R v T
[2020] NZHC 3360
•11 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 HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2019-019-2213
[2020] NZHC 3360
THE QUEEN v
T
Hearing: 11 December 2020 Appearances:
R Mann for the Crown
J Gurnick for the Defendant
Sentence:
11 December 2020
SENTENCING NOTES OF GORDON J
Solicitors: Crown Solicitor, Hamilton Counsel: J Gurnick, Hamilton
R v T [2020] NZHC 3360 [11 December 2020]
Introduction
[1] Mr T, at the age of 54 years, you appear today for sentence having pleaded guilty, following a sentence indication, to 19 charges of sexual offending.
[2]The charges are:
(a)Six of indecency with a girl between 12 and 16 (four are representative);1
(b)Two of rape (one is representative);2
(c)Three of indecency with a girl under 12 (two are representative);3
(d)Four of sexual violation by unlawful sexual connection;4
(e)One of sexual violation by rape;5
(f)One of assault with intent to commit sexual violation;6
(g)One of sexual conduct with a child under 12;7 and
(h)One of abduction for purposes of sexual connection8
[3] The most serious of the offences, sexual violation by unlawful sexual connection, carry a maximum penalty of 20 years’ imprisonment.
1 Crimes Act 1961, s 134(2)(b) and s 134(2)(c): maximum penalty of seven years’ imprisonment (corrected in Crown submissions). Note Charge 1 and Charge 2 are doing an indecent act and Charge 9 and Charge 10 are inducing an indecent act.
2 Crimes Act 1961, s 128(1)(a): maximum penalty of 14 years’ imprisonment.
3 Crimes Act, s 133(1)(a) (indecent assault) and s 133(1)(b) (doing an indecency): maximum penalty of 10 years’ imprisonment.
4 Crimes Act 1961, s 128(1)(b): maximum penalty of 14 years’ imprisonment for some of the charges and 20 years’ imprisonment for others.
5 Crimes Act 1961, s 128(1)(a): maximum penalty of 14 years’ imprisonment.
6 Crimes Act 1961, s 129(2): maximum penalty of 10 years’ imprisonment.
7 Crimes Act 1961, s 132(3): maximum penalty of 10 years’ imprisonment.
8 Crimes Act 1961, s 208(b): maximum penalty of 14 years’ imprisonment.
[4] At the time you entered your guilty pleas, the Crown indicated it would seek a sentence of preventive detention. The Court accordingly ordered reports from two health assessors under s 88 of the Sentencing Act 2002 (the Act).
[5] The Crown submits you represent a significant risk of future serious offending and a sentence of preventive detention is necessary to protect the community. Mr Gurnick, appearing on your behalf, says that this risk has not been established or is declining due to the advancement of age, and that a lengthy determinate sentence with a minimum period of imprisonment will adequately protect the community. A sentence of preventive detention cannot therefore be justified.
[6]I will begin by summarising the facts of your offending.
Background
[7]You are related to the four victims:
(a)Victim L is your sister;
(b)Victim M is your niece;
(c)Victim N is your niece;
(d)Victim O is Victim N’s daughter (your niece’s daughter).
[8] Most, but not all, of your offending can be characterised as historic. It arises out of events which commenced around August 1980 and continued until around June 1992. You were born in August 1966 and you were about 14 years old at the time the offending began. This offending in the time period from 1980 to 1992 was against L, M and N. The offending against Victim O occurred more recently, between August 2011 and August 2013.
Victim L
[9] Victim L, your sister, lived at the same address as you between 26 August 1980 and 10 January 1983. The offending against her occurred during this time. She was
12 or 13 years old when the offending began. You were aged between 14 and 16 years during the period of the offending against L. You entered her bedroom and would begin by rubbing her breasts, later removing her lower clothing and rubbing her genitals and placing your hand over her mouth to prevent her from screaming. These actions caused her to urinate in her bed. Victim L says this occurred multiple times during a two-year period.9
[10] This touching caused your penis to become erect. You would force her legs open and insert your penis into her vagina. You would engage in intercourse until you ejaculated. You would then warn Victim L not to tell anyone what had occurred. Victim L says this activity occurred in a similar manner approximately twice a week for two years until you left the address.10 You returned to live at the address when Victim L was 16 years old and these activities resumed.11 You intimidated Victim L to prevent her from telling anyone, saying things like, “I’ll kill your kids when you have kids if you tell”.
