R v Tahuriorangi HC Hamilton CRI 2010-019-6286

[2011] NZHC 946

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-019-6286

THE QUEEN

v

JACOB TAHURIORANGI

Hearing:         22 August 2011

Counsel:         R B Annandale for Crown

B J Hesketh for Prisoner

Judgment:      22 August 2011

Sentence imposed:     Indecent assault (x1)

Preventive detention within a minimum period of 5 years

Breach of extended supervision order (x2)

Convicted and discharged

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 19173, Hamilton
Counsel:

B J Hesketh, PO Box 19328, Hamilton

R V TAHURIORANGI HC HAM CRI 2010-019-6286 22 August 2011

Introduction

[1]      Jacob Tahuriorangi, you appear before the Court for sentence on one charge of doing an indecent act and two of breaching conditions of an extended supervision order.  The charge of doing an indecent act carries a maximum penalty of 7 years imprisonment.  The breach of conditions of an extended supervision order, carry a maximum penalty of 2 years imprisonment in respect of each.

[2]      The offending in issue occurred in July 2010.  Following the entry of guilty pleas, the District Court declined jurisdiction to sentence you because the Crown wished  to  seek  imposition  of  the  indefinite  sentence  of  preventive  detention. Because that sentence can only be imposed by the High Court, your sentencing was transferred here.

[3]      In order to determine the appropriate sentence, I have read four reports from health  professionals,  as  well  as  a pre-sentence  report.   The reports  from  health professionals are required so that in considering whether to impose preventive detention, I have as much information as possible about you and the risks that any continuing offending may cause to members of the community.

[4]      I will not be referring to the reports in detail.  I record them as being:

(a)       A psychiatric  report  from  Dr  Kumar,  a  consultant  psychiatrist  at

Health Waikato, dated 11 August 2010,

(b)A psychological report, dated 8 October 2010, by Mr Lascelles, a registered clinical psychologist,

(c)       A psychiatric report from Dr Majeed of Health Waikato, dated 19

November 2010, and

(d)A psychiatric report prepared by Dr Dean, a consultant psychiatrist, dated 10 April 2011.

[5]      Dr Kumar’s report was prepared on the request of a District Court Judge for the  purpose  of  determining  the  type  and  length  of  any  sentence  that  might  be required, after you pleaded guilty to the indecent assault charge.  The reports from Mr Lascelles and Dr Majeed were ordered when the sentence of preventive detention was sought.  Dr Dean’s report was obtained by your counsel, Mr Hesketh.

[6]      Dr Dean’s focus is a little different in that he gives more information about your personal circumstances at the time of the offending in issue.   I have found Dr Dean’s report helpful.  It has given me an opportunity to contrast more general aspects of risk assessment with those to which he specifically refers.

Summary of facts

[7]      I now outline the circumstances in which the charges arose.

[8]      On 23 August 2007, you became subject to an extended supervision order imposed by the District Court at Rotorua.  The term of the order was 10 years.  Two special conditions were imposed: first, that you not possess or consume alcohol and second, not associate or have contact with children or young people under the age of

16 years unless under the direct supervision of an informed adult approved by the probation officer.   The extended supervision order does not expire until 7 January

2018.

[9]      At approximately 5.00pm on 29 July 2010, the victim was walking along Boundary Road, Hamilton with her dogs, heading towards the intersection at Five Cross Roads.  She was a 13 year old female staying with her grandmother for the school holidays.

[10]     You were walking in the opposite direction heading towards the intersection with Heaphy Terrace.  At that stage you were intoxicated.  That was contrary to one of the conditions of the extended supervision order.

[11]     As the victim went past you, you commented that she had “beautiful dogs”. You then told the victim that she was “beautiful like her dogs”.

[12]     You then placed your hand on her hip and pulled her closer to you.   You moved your hand and placed it on her stomach, telling her to breathe in and out so that you could feel her abdominal muscles.

[13]     You continued to run your hand up and down the front of her body for a period of time, although your hand remained on the outside of the victim’s clothing.

[14]     After a little time passed, you leant forward and kissed the victim on the lips. She attempted to pull away but you were holding her by the hips with your hand. That prevented her from moving away immediately.

[15]     The victim managed to pull away from you and began to cry.  She walked away and obtained the assistance of a resident on Boundary Road.  That person took her back to her grandmother’s home. You continued walking down Boundary Road.

[16]     Police  were  called.     You  were  located  a  short  distance  away,  at  the intersection of Boundary Road and Heaphy Terrace.

[17]     When spoken to by the police, you stated that you had approached the victim as you were “attracted” to her dogs.  You admitted that you had asked the victim if you could cuddle her. You stated that you had cuddled the victim but that she had let you do so.

