R v Shepherd
[2018] NZHC 389
•6 March 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-005531
[2018] NZHC 389
THE QUEEN v
DENNIS PATRICK POHARAMA SHEPHERD
Hearing: 6 March 2018 Appearances:
T McGuigan for the Crown
K A N Trotter for the Defendant
Sentence:
6 March 2018
SENTENCING NOTES OF HINTON J
Counsel/Solicitors:
Meredith Connell, Auckland Karl Trotter, Barrister, Auckland
R v DENNIS PATRICK POHARAMA SHEPHERD [2018] NZHC 389 [6 March 2018]
Offences
[1] Following a guilty plea on 21 November 2017, the District Court declined jurisdiction to sentence you, Mr Shepherd. Moore J, in a minute of 29 November 2017, entered convictions against you and remanded you in custody for sentencing on two charges of indecent assault under s 135 of the Crimes Act 1961 and one charge of male assaults female under s 194(b) of the Crimes Act 1961.
[2]The Crown seeks preventive detention.
Facts
[3] On 13 May 2017, the victim and her partner were celebrating a friend’s birthday by drinking alcohol outside the Auckland City Mission. The victim was intoxicated.
[4] You suggested to the victim and her partner that they accompany you back to your flat to continue drinking. They accepted your offer.
[5] When the three of you arrived at the flat, you all continued to consume alcohol. The victim’s partner departed shortly afterwards, leaving the two of you alone.
[6] The victim and you began to dance, during which you attempted to touch her breasts. She pushed away your hand, moved away and sat down on the couch.
[7] You followed the victim to the couch. You grabbed her around the waist and pulled her towards you. You then grabbed at her singlet and her bra, pulling them down to expose her chest, at which point you sucked on her left breast.
[8] In an attempt to get away from you, the victim stood up, but by this point you had locked your legs around her, immobilising her. You then proceeded to pull your shorts down below your waist.
[9] You grabbed the victim’s hand and placed it on your penis. You moved her hand up and down on your penis. She managed to pull her hand away.
[10] You then forcefully removed the victim’s pants and underwear, pulling them down around her knees.
[11] She attempted to fight you off, but you are considerably larger than her. You forced her onto her back on the floor and sat on top of her. Once again, you placed her hand on your penis and moved it up and down.
[12] The victim continued to attempt to fight you off. She yelled at you, telling you to stop. You then punched her in the side of the face with a closed fist. As a result of this assault, the victim received bruising to the right side of her face and lip, and a small cut to her lip.
[13]The victim managed to get out from underneath you and she left the apartment.
Victim Impact Statement
[14] The victim impact statement indicates that the victim felt disgusting and dirty following the offending. Since the offending, she has felt nervous and on edge when she is out on the street and no longer goes out as much as she used to. Though the victim impact statement is brief and short on detail, it can be difficult for victims of sexual violence to relate their feelings and experiences to anyone, let alone the Police or prosecution.
Personal circumstances
Prior Convictions
[15] Mr Shepherd, your criminal history discloses a pattern of serious sexual offending and violence towards women.
[16] On 3 April 1985, you were convicted of rape and sentenced to three years’ imprisonment. You were only 17 years old at the time. You and the victim were alone together in the bush consuming alcohol. You expected her to have sex with you. When she declined, you grew angry, you raped her, and threatened to kill her.
[17] On 8 April 1992, you were convicted of indecent assault and attempted sexual violation, and sentenced to three-and-a-half years’ imprisonment. A middle-aged woman awoke in her own bed, in her own home, to find you lying on top of her and kissing her. You had exposed her breast and bit it. You touched her genitalia and exposed your penis.
[18] On 25 July 2006, you were convicted of abduction for the purposes of sexual connection, sexual violation by rape, two charges of unlawful sexual connection, threatening to cause grievous bodily harm, and two charges of male assaults female. You were sentenced to 12 years’ imprisonment, with a minimum period of imprisonment of seven years. You and the victim had been drinking heavily. You left together and she followed you back to an unused grandstand where you were living, to continue drinking. She was younger than you and an alcoholic. You confronted her with a hockey stick and demanded that she undress or you would mess up her face. You forced her to perform oral sex on you. You forced your penis slightly into her. You bit her neck and leg, and forced your fingers into her genitalia.