Victim M
[11] Victim M, your niece, was at the same address as you between 21 October 1982 and 21 October 1985.12 She was between 9 and 12 years old during this time. You were aged between 16 and 19 years old. On a number of occasions you entered her bedroom while she slept. You lay down next to her and touched and kissed her before forcing her legs apart and touching her genitals with your tongue.13 After these activities you would make threatening comments, telling her to stay quiet about what had occurred and that no one would believe her and she would get a hiding. On several other occasions, you placed her hand on your penis and forced her to masturbate you.14
[12] On a further occasion, between 21 October 1985 and 21 October 1987, when Victim M was 12 or 13 years old, you held her down in her bedroom, forced her legs
9 Giving rise to two representative charges of indecency with a girl between 12 and 16.
10 Giving rise to a representative charge of rape.
11 Giving rise to a charge of rape.
12 It is not clear from the summary of facts if you were living there but reference is made to you babysitting another victim and her siblings at this address in relation to alleged offending against Victim N.
13 Giving rise to a representative charge of indecency with a girl under 12.
14 Giving rise to a representative charge of indecency with a girl under 12.
apart and touched her genitals with your tongue.15 This occurred on at least one further occasion.16 Just as you did when she was younger, on these three other occasions you placed her hand on your penis and forced her to masturbate you.17
Victim N
[13] Victim N, also your niece, was at the same address as you and Victim M between 4 June 1986 and 4 June 1988. You were responsible for babysitting Victim N and her siblings. Victim N was between 8 and 9 years old at this time. You were aged between 19 and 21 years old. You initially inserted your fingers into Victim N’s vagina, which caused her pain.18 You went on to insert your penis into her vagina and engaged in intercourse.19 You threatened to harm Victim N and told her that you would kill her parents if she told anyone what had occurred. Her vagina was red and sore after this and she had difficulties walking. You also simulated sexual activity with her over her clothing.20 You forced her onto a bed. She said she did not want to do this You said you would kill her. After you had finished, you again said you would kill her if she told anyone and that you would kill her father.
[14] Between 4 June 1990 and 4 June 1992, Victim N stayed at your address in Putaruru. You drove her to Katikati in your ute but stopped at a rest area after dark. You put your hands into her pants and inserted your finger or fingers into her vagina.21 She jumped out of the ute to escape you.
Victim O
[15] Victim O, the daughter of Victim N, was staying at the same address as you in Tauranga between 23 August 2011 and 23 August 2013. Victim O was five or six years’ old at the time of the offending. You were in your mid-40s. Victim O was asleep in her bedroom when she was woken by you. You removed your pants and exposed your
15 Giving rise to a charge of indecency with a girl between 12 and 16.
16 Giving rise to a representative charge of indecency with a girl between 12 and 16.
17 Giving rise to a charge of indecency with a girl between 12 and 16 and a representative charge of a indecency with a girl between 12 and 16.
18 Giving rise to a charge of sexual violation by unlawful sexual connection.
19 Giving rise to a charge of sexual violation by rape.
20 Giving rise to a charge of indecent assault on a girl under 12.
21 Giving rise to a charge of sexual violation by unlawful sexual connection.
penis. You threatened to hurt people, instructed her to touch your penis and took her head forcing her mouth over your penis and moving her head back and forth.22 She tried to push you away but was not able to do so. You attempted to touch her genitals but she was able to pull away from you so you could not do so.23 You left her bedroom.
