detention. While you are assessed as posing a medium to high risk of re-offending, those opinions are on the basis that you do not receive treatment, or that treatment is unsuccessful. I note that you have demonstrated a willingness to engage in treatment and the specialists are of the opinion that you are likely to respond positively to treatment. Further, in the event the treatment is ultimately unsuccessful, extended supervision orders may be made to adequately protect the community from any risk of re-offending.
Result
[44] I therefore intend to impose finite sentences of imprisonment. Please stand Mr Ruddell.
(a)On the 12 charges of sexual violation by unlawful sexual connection (Charges 58, 59 and 62 – 71), you are sentenced to imprisonment for 15 years and five months.
(b)On the one charge of abduction for sex (Charge 72), you are sentenced to imprisonment for seven years.
(c)On the two charges of sexual conduct with a female under 12 (Charges 60 and 61), you are sentenced to imprisonment for five years.
(d)On the 41 charges of knowingly making an objectionable publication (Charges 6 – 46), you are sentenced to six years’ imprisonment.
(e)On the 12 charges of unlawful possession of objectionable publication or possession of objectionable publication with knowledge (Charges 2, and 47 – 57), you are sentenced to four years’ imprisonment.
(f)On the one charge of distribution of objectionable material (Charge 3), you are sentenced to two years’ imprisonment.
(g)On the one charge of exporting prohibited goods (Charge 1), which is fineable only, you are convicted and discharged.
(h)On the one charge of possession of class C controlled drug (Charge 4), you are convicted and sentenced to one month’s imprisonment.
(i)On the one charge of possession of drug utensils (Charge 5), you are convicted and discharged.
[45] All sentences are concurrent. That means a total sentence of 15 years and five months’ imprisonment. In addition, I impose a minimum period of imprisonment of eight years.
[46] Finally, I make an order for destruction of the objectionable publications and the items on which the publications are stored pursuant to s 136(1) of the Films, Videos, and Publications Classification Act 1993.
Woolford J
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