Pre-Sentence Report
[19] The pre-sentence report provided by the Department of Corrections notes that your offending-related factors are problematic alcohol use, a propensity towards violence, and offender-related sexual arousal. Alcohol use has been identified as a factor in your previous offending and you have admitted as much in relation to your previous sexual offending.
[20] Your account of the offending to Corrections indicated you grew frustrated when the victim rejected your sexual advances. You indicated that you could not “read her” and could not appreciate what you were doing was wrong. Due to this frustration, you assaulted her, physically and sexually.
[21] You described your upbringing to Corrections as troubled. You said that you lived in a boy’s home for long periods of time and were subjected to physical and sexual abuse from staff. You declined to elaborate further to Corrections about your upbringing because of the bad memories. Unfortunately, like so many other offenders
who appear in front of this Court for sentencing, you recount a personal history of neglect, physical and sexual abuse.
Submissions
Crown Submission
[22] The Crown submission adopts the charges of indecent assault as the lead offences, to which the charge of male assaults female operates as an aggravating factor.
[23] The Crown submits that an appropriate starting point for your offending overall is in the vicinity of three years’ imprisonment.
[24] To this they suggest an uplift of at least three months is appropriate to reflect your previous convictions and the need to specifically deter you from further offending.
[25]They accept that a full guilty plea discount of 25 per cent is appropriate.
Offender’s Submission
[26] Your counsel also adopts the charges of indecent assault as the lead offences, with the charge of male assaults female operating as a feature of the offending.
[27] He submits that an appropriate starting point is two-and-a-half years’ imprisonment.
[28] To this, your counsel suggests an uplift of 10 per cent is appropriate in the circumstances to reflect your previous convictions. That is in effect an uplift of three months. He accepts the uplift could be higher, although to be fair, that is in the context of avoiding a preventive detention sentence.
[29] Your counsel also submits that you are entitled to a 25 per cent discount for your guilty plea.
Purposes and Principles of Sentencing
Relevant Purposes of Sentencing (s 7 Sentencing Act 2002)
[30]I consider the relevant purposes in relation to your sentencing are:
· Holding you accountable for the harm done to the victim (s 7(1)(a));
· Instilling in you responsibility for, and acknowledgement of, that harm (s 7(1)(b));
· Denouncing your conduct (s 7(1)(e));
· Deterring you from engaging in similar offending (s 7(1)(f));
· Protecting the community (s 7(1)(g)); and
· Assisting in your rehabilitation and reintegration (s 7(1)(h)).
Relevant Principles of Sentencing (s 8 Sentencing Act 2002)
[31]The relevant principles of sentencing require me to take into account:
· The gravity of the offending, including your degree of culpability (s 8(a));
· The seriousness of the type of offence (s 8(b));
· Consistency with similar offending (s 8(e));
· The effect of offending on the victim (s 8(f)); and
· An obligation to impose the least restrictive outcome appropriate in the circumstances (s 8(g)).
Aggravating and Mitigating Factors (s 9 Sentencing Act 2002)
Aggravating Factors of the Offending
[32]I consider that the aggravating factors of your offending are:
· That it involved actual violence when you struck the victim on the side of her face (s 9(1)(a));
· That the offending caused harm to the victim, including her injuries of bruising and a cut lip, but in particular the feelings of dirt and disgust and fear of being alone on the streets now (s 9(1)(d));
· That you abused the trust the victim had placed in you, when you invited her into your home. Moreover, I note that while you did not know the victim well, she had previously confided in you and you had been a support person to her (s 9(1)(f));
· The vulnerability of the victim, considering your size over hers; that she was alone in your apartment at the time of the offending and that she was intoxicated (s 9(1)(g)).
Mitigating Factors of the Offending
[33]I do not consider there to be any mitigating factors of the offending.
Sentencing
Relevant Cases
[34]The Crown cited two cases to me.
[35] In Johnson v R, the Court of Appeal dismissed an appeal against a sentence of two years, five months’ imprisonment for indecent assault, which had been imposed on Mr Johnson following a guilty plea.1
[36] Mr Johnson had known the victim for almost a year at the time of the offending and the two of them had become friends. For a period, the two resided together as flatmates, though the victim moved out after Mr Johnson interfered with her relationship with another man. On the evening of the offending the victim arrived at Mr Johnson’s address, intoxicated and angry with him over comments he had made regarding her. She subsequently calmed down and watched a movie with him, falling asleep on the couch.