[16] On a separate occasion you put Victim O’s hand on your penis and required her to masturbate you.24 On a further occasion you took Victim O and put her in the back seat of your car. She tried to leave the car but was unable to do so. You touched her genitals and inserted your fingers into her vagina.25 You refused to stop when asked, and when Victim O attempted to leave the car, you locked the doors.26 She experienced pain in her vagina as a result of this action. At some point, you asked Victim O: “did you know I fucked your mum.”
Approach to sentencing
[17] I must first determine an appropriate finite sentence before considering whether I should impose a sentence of preventive detention.
[18]Setting a finite sentence involves two steps:27
(a)The Court first sets a starting point for your sentence, which takes into account the facts of your offending and adjusts for aggravating and mitigating features; and
(b)The Court then adjusts the starting point up or down taking into account your personal circumstances and your guilty plea, calculated as a percentage of the adjusted starting point.
[19] Throughout this process, the Court has regard to the purposes and principles of sentencing set out in ss 7 and 8 of the Act. Of particular relevance to your offending
22 Giving rise to a charge of sexual violation by unlawful sexual connection.
23 Giving rise to a charge of assault with intent to commit sexual violation.
24 Giving rise to a charge of sexual conduct with a child under 12.
25 Giving rise to a charge of sexual connection by unlawful sexual connection.
26 Giving rise to a charge of abduction for the purpose of sexual connection.
27 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [46].
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 acknowledgment of that harm, to denounce your conduct, to deter you and others from committing similar offences and to protect the community.
[20] The Court is also required to take into account the gravity of your 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
[21] In this case the first step referred to above has already occurred. You pleaded guilty following a sentence indication given by Downs J. That indication gave a starting point of 19 years’ imprisonment. The starting point places your offending at the upper end of the most serious band of R v AM, the guideline judgment for sexual offending.28
[22] I agree with the starting point adopted by Downs J. It is consistent with the purposes and principles of sentencing I have referred to. It is also broadly comparable to other similar cases. For example, in R v H, Downs J adopted a starting point of 18 years’ imprisonment in a similar case of serious and repeated sexual offending by a defendant against three young grand-daughters.29 There were no prior convictions for sexual offending in that case and age was a mitigating factor but it is not in relation to your offending.
[23] In another case, Wilson v R, the Court of Appeal affirmed a sentence where the Judge adopted a starting point of 16 years’ imprisonment. The offending was similar in that it was serious, over a long period against vulnerable children but only involved two victims.30 Finally, in R v A, I adopted a starting point of 20 years’ imprisonment in a case involving serious and repeated sexual offending by a father against two of his four daughters and violent offending against the other two.31 The scale of the
28 R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [90].
29 R v H [2018] NZHC 2144 at [16].
30 Wilson v R [2018] NZCA 489 at [49].
31 R v A [2018] NZHC 2024 at [25].
offending, the vulnerability of the victims and the extent of the breach of trust were particularly aggravating factors in that offending.
[24] I take the two charges of sexual violation by unlawful sexual connection against Victim O as the lead offences.
Personal aggravating and mitigating features
[25] In the absence of the necessary reports, it was not possible for the Court to assess aggravating and mitigating factors personal to you when giving the sentence indication. Those reports have now been completed and I will undertake that exercise in reaching a final determinate sentence.
Aggravating features
[26] You have an extensive conviction history but only one prior conviction for sexual offending. This offence was committed against a child in 2005. You were sentenced to six months’ imprisonment. You otherwise have 82 convictions over a 32- year period, primarily for theft but also for violence and driving related offending. You have been convicted of failing to comply with court orders and drug offending too. Sixteen terms of imprisonment have been imposed.
Mitigating features
[27] Mr Gurnick has provided the Court with a cultural report prepared by Delwyne Woodmass (undated but it records that it was prepared for sentencing on 17 June 2020). On the basis of the matters referred to in that report, Mr Gurnick submits a discount of up to 15 per cent is available for personal circumstances.