[18]     At the time of the offending you were aged 60 years.

[19]     The aggravating factors relating to that offending are the initiation of contact with a young girl contrary to the terms of the extended supervision order which was in place to protect members of the community such as her from you.   Another aggravating factor was the skin-to-skin contact that took place.

[20]     There  are  suggestions  in  the  health  assessors  reports  that  even  when interviewed by them, you were attempting to minimise the nature of the sexual contact.  Two (Dr Kumar and Mr Lascelles) report that you became angry or agitated when questioned about the propriety of what you had done.

Submissions

[21]     The  issue  that  I  have  to  determine  today  revolves  around  the  risk  of continuing offending by you and what is required to protect members of the public from the risk that offending of that type will reoccur.

[22]     Mr Annandale, for the Crown, has made it clear that the Crown does not see the community as being adequately protected unless you are made subject to an indefinite order for imprisonment with the ability to have you released only if you were to satisfy parole authorities that you could be trusted in the community on terms that would enable risk of reoffending to be managed.

[23]    Mr Hesketh, on your behalf, has emphasised eloquently the unfortunate circumstances in which you were placed at a location with no family or friends to support you.

[24]     There is no doubt that that played a role in what happened.   Nevertheless, there are, on this occasion, two breaches of the supervision order that I have to take into account.  The real issue is whether, as I discussed with Mr Hesketh, you have reached the point at which it is necessary for an order for preventive detention to be made in order to protect the community adequately.

Analysis

[25]     The purpose of the sentence of preventive detention is indeed to protect the community from those who pose a significant and ongoing risk to the safety of its members.1  An extended supervision order serves a similar purpose.  It is designed to manage risks of reoffending while the prior offender remains within the community. The intention of such an order is to ensure that the offender can remain in the community but that the risk of any similar incidents happening in the future can be

minimised.

1 Sentencing Act 2002, s 87(1).

[26]     At the time when the extended supervision order was made in August 2007, you had eight prior convictions for sexual offences.   There was one of indecent assault on a female for which you were convicted in August 1983.   Another conviction was entered for indecent assault on a female arising out of an event, also in 1983.   Three convictions were entered for unlawful sexual connection with a female under 12 and two of indecent assault on a female under 12, all of which you were convicted on 23 June 1994.  There was a further charge of indecent assault on which you were convicted on 3 November 2006.  It was that offending that led to the application for the extended supervision order once the District Court Judge imposed a short sentence to reflect what was regarded as low level offending.

[27]     When making an extended supervision order2  a Judge is required to have regard to the nature and likelihood of future sexual offending, including the age and sex of potential victims, the ability of the offender to control his sexual urges, any predilection and proclivity for sexual offending, any acceptance of responsibility and remorse for past offending and any other relevant factors.

[28]     When the extended supervision order was sought, you accepted that such an order was necessary.  The debate was over the term of the order.  The minimum term is 5 years, the maximum 10.  The Department of Corrections sought the maximum available.  The application was heard by Judge Weir,3 who had before him a detailed report prepared by a clinical psychologist, Ms Thakker.  That report set out extensive background to the earlier offending.  It recorded that, in addition to the offending to which I have already referred, you had tens of previous convictions going back as far as 1964.

[29]     In  relation  to  the  sexual  offending,  you  had  completed  Te  Piriti  sexual offenders programme, over 40 weeks in 1996.  Nevertheless, further offending had

occurred.

2 Parole Act 2002, s 107F(2).

3 Department of Corrections v Tahuriorangi DC Rotorua CRI-2007-063-741, 23 August 2007 (Judge

Weir).

[30]     With reference to what had been said by the clinical psychologist, Judge Weir noted4  that there was an absence of positive significant social influences on you. The psychologist identified what she called “intimacy deficits”.   The psychologist regarded your behaviour as “self-serving”, with little regard for the needs of others. She identified a lack of remorse for your earlier offending and a limited ability to control sexual feelings and impulses.  A tendency to target female victims in the age

range of 9-15 years was identified, even though that was qualified by reference to persons who were known to you.

[31]     The psychologist concluded that your past behaviour suggested an “ingrained

predilection for sexual interaction with juvenile females”.

[32]     The Judge was satisfied that you continued to pose a significant level of risk of reoffending and imposed the maximum period for supervision of 10 years.  The offending in July 2010, occurred just under three years after the date on which the extended supervision order was made.  That is concerning, especially as it is well recognised  that  one  of  the  reasons  for  not  imposing  a  sentence  of  preventive detention is the possibility of managing any risks through an extended supervision order.  The fact that you had breached such an order tells in favour of a sentence of preventive detention.  In this context, as in many others, past behaviour is the best predictor of future behaviour.