1 R v Johnson [2016] NZCA 144.
[37] While she was asleep, Mr Johnson removed her clothing so that she was completely naked. He then indecently assaulted her by touching and kissing her vagina and breasts. She awoke the next morning naked and experiencing discomfort to her genitalia.
[38] The Court of Appeal, in confirming the sentence, accepted that a starting point of three years was not too high.2 The trial judge had noted there was an element of breach of trust involved considering the relationship of the offender, and vulnerability considering that she had fallen asleep on his couch.3
[39] In Teriini v R, the Court of Appeal dismissed an appeal against sentence of five years and three months’ imprisonment for indecent assault, injuring with intent to injure and attempting to pervert the course of justice, following a guilty plea.4
[40] With regard to the indecent assault, Mr Teriini at 1.05 am encountered the victim heading in the opposite direction to him along Eastbourne Street, in Hastings. She was heavily intoxicated, which she made apparent to him and asked for assistance in getting home.
[41] While walking together, Mr Teriini grabbed the victim, pulling her into a secluded spot. She attempted to resist, but was too heavily intoxicated to do so. He then removed all of her clothes and sucked her left breast. He subsequently fled the scene, leaving the victim naked and distressed.
[42] The Court of Appeal, in confirming the sentence for indecent assault, accepted that a starting point of three years was not out of range considering the offence involved the use of physical force against a vulnerable victim at night and she was stripped naked and left alone after the offending.5
[43]Defence counsel directed me to two additional cases.
2 At [25].
3 At [25].
4 Teriini v R [2013] NZCA 614.
5 At [23].
[44] In R v Lunjevich, the Court of Appeal allowed an appeal against sentence brought by the Crown, on the basis that a sentence of community detention, intensive supervision and community service was manifestly inadequate.6
[45] Following trial, Mr Lunjevich had been found guilty of indecent assault. He was found to have followed the victim, who was intoxicated, as she left a nightclub. He waited until an opportune time, assaulted her, removed her top and touched her breasts.
[46] The Court of Appeal decided a starting point of three years was appropriate considering that Mr Lunjevich knew the victim was intoxicated and vulnerable, followed her from the nightclub and punched her before beginning the sexual assault.7
[47] In R v Paki, Fitzgerald J imposed a sentence of two years and six months’ imprisonment for indecent assault.8
[48] Mr Paki had sexually assaulted the victim while she was holding her one-month old baby and while the victim was staying at his house. He had pushed her up against a wall and forced her hand into his pants. He then proceeded to rub her hand up and down his penis. The victim struggled and yelled at Mr Paki to stop, being concerned for the safety of her baby. He did stop and left the house.
[49] The Judge adopted a starting point of 18 months, on account of the vulnerability of the victim, the breach of the victim’s trust, the ongoing emotional harm to the victim and the physical force used. 9 She remarked this was slightly generous. An uplift of 12 months was imposed for previous sexual offending and because the offending was committed while the offender was subject to an extended supervision order.10
6 R v Lunjevich [2012] NZCA 454.
7 At [17].
8 R v Paki [2017] NZHC 79.
9 At [48].
10 At [51].
Analysis
Setting a Starting Point
[50] I accept the submissions of Crown and the defence that the indecent assaults should be taken as the lead charges, with the charge of male assaults female operating as a factor in determining the appropriate starting point.
[51] I agree with the Crown that the offending is somewhat comparable to that in Johnson and Teriini. You took advantage of a vulnerable victim who was intoxicated. Similar to Johnson, the victim had placed trust in you when she entered your home. In both cases, the victim was alone with, and in a position of vulnerability vis-à-vis, the offender. In the present case, the victim was intoxicated and alone with you, a considerably larger man, and at your flat. I accept for those reasons she was vulnerable.
[52] I do not accept the submission of the defence that the offending in Lunjevich was of a higher magnitude. Admittedly in that case, there was a high level of premeditation, but the offending in the present was much more sustained and involved two separate acts, reflected in the two separate charges: sucking the victim’s breast; and twice forcing her hand onto your penis. These offences were committed while you exerted considerable physical force over the victim, holding her in place and sitting on top of her. You also resorted to physical violence by hitting her.