[28] Ms Woodmass prepared her report based on conversations with you and your partner. She records that as a child of eight or nine, a close family member would collect you from school at lunchtime and he would sexually abuse you. This is said to have continued until you were at least 11, when that family member moved away. He died not long afterwards. Your family would not address the abuse you suffered. You reported that your sexual relationship with your sister commenced after his death and that such a relationship was not uncommon at your whānau marae. Such behaviour,
you said, was normal. However, you denied sexual intercourse occurred and you said the sexual relationship was consensual. (I note in relation to your denial of sexual intercourse with your sister that you have said at another time you believed at one stage you were the father of her oldest child).
[29] The activities with your sister continued until you were sentenced to detention in a secure youth residence; you say your sister chose to end it after you were released. You continued to engage in offending, primarily burglary, from this time so you would be away from your father, whom you described as an angry and frightening man who would frequently inflict violence on you.
[30] The report noted that you have a distorted view of right and wrong. You justify your actions in terms of other people’s behaviour; that what you were doing was done by everyone in the community. On this basis, you do not consider you have caused anyone harm. Ms Woodmass says you have minimised and normalised your behaviour. However, you were also deprived of care from your parents, at least until much later in your life, and you were unable to address the harm caused to you from the abuse you suffered as a child.
[31] Mr Gurnick acknowledges it is difficult to draw a direct link between your background and the offending, particularly the most recent offending against Victim O. However he draws attention to your own experience of sexual abuse as a child and your family’s unwillingness to deal with it. He also notes your difficult relationship with your father and that your offending, other than your sexual offending, was to avoid his violence. Mr Gurnick says the report assists in applying the following criteria in sentencing, as identified by Whata J in Solicitor-General v Heta:32 culpability; determining the least restrictive sentence; the disproportionate severity of a sentence owing to your circumstances; rehabilitation and remorse.
[32] I consider a discount is available given your personal circumstances. Your own experience of sexual abuse as a child and your other offending to avoid your father go to your culpability in particular. I acknowledge you reconciled with your father towards the end of his life.
32 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [39].
[33] There are two points in the report I will address a little further. First, you evidently know little about your ancestry and that does indicate a degree of dislocation from your cultural traditions. But you were raised, I apprehend, in a marae community. You characterised that community as one associated with your father’s stepfather near Tauranga rather than with your biological ancestry. That suggests your upbringing was not completely divorced from your cultural traditions. I therefore consider this a neutral feature of the report.33
[34] Second, you attempt to normalise your offending with reference to this marae community. You say that when you were a child, sexual activity between adults and children who were closely related to each other was common at the marae and in their homes. You told Ms Young, one of the health assessors who has prepared a report, that sexual relationships between family members were common. But Ms Young notes that you knew your parents would not approve and you concealed your activities in relation to your sister from them. These two aspects of your account are difficult to reconcile.
[35] More importantly, your attempt at normalising your behaviour with your sister goes to the issue of remorse. Additionally, on the issue of remorse, you have attempted to withdraw your guilty pleas in relation to two of the victims – one of your nieces and her daughter (Victims N and O) – and you deny any offending against them. That application was heard in this Court on 1 and 2 September 2020 and was refused by Palmer J on 1 October 2020.34 In addition to denying the offending against Victims N and O, you also denied the offending against Victim M. You only accepted sexual conduct with your sister. Yet the cultural report must have been prepared after you entered all your guilty pleas, as it was prepared for sentencing.
[36] Your efforts to normalise the offending against your sister, and your justification for entering guilty pleas to all the other charges, which you say was “to get it all over and done with”, emphasise your lack of remorse and unwillingness to
33 I also note you told Dr Hansby that you only attend local marae for tangi. I do not understand this to contradict your statements to the cultural report writer as you were speaking to her about your childhood and to Dr Hansby about your adult life. It appears your upbringing in a marae community with your whānau was not maintained when you became an independent adult.