[33]     In  determining whether  to  impose preventive detention,  I must  consider5 whether any pattern of serious offending is disclosed by your criminal history, the seriousness of harm caused by your offending, any tendency on your part to commit serious offences in the future and any efforts or lack of them made to address the causes of your offending. The final principle is that a lengthy determinative sentence is regarded as preferable, provided adequate protection for society is available.

[34]     If a finite term of imprisonment could address relevant risks, such a sentence would be preferable to preventive detention.

4 Ibid, at paras [6] and [7].

5 Sentencing Act 2002, s 87(4).

[35]     The lead offence of indecent assault carries with it a maximum penalty of 7 years imprisonment.  However, the nature of the particular offending places it at the lower level of offending of that type.  A starting point in excess of 3 years could not legitimately be chosen.  An uplift for prior offending of about 12 months would be justifiable.   Nevertheless, a final sentence would unlikely be more than 3 years imprisonment, given the need for credit for an early guilty plea.

[36]     As at today’s date you have already completed just over one year on remand. A minimum non-parole period of two-thirds would see you eligible for release on parole after serving two years of such a sentence, one of which has already passed.

[37]     The report writers continue to assess you as a high risk of offending. Alcohol abuse, an inability to control sexual arousal and isolation from support networks such as family and friends, appear to have contributed primarily to this particular offending.   Despite being well aware of the extended supervision order and the reasons for its imposition, you were willing to breach its terms by consuming alcohol on the day in question, becoming intoxicated and associating with a young female without supervision by an approved adult, leading to the offence that occurred.

[38]     One of the factors that should be taken into account in determining whether preventive detention ought to be ordered is the possibility of managing risk through an extended supervision order.6     In this case that option is effectively foreclosed because of your deliberate breaches of the existing order and the sexual offending that followed your contact with the young female victim.

[39]     As you will have heard me say to the lawyers, I have considerable sympathy for you in one respect.  It seems clear that you were released into the community to a place where you had no support network, a place where you were unable to find work or other means of occupying your time.  While I understand the constraints on those responsible for such placements, and my comments are not intended to reflect adverse criticism upon them, their inability to place you in a suitable social setting

no doubt contributed to this offending.   The difficulty is that I have nothing to

6 See R v Parahi [2005] 3 NZLR 356 (CA).

compare how you would reacted with what actually happened, in assessing the risk of reoffending in the future.

[40]     Turning to the specific factors I must consider, there is a pattern of offending involving indecencies on young girls. That has been established over about 30 years. The general age group of your victims is the vulnerable ages of 9-15 years.  While most  of  the  offending  has  comprised  indecent  assaults  at  the lower  end  of  the spectrum of seriousness, there are other incidents, notably the sexual violation ones, that were much more serious.   It is impossible to measure the level of emotional harm that can be caused to a young girl by offending of this type.  Your offending has clearly caused harm to your victims over the years and this particular victim.

[41]     On the basis of the reports, I consider that you do have a tendency to commit serious offences such as this in the future.  Not only do the existing reports suggest that, but the report made available to Judge Weir when the extended supervision order was made also supports that view.  I agree with the report writers that you are at high risk of reoffending.

[42]     While you now appear to have a better appreciation of the impact of your offending, it seems that the particular social environment into which you were released has rendered it more difficult for you to control your predilection for offending of this nature.  Having said that, I retain concerns about your attempts on this occasion to minimise the level of the offending.   Even though you withdrew your request for a disputed fact hearing, the fact that you advanced a proposition that minimal contact occurred demonstrates little empathy for the victim.

[43]     If a finite sentence were able to protect the public from your offending, I would have preferred to impose such a sentence.  However, given the length of any sentence  that  could  legitimately  be  imposed  on  the  indecent  assault  charge,  I consider it is insufficient to achieve that goal.   I am driven to the conclusion that, protection of the public being the paramount factor in a sentencing exercise of this type, preventive detention is necessary to manage future risks.

[44]     Having said that, I am not prepared to impose a minimum term of more than five  years.   You  have  the opportunity to  address  the remaining  causes  of  your offending and arrangements can then be made for your release into the community, if the Parole Board is satisfied that you can be released in circumstances that will not cause an inappropriate level of risk to young girls.  That, ultimately, will be for the Parole Board to consider.

Sentence

[45]     Mr Tahuriorangi, please stand.

[46]     On the charge of indecent assault, you are sentenced to preventive detention, with a minimum period of 5 years.   On the charges of breach of the extended supervision order, you are convicted and discharged.

[47]     Stand down please.

P R Heath J