[53] I agree with the Judge in Paki that the starting point in that case was generous. I also note that the actual indecent assault in that case was of a lower magnitude than the present.
[54] Given the vulnerability of the intoxicated victim; the breach of the trust which she had placed in you when you invited her into your apartment; the fact that she remained alone with you after her partner had left; the prolonged and serious nature of the indecent assault, including pulling down her top to suck her breasts, forcing her hand onto your penis twice, removing her pants and underwear to below her knees and sitting on top of her while she was almost naked; and the use of force and violence in order to effect the indecent assault, I adopt a starting point of three years’ imprisonment for the offending overall.
Adjusting the Starting Point
[55] The only relevant aggravating factor, but it is a serious one, is your conviction history. You have convictions for similar offending involving indecent assaults and for higher magnitude offending, including unlawful sexual connection and sexual violation.
[56] The offending is spread out over the past three decades. There are lengthy periods without offending. However, there have also been several periods where you have been imprisoned and therefore unable to offend.
[57] Your past offending is reprehensible and worryingly persistent. There is a consistent pattern in your offending relating to vulnerable women who resist your sexual advances, at which point you become violent and force yourself upon them. Your previous and current offending illustrates a failure on your part to address the underlying causes as to why you offend in such a way. You were under an ESO at the time of the offending. You clearly pose a high risk to the community. I therefore accept that an uplift is appropriate. This is to ensure the safety of the community and to deter you from future offending. I would increase the starting point by eight months.
[58] Finally, I would allow the maximum reduction of 25 per cent for the guilty plea, in line with Hessell v R.11
[59] The sentence therefore arrived at is two years, nine months’ imprisonment for each of the charges of indecent assault, to be served concurrently.
[60] On the charge of male assaults female, the sentence is two months’ imprisonment, with the deduction of half a month for the guilty plea, leaving a one-and-a-half-month sentence to be served concurrently.
11 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Preventive Detention
Approach to Preventive Detention
[61] The Crown seeks a sentence of preventive detention, to protect the community from what they describe as “the significant and ongoing risk” posed by you, Mr Shepherd.
[62] Preventive detention is an indeterminate sentence. If it is imposed, I have to specify a minimum term which you will be required to serve. It will then fall to the discretion of the Parole Board to decide whether you should be released, if they are satisfied you no longer pose an undue risk to the safety of the community.
[63] In contrast to sentencing, preventive detention is not punitive. 12 Its purpose is to protect the community from those who pose a significant and ongoing risk.13 It is not a sentence of last resort, although its imposition must be carefully considered.14
Pre-conditions to Preventive Detention
[64] Section 87(2) of the Sentencing Act 2002 imposes three conditions to the imposition of preventive detention. However, the existence of these conditions does not mandate a sentence of preventive detention; its imposition remains a matter of discretion.15 The conditions are as follows:
(a)a person is convicted of a qualifying sexual or violent offence;
(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 offence if the person is released at the sentence expiry date.
12 R v C [2003] 1 NZLR 30 (CA) at [5]-[7].
13 Sentencing Act 2002, s 87(1), R v Parahi [2005] 3 NZLR 356 (CA) at [85].
14 R v C [2003] 1 NZLR 30 (CA) at [6].
15 R v C [2003] 1 NZLR 30 (CA) at [6].
[65] It is uncontested that you have committed a qualifying offence, being indecent assault under s 135 of the Crimes Act 1961, which has a maximum sentence of seven years’ imprisonment.
[66] It is further uncontested that you were well over the age of 18 years at the time of committing the offence.
[67]In considering the third condition, I must have regard to the s 87(4) factors:
(a)Any pattern of serious offending disclosed by your history;
(b)The seriousness of the harm to the community caused by the offending;
(c)Information indicating a tendency to commit serious offences in the future;
(d)The absence or failure of efforts by you to address the cause(s) of the offending; and
(e)The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[68] This overall s 87(4) analysis is to be determined using reports from at least two appropriate health assessors about the likelihood of the prisoner committing a further qualifying sexual or violent offence.16 The reports are summarised in my analysis below.