34 R v T [2020] NZHC 2570.
acknowledge the harm caused by your offending. No discount for remorse is accordingly available in consequence.
[37] Returning to your personal circumstances, having regard to the sexual abuse by the family member against you when you were young, and the fact that your family did not address the abuse, I consider a discount of 7.5 per cent is appropriate for your personal circumstances.
Guilty plea
[38] I have already referred to the sentence indication of Downs J in response to which you pleaded guilty. The Judge also indicated you would receive a discount of 20 per cent if you pleaded guilty within a specified period of time.
[39] Ms Mann, for the Crown, submits that your application to withdraw your guilty pleas in relation to two of the four victims requires reconsideration of that discount. She says a discount of 15 per cent rather than 20 per cent is appropriate given your conduct. She refers to the fact that evidence was required to be given at the hearing before Palmer J. But I note that none of the victims was required to give evidence at that hearing.
[40] Ms Mann’s submission would have the effect of taking account of remorse in assessing a discount for guilty plea. This would be inconsistent with Hessell v R. The Supreme Court stated that the Act requires a guilty plea to be assessed separately from remorse shown by the offender. That is, “[w]here remorse is shown by the defendant in such a way [by pleading guilty], sentencing credit should properly be given separately from that for the plea”.35 I consider I have dealt with the application to withdraw your guilty pleas when I addressed the issue of remorse earlier and decided that no discount is available for remorse.
[41]I accordingly adopt the discount of 20 per cent for your guilty pleas.
35 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
Final sentence
[42] The starting point of 19 years’ imprisonment and an aggregate discount for mitigating factors (guilty plea 20 per cent and 7.5 per cent based on the cultural report) of 27.5 per cent gives a final sentence of 13 years, nine months’ imprisonment.
Minimum period of imprisonment
[43] The Court may impose a minimum period of imprisonment that is longer than the one-third statutory minimum if it is satisfied that that period is insufficient for all or any of the following purposes:36
(a)Holding an 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; and
(d)Protecting the community from the offender.
[44] Ms Mann submits that, in the event a finite sentence is imposed, the Court should also impose a minimum period of imprisonment of ten years or two-thirds of the term of the sentence. She says this is necessary for the four purposes I have just set out. Mr Gurnick submits that the Court might impose a minimum period of imprisonment of up to two-thirds of the term of the sentence.
[45] This is a case where the statutory minimum of one-third would, in particular, be insufficient to hold you accountable for the harm you have done to the victims (which is apparent from the three victim impact statements which I have read) and to denounce your conduct.
36 Sentencing Act 2002 , s 86(2).
[46] I would therefore impose a minimum period of imprisonment of two-thirds of the term of 13 years, nine months’ imprisonment if I do not impose a sentence of preventive detention.
Preventive detention
[47] Having fixed what I regard as the appropriate finite sentence, I must now consider preventive detention. Preventive detention is a sentence of imprisonment for an indefinite period. If imposed, you will be released only when the Parole Board is satisfied you no longer pose a risk to the community. The purpose of preventive detention is to protect the community from those who pose a significant and on-going risk to the safety of its members.37
[48] A person is eligible to be considered for preventive detention if three pre-requisites are met. First, a person must be convicted of a qualifying sexual or violence offence. Second, the person must be 18 years or older at the time of committing the offence. There is no dispute that those two pre-requisites are met in your case, in relation to Victim M (for the latter part of the period of offending) and for Victims N and O.
[49] The third pre-requisite is that the Court must be satisfied the offender is likely to commit another qualifying sexual or violent offence if released at the sentence expiry date. If that pre-requisite is met, then the decision whether to impose preventive detention involves the exercise of a discretion.38 In considering this pre-requisite, the Court needs to be satisfied; proof beyond reasonable doubt is not the standard.39 Rather, the Court comes to a judicial decision based on all the evidence available.40
Reports
[50] I am required to consider reports from at least two appropriate health assessors about the likelihood of you committing a further such offence.41 Two reports were
37 Sentencing Act 2002 , s 87(1).
38 Leonard v R [2013] NZCA 553 at [7].
39 R v Leitch [1998] 1 NZLR 420 (CA) at 428.
40 R v Carline [2016] NZHC 114 at [44].
41 Sentencing Act 2002, s 88(1)(b).
commissioned for that purpose. Both are dated 9 April 2020. One was prepared by Dr Hansby, a consultant forensic psychiatrist, and the other by Ms Young, a registered clinical psychologist.
[51] Dr Hansby’s opinion is that your offending discloses a pattern of repeated sexual violence over several decades against young females with whom you are familiar and have unsupervised access. The victims are vulnerable and you exploit your role as an older authority figure routinely using coercion and threats to avoid detection. Your denial of much of the offending demonstrates a lack of self-awareness and attitudes which condone sexual violence. Dr Hansby observes that you have not engaged in any detected sexual offending since 2013, though this has to be balanced against your history of using threats to discourage victims from disclosing offending and in the absence of a credible explanation for your cessation in offending. He can do little more than note that sexual offending tends to decline with age.
[52] In these circumstances, Dr Hansby considers it is difficult to assess your current risk profile. Your willingness to participate in a treatment programme is characterised as encouraging despite your denial of most of your offending. Until you are able to acknowledge your offending, a risk mitigation strategy will be difficult to develop. However, that can be partially addressed by conditions which prevent you having unsupervised access to young females. Dr Hansby considers non-intensive supervision strategies would not, by themselves, be adequate given your history of breaching court orders.
[53] Ms Young’s assessment draws from her interview with you and her conversations with your long-term partner and one of your other sisters. Indicators of your higher risk of sexual offending that she identifies are the persistent nature of the offending over many decades with multiple overlapping victims who were particularly vulnerable due to their age and your relationship to them. You were able to use physical violence, threats and other coercion and bribes to avoid disclosure for an extended period.
[54] Further, Ms Young notes you have little insight into your offending. You have distorted views which justify and normalise your offending. This situation is
exacerbated by the fact that your partner and a sister allege the victims of your offending are inventing complaints for financial benefit and so your partner and that sister may fail to protect those family members most at risk from your offending. Risk of offending against family members remains high in these circumstances.
[55] One factor which Ms Young notes in relation to your risk to the wider community is that you have not actively sought out children who are either unrelated to you or whom you do not already know. All of your victims in this offending are family members; the 2005 offence involved a child you knew. This suggests your risk to the wider community is lower than your risk to your extended family.
Likelihood of committing another qualifying sexual offence
[56] I now consider the likelihood that you will commit a qualifying sexual offence as at the date of your release on the expiry of the determinate sentence of 13 years, nine months’ imprisonment. Section 87(4) of the Act sets out a range of considerations that I must take into account:
(a)any pattern of serious offending disclosed by the offender’s history;
(b)the seriousness of the harm to the community caused by the offending;
(c)information indicating a tendency to commit serious offences in future;
(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.
Pattern of serious offending
[57] The Crown makes no submission on the rest of your offending history and Mr Gurnick says it is not a relevant feature of your pattern of offending. I agree and have placed limited weight on it. My primary focus is your sexual offending. Mr Gurnick accepts that a finding of a pattern of serious offending is open to the Court.
[58] The facts I set out earlier establish a pattern of serious offending disclosed by your history. Your offending against vulnerable members of your whānau was extensive and occurred over a long period of time. You have also been convicted for lower level sexual offending against another girl (kissing the daughter of a neighbour). The offending was outside your immediate whānau, although only to a limited degree. She was a young girl known to you. You offend most seriously against young female members of your whānau, your offending is of the most serious kind and you use threats and coercion to obtain compliance and to avoid detection.
[59]There is a pattern of serious offending disclosed by your history.