[69] The assessment of the risk that the offender poses is the central focus of the preventive detention enquiry.17 The offender’s entire criminal history is to be considered in assessing his pattern of offending.18 In terms of the level of potential risk, it has been said that “there has to be a significant, ongoing risk of serious harm before somebody is incarcerated indefinitely”.19
16 Sentencing Act, s 88(1)(b).
17 Sentencing Act, s 87(2)(c).
18 R v McGee (1995) 13 CRNZ 108.
19 R v Parahi [2005] 3 NZLR 356 (CA) at [85].
Crown Submissions
[70] The Crown submits that your offending does disclose a pattern of serious sexual offending. The pattern is persistent and lifelong, involving sexual offending against adolescent and adult women known to you. Intoxication of the female victims of your offending is a consistent theme. This pattern of offending was so serious that an Extended Supervision Order (ESO) was sought and granted on 20 December 2016 against you, Mr Shepherd.
[71] The Crown contends that the harm caused to the community through your offending against vulnerable women is significant.
[72] The Crown points to the reports of Dr Pillai and Dr Brindley that you currently present a high risk of reoffending. The Crown points out that Dr Pillai has assessed you before in 2006 when you came to the Court for sentencing and were considered for preventive detention. Dr Pillai’s latest opinion is that your risk of reoffending can only be assessed as being even higher now than it was in 2006, when he also assessed you at a high risk of reoffending.
[73] The Crown notes your sense of entitlement and lack of empathy, pointing out that in respect of all your previous offending, you have shifted the blame for your actions onto the victims. Moreover, that you lack robust internal factors to help you identify the causes of your offending, which could allow you to mitigate the serious risk of harm that you pose.
[74] The Crown also notes that you have been involved in treatment programmes to address the causes of your offending. They note the admission you made to Dr Brindley that you were just “playing the game” and “telling them what they wanted to hear”. Moreover, not only was your own engagement in treatment sadly superficial, but you encouraged other offenders involved in the programme to engage in the same conduct.
[75] The Crown submits that your risk of sexual reoffending has not diminished and that after a finite sentence of imprisonment you will reoffend again.
Defence Submissions
[76] Mr Trotter, in contesting that a pattern of serious offending is apparent from your history, points to the latest offending as suggesting a de-escalation in the seriousness of the offending. The suggestion is that at some point, Mr Shepherd, you gave up or loosened your hold on the victim and she escaped your flat. Counsel suggests this shows a level of reflection and control on your part.
[77] Mr Trotter also asks me to place limited weight on the fact that you told Dr Brindley, in relation to the programmes you engaged in while in prison, that you had been just “playing the game” and “telling them what they wanted to hear”. Mr Trotter suggests that this statement is inconsistent with the report of Dr Pillai and that the fear of preventive detention may have led to some confusion on your part when speaking with Dr Brindley.
[78] Mr Trotter also submits that the availability of an ESO and whether that would address the concern of risk to the community must be considered. As part of an ESO, a court may impose 24-hour monitoring and require a defendant to wear an alcohol detection bracelet. Counsel referred to Court of Appeal authority which suggests that an ESO may tip the balance against preventive detention being imposed for lower-level sexual offending.
[79] Mr Trotter submits that the fact you are only facing a relatively short period of imprisonment is inconsistent with the minimum period of imprisonment of five years that must be imposed when a sentence of preventive detention is imposed.
Preventive Detention: Analysis
Pattern of serious offending (s 87(4)(a))
[80] I have no issue in concluding, Mr Shepherd, that over the past three decades you have engaged in a pattern of serious violent and sexual offending towards vulnerable women.
[81] Your victims have been, with one exception, known to you as associates. Three of your victims have been intoxicated and vulnerable. They have trusted you up until the moment you betrayed that trust by offending against them. You have offended against them in situations where they have rejected your sexual advances. This has
made you angry and confused and you have lashed out at them with violence and threats of violence. Violence has allowed you to commit awful sexual offences of rape, sexual violation and indecent assault against these victims. A fourth victim was a middle-aged woman asleep in bed and clearly very vulnerable in her own home.
[82] Alcohol consumption, on your own part, has also played a regular role in your offending.