Seriousness of harm to the community
[60] You have admitted the most serious kind of sexual offending against vulnerable young children who were, at times, under your care. The extent of the harm caused is likewise very serious. That is evident from the victim impact statements filed by the Crown from three of your victims. They speak of the profound effect of your offending on them so early in their lives and the struggles they faced as they grew up in coming to terms with what had happened to them.
[61] Mr Gurnick submits you do not offend against children generally but against the members of your own whānau. This is a relevant consideration in exercising the discretion to impose a sentence of preventive detention. However, that does not, in my view, go to the seriousness of the harm to the community, which includes your family members. That members of your whānau are the victims of your offending, and that they have suffered ongoing and serious trauma as a result, does not reduce the seriousness of harm to the community. Having said that, I accept that you did not actively seek out victims in the wider community.
Tendency to commit serious offences in the future
[62] As well as the reports of the two health assessors, the Court also has the assistance of a pre-sentence report dated 6 April 2020. The writer of that report assesses you as being at high risk of reoffending and of harm to others, specifically to females who are familiar to you under the age of 12 years.
[63] While Dr Hansby notes the ability to estimate the probability of sexual recidivism in a specific individual is limited, and observing that your denial of much of the offending makes it difficult to explore the intrinsic facts that influence your risk profile, Dr Hansby does observe:
While it is difficult to judge sexual deviance based on his own account, his chronic pattern of offending suggests a non-exclusive sexual preference for young females. Whether this is linked to his early abuse and sexual experiences is difficult to assess. His denial of the offending highlights his lack of awareness. Furthermore, some of his minimisation appears to reflect underlying attitudes that condone sexual violence.
[64] Dr Hansby further observes (as I have already noted) that until you can acknowledge and explore your offending behaviour, it will be difficult to create a robust risk mitigation strategy, let alone address underlying offending attitudes.
[65]Ms Young says:
In my opinion, without adequate treatment, it is highly likely that [Mr T] will continue to have a tendency to commit further serious sexual offences, particularly against younger female members of his own wider whanau of origin, or other whanau he may engage with in the future, particularly if the parents of these whanau members are not aware of his significant history of sexual offending, and allow him to take on any role as a carer or babysitter for female children, or even be unsupervised with female children for periods of time.
I consider this behaviour is likely to continue in the future because it has already occurred intermittently for 33 years, and has involved a number of victims over three generations of his whanau.
[66] The content of the two reports and the opinions expressed by the health assessors provide sufficient evidence to satisfy me that you are likely to commit another qualifying sexual offence at the sentence expiry date.42 Your history of offending against vulnerable young members of your immediate and extended whānau over many years, your denial of your offending, and your efforts to justify or normalise your offending all point to a high likelihood of further relevant offending.
[67] Moreover, although there were gaps in your offending and there has been a period of several years since your most recent disclosed offending in August 2013,
42 Sentencing Act 2002, s 87(2)(c).
your sexual offending against children has been consistent over time and you have used threats and coercion to avoid detection in the offending to which you have pleaded guilty. Nor has there been any intervention, such as a treatment programme for sex offenders, which might otherwise explain the lack of offending. The passing of time is one possible explanation but it is generally associated with offenders who are older than you were at the relevant times. Despite Mr Gurnick’s helpful submissions on this point, I can place limited weight on periods without offending in consequence.
[68] I do not overlook Mr Gurnick’s submission that any risk, if it does exist, will be decreased by virtue of your advancement in age. He notes that you are now 54 years old and you will be almost 68 at the sentence expiry date. Mr Gurnick refers to research findings that demonstrate that the general trend is that only a small group of sex offenders continue to reoffend over the age of 60.43 He notes that neither Ms Young nor Dr Hansby grapple in any detail with this issue of an offender’s increasing age.
[69] However, as against that matter there are all the factors I have referred to above which satisfy me of the risk. In particular, this is a case where your offending has spanned a number of decades, albeit with periods where there were no reported offences.