Seriousness of the harm to the community caused by the offending (s 87(4)(b))
[83] The seriousness of the harm to the community caused by your offending is considerable. The nature of your offending has caused your victims physical, psychological and emotional harm. In the sentencing decision of this Court in 2006, the Judge alluded to the victim impact statement, noting that while the consequences for the victim were not quite as dire as is often the case, it had still been a painful experience for the victim, both physically and psychologically.
[84] Though I do not have access to victim impact statements in relation to any of your other offending, I have no doubt that the indecent assaults and the rape you committed against your other victims has left them similarly affected.
Information indicating a tendency to commit serious offences in the future (s 87(4)(c))
[85] In their reports, Drs Brindley and Pillai refer to standardised tools used to assess your risk of reoffending.
[86] The Static-99 assessment tool was employed to estimate the probability of violent and sexual reoffending on your part. It is used for adult males who have been convicted of at least one sexual offence against a non-consenting adult. Both Dr Pillai and Dr Brindley placed you in the category of offenders who pose a high risk of future sexual offending.
[87] The Manual for the Sexual Violence Risk-20 was similarly employed to measure your risk of future sexual offending. Again, you were assessed as posing a high risk of sexual violence recidivism.
[88] When assessed against the Structured Assessment of Protective Factors for Violence Risk, which measures risk-reducing factors relevant to an offender and their
offending, you were noted by Dr Brindley as lacking robust internal factors to mitigate against risk.
[89] Overall, Dr Brindley considered that you posed a high risk of both violent and sexual recidivism.
[90] Dr Pillai also was of the opinion, based on the application of the Static-99 test, that you pose a high risk of sexual reoffending. He emphasised the difficulty of presenting the Court with an accurate picture of your risk of reoffending, considering that an assessment is predicated on your attitudes, emotional state and psychological circumstances at the time of the offending, which was May 2017. Dr Pillai noted that it is possible any assessment made of your future offending now could change over time with growth in your personal insight and participation in treatment regarding substance abuse and sexual offending.
[91] Nonetheless Dr Pillai, who as I have said, provided a psychological report in relation to you in 2006 when you were assessed for preventive detention, determined that you posed an even higher risk of reoffending now than then.
Efforts by the offender to address the cause of the offending (s 87(4)(d))
[92] I agree with defence counsel that there is an inconsistency between the reports of Dr Brindley and Dr Pillai with regard to your efforts to address your offending. Dr Pillai is of the (brief) opinion that you have made good, although insufficient, efforts to address your offending propensity.
[93] Dr Brindley is of the opinion that the rehabilitative programmes directed towards addressing the problematic thoughts, attitudes and behaviours that have led to your offending, have not been successful. Your admission to Dr Brindley that you had been advised to just “play the game” and “tell them what they want to hear”, coupled with your admission that this is in fact what you have done, is significant. Not only was your own involvement in the treatment programme superficial, you admitted to Dr Brindley that in your role as a mentor, you had encouraged other offenders to similarly subvert the therapeutic process by instructing them they should also just “play the game”. The conclusion Dr Brindley drew is that, although you have been involved in treatment programmes designed to address the causes of your offending,
your participation in these programmes has been superficial and you remain unmotivated to address the causes of your offending.
[94] I find Dr Brindley’s conclusions on the matter the most helpful. She notes that you still deny elements of your prior offending, and the offending for which you are being sentenced today, despite your guilty plea. Your refusal to accept full responsibility for what you have done poses a significant barrier to you developing insight into your offending and changing your behaviour. If you are to ever pose even a reduced risk to the community, your serious engagement in rehabilitative programmes designed to deal with the causes of your offending, must be concerted and genuine.
Does a lengthy determinate sentence provide adequate protection for society? (s 87(4)(e))
[95] Defence counsel argued that I should seriously consider the potential imposition of an ESO upon you, Mr Shepherd, after you have served your sentence, as a sufficient means of protecting vulnerable female acquaintances of yours from your offending.
[96] The obvious problem here is that you were subject to an ESO at the time of your most recent offending. For that reason, among others, I believe an ESO would not provide nearly the same protection to the community as a sentence of preventive detention is intended to achieve. While I accept Mr Trotter’s submission that alcohol consumption is a common theme running through your offending, I am of the opinion that the more dangerous elements of your offending are that you prey on vulnerable women, that you show a disregard for the rights of those women to reject your advances, and that when they do, you become angry and violent towards them, culminating in a disregard for their sexual and bodily autonomy. I am far from satisfied that an ESO would inhibit your offending, or that the addition of a non- alcohol condition and bracelet would make a material difference.