Addressing the causes of your offending
[70] You will struggle to address the causes of your offending while you continue to deny it occurred or attempt to normalise it. On the other hand, it does appear you have had no opportunity to address your offending. You say you are open to participating in a rehabilitation programme for sexual offenders and that is a very good sign. On the reports and submissions made to me, it will be the start of a very long journey for you. But you will be taking steps in the right direction.
43 See discussion in Ferguson v R [2011] NZCA 445 at [6]-[8] – a discussion in the context of a challenge to an extended supervision order.
Preference for lengthy determinate sentence
[71] Finally, I have to consider the principle that a lengthy finite sentence is preferable if this provides adequate protection for society. In my view, this is really the critical factor. Up to this point everything indicates the need for a sentence of preventive detention.
[72] Ms Young concluded a sentence of preventive detention was necessary for the protection of the community. Dr Hansby, as I have already noted, expressed a qualified opinion saying that determining your risk was challenging given your patterns of offending and denial of the offending. He indicated your risk could be managed effectively through conditions and intensive supervision. These could include removing opportunities for unsupervised access to vulnerable young females and abstinence from alcohol and drugs.
[73] As I have already determined, the evidence does indicate you are at risk of committing serious sexual offences at the expiry date of the determinate sentence. Your denials do cause me concern but you have also indicated a willingness to participate in a treatment programme. I do have some reservations about the prospects of your successful engagement when, after pleading guilty, you have denied the offending against three of the four victims. Despite that reservation, I am prepared to give you the opportunity to participate in a treatment programme which will assist you in recognising both the causes of your offending and the harm which follows from it. If successful, that will reduce your risk of further serious offending.
[74] This case is finely balanced but I take into account there is the ability for the Department of Corrections to apply for an extended supervision order (ESO), which is a relevant consideration under this factor.44 As the Court of Appeal stated in Grant v R:45
… the availability of an ESO might tip the scales against the sentence of preventive detention. While not relieving a sentencing Judge from the decision whether or not to impose preventive detention, an ESO has the advantage that, in a finely balanced case, it allows risk assessment to be made at the time a prisoner is to be released rather than pre-sentence.
44 R v Parahi [2005] 3 NZLR 356 (CA); Grant v R [2017] NZCA 614 at [50]-[53].
45 Grant v R, above n 44, at [52].
(citation omitted)
[75] These comments are applicable in your case. I am satisfied that a finite sentence, coupled with a treatment programme, will provide the opportunity for you to address your tendency towards sexual offending against children in your whānau. A risk assessment may then be made at the time you are to be released and, if necessary, an ESO with intensive supervision can be imposed at that time.
[76] I am therefore satisfied that the lengthy determinate sentence I have calculated will provide adequate protection for society.
Result
[77]Mr T, would you please stand.
[78] I sentence you to 13 years, nine months’ imprisonment on the lead charges of sexual violation by unlawful sexual connection (against Victim O). You will be required to serve a minimum term of two-thirds of that sentence, that is nine years and two months’ imprisonment before being eligible for parole.
[79]I sentence you on the remaining charges as follows:
(a)For the three charges of rape (one is representative): 10 years’ imprisonment;
(b)For the remaining two charges of sexual violation by unlawful sexual connection: nine years’ imprisonment;
(c)For the charge of abduction for the purposes of sexual connection: seven years’ imprisonment.
(d)For the three charges of indecency with a girl under 12 (two are representative): six years’ imprisonment;
(e)For the charge of sexual conduct with a child under 12: six years’ imprisonment;
(f)For the six charges of indecency with a girl between 12 and 16 (four are representative): four years’ imprisonment; and
(g)For the charge of assault with intent to commit sexual violation: two years’ imprisonment;46
[80] Those sentences are all to be served concurrently with each other and to be served concurrently with the sentence on the lead charge of sexual violation by rape.
[81]Stand down please, Mr T.
Gordon J
46 Crimes Act 1961, s 129(2): maximum penalty of 10 years’ imprisonment.