[97] There is an incongruity in the present case. I have sentenced you to two years, nine months’ imprisonment. If I find that preventive detention is appropriate, I must sentence you to at least five years under s 89 of the Sentencing Act. The Court of Appeal in R v Burkett noted that, in situations such as the present, where
disproportionality in sentences is present, the Court must give careful consideration to the need for preventive detention.20
[98] The Court of Appeal in R v Parahi accepted that sentences of preventive detention can be imposed in situations such as the present, albeit only exceptionally.21 It will usually be appropriate where the offending is persistent, firm warnings have been issued against the defendant and the offending has caused significant harm, which is likely to be repeated against future victims.
[99] Mr Shepherd, you have twice before been faced with preventive detention. The first time was in 1992 when you were sentenced by Anderson J for rape. (I do not have a copy of that sentencing judgment, but the relevant paragraph is reproduced in the judgment of Williams J in 2006, although incorrectly referred to as a 1982 decision, rather than 1992.)22 At that time you were told that, if you appeared again on another qualifying offence, you would be likely to face preventive detention.
[100] In front of Williams J in 2006, you were once more warned.23 The sentencing Judge preferred a lengthy finite sentence to the imposition of preventive detention. The Judge’s warning was in no uncertain terms. He made it clear that if you offended again in a qualifying way, a sentence of preventive detention would be a virtual certainty.24
[101] I take into account also that your previous history has not been at the lower end of the spectrum, as it was in Carline v R.25
[102] Even if I had been able to impose a lengthier sentence upon you, Mr Shepherd, I would have remained disposed to impose a sentence of preventive detention on you as well. I do not consider that the community would be sufficiently protected from the high risk of future offending you pose, if I were to abstain from imposing preventive detention.
20 R v Burkett CA416/00, 21 February 2001 at [21].
21 R v Parahi [2005] 3 NZLR 356 (CA) at [86].
22 R v Shepherd HC Auckland CRI-2004-4-21442, 25 July 2006 at [15].
23 R v Shepherd HC Auckland CRI-2004-4-21442, 25 July 2006 at [36].
24 R v Shepherd HC Auckland CRI-2004-4-21442, 25 July 2006 at [37].
25 Carline v R [2016] NZCA 451 at [21].
[103] I conclude that you are likely to commit another qualifying sexual offence if you are released at the sentence expiry date of two years, nine months; that there is a significant ongoing risk of serious harm and that I should impose preventive detention.
Minimum period of imprisonment - s 89
[104] If preventive detention is imposed, a minimum period of imprisonment must also be imposed. A minimum term must not be less than five years and it must be the longer of:
a) The minimum period required to reflect the gravity of the offence; or
b) The minimum period required for the safety of the community in light of the prisoner’s age and the risk posed by that prisoner to the safety of the community at the time of sentencing.
[105]I adopt a minimum period of five years’ imprisonment.
Sentence
[106] Mr Shepherd, I sentence you to two years, nine months’ imprisonment for the offences of indecent assault, to be served concurrently.
[107] I also sentence you to one-and-a-half months’ imprisonment for the offence of male assaults female, to be served concurrently.
[108] I also sentence you to preventive detention. You will serve a minimum period of imprisonment of five years before you are eligible for parole.
[109]Stand down please.
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Hinton J
ADDENDUM
As a consequence of the operation of ss 87 and 89 of the Sentencing Act 2002, the final sentence for the offences of indecent assault is preventive detention with a minimum non-parole period of five years’ imprisonment.
The Registrar noted that the notice of consequences of first warning under s 86B(4) of the Sentencing Act 2002, signed by Moore J on 29 November 2017 mistakenly listed in addition to the two convictions for indecent assault, a conviction for assault with intent to commit sexual connection under s 129(2) of the Crimes Act 1961. That last charge had been withdrawn and was not the subject of any conviction. Mr Trotter confirmed that the actual warning given in Court had been correctly given in respect of the two convictions for indecent assault, so that there was no need for a corrective warning to be given. An amended notice of consequences of first warning citing only the two convictions for indecent assault was signed by me today.
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