R v Tepania
[2021] NZHC 2015
•5 August 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-090-2575
[2021] NZHC 2015
THE QUEEN v
MAAKA JUNIOR TEPANIA
Hearing: 5 August 2021 Appearances:
E A M Mok for Crown
C L Sigamoney for Defendant
Judgment:
5 August 2021
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Auckland
R v TEPANIA [2021] NZHC 2015 [5 August 2021]
[1] Mr Tepania, you appear for sentence having pleaded guilty to one charge of indecent assault for which the maximum penalty is seven years imprisonment.1 You would ordinarily have been sentenced in the District Court, but a the District Court transferred the proceeding to this Court for sentence because the Crown raised the likelihood that it would seek a sentence of preventive detention. The issue I must decide today is whether you should receive a finite sentence or the indeterminate sentence of preventive detention.
Background
[2] You are to be sentenced on the basis of an agreed summary of facts. This records that on the afternoon of 7 June 2019 you were at a large supermarket in West Auckland. The female complainant, who was not known to you, was also shopping at the supermarket. You began to follow her around the supermarket, but she was initially unaware of your presence.
[3] While the complainant was near the bulk food section, you approached her and stood behind her. As she began to move away from the area you reached out with your hand, but the complainant had already begun moving away.
[4] The complainant then went to an area of the supermarket in which frozen meat was being stored in a freezer. You approached her and stood approximately one metre away. Whilst the complainant was selecting meat from the freezer you approached her and you said, “You don’t want the bone”. The complainant replied I guess not” before walking away towards another freezer. You followed her to that area and then followed her to another area of the store. On this occasion the complainant stopped at the fresh meat section. Whilst she was inspecting some meat you touched her on the left buttock with your hand. She turned around and saw you standing behind her. She then walked away without saying anything, but you continued to follow her. She then called out to her husband, but you continued to follow her to another area of the store. When she saw that you had followed her, the complainant asked to speak to a store manager. She told the store manager what had happened and asked for security to be called. As the manager and complainant walked towards another section of the
1 Crimes Act 1961, s 135.
supermarket you continued to follow them. The incident ended when security staff spoke to you and the police were called. You denied you had deliberately touched the complainant and said that it was an accident and that you had “bumped into her”.
Finite sentence
[5] There is no tariff or guideline judgment of the Court of Appeal for the charge of indecent assault. This is because that offence can be committed in so many different ways. In the present case the aggravating feature of the offending was the fact that you approached an unknown stranger, made unwelcome suggestions to her and then touched her on the buttock with your hand. You showed a degree of persistence in continuing to follow her around the store as the incident unfolded.
[6] The Court of Appeal has noted that, for one-off offences of indecent assault, an appropriate starting point will be somewhere between six months and two years imprisonment.2 I agree with the Crown that your offending would ordinarily attract a starting point of nine months imprisonment. This reflects in part the effect of the offending on the victim. She has told the police she would never return to the same supermarket and justifiably states that she ought to have been able to feel safe in a public place such as a supermarket. Your offending has had ongoing emotional effects for her, including in particular her sense of insecurity in her day to day life.
[7] You have numerous previous convictions for similar offending and have served different forms of sentence for these. I will discuss these in greater detail shortly, but I would ordinarily add an uplift of three months to reflect your previous convictions. I would then reduce the sentence by two months to reflect your guilty plea. This would result in a sentence of ten months imprisonment. Given that this is a “second strike” offence you would be required to serve the whole of that sentence in full.
2 R v Hohia, above n 1.
Preventive detention
[8] A sentence of preventive detention may be imposed where the Court is satisfied that the defendant is likely to commit another qualifying or violent offence upon release after serving any sentence the Court may impose.
[9] In deciding whether or not to impose a sentence of preventive detention, the Court is required to take into account five factors set out in s 87(4) of the Sentencing Act 2002. Having considered those factors, the Court must stand back and determine the manner in which it should exercise its discretion, either in favour of a finite sentence of imprisonment or the sentence of preventive detention. The underlying concern the Court is required to address is whether the defendant is likely to remain an ongoing risk to the safety of the community that can only be met by the imposition of a sentence of preventive detention. The sentence is not, however, one of last resort. It is not a sentence that can only be imposed after other sentencing options have been tried without success.
[10]The issues I am required to take into account are as follows:
·Any pattern of serious offending disclosed by the offender’s history;
·The seriousness of the harm to the community caused by the offending;
·Information indicating a tendency to commit serious offences in the future;
·The absence of, or failure, of efforts by the offender to address the cause or causes of the offending; and
·The principle that a lengthy finite sentence is preferable if this provides adequate protection for the community.
Any pattern of serious offending disclosed by the offender’s history
[11] You have an extensive history of offending involving unlawful sexual activity and violence. This began in March 1989 when you were convicted of attempted sexual violation and sentenced to non-residential periodic detention and supervision. Thereafter, your sentencing history reads as follows:
·January 1991 – sentenced to three months imprisonment on a charge of doing an indecent act
·June 1992 – sentenced to non-residential periodic detention and supervision on a charge of indecent assault
·February 1996 – ordered to attend a non-residential community programme on a charge of indecent assault
·July 1996 – ordered to attend a non-residential community programme on a charge of indecent assault. This related to an incident in which you approached the victim at a local market, lifted her dress and placed your hand on her thigh.
·October 1997 – sentenced to 12 years imprisonment on three charges of rape, two charges of unlawful sexual connection and three charges of indecent assault as well as offending involving violence. This related to the rape of your then partner over a four day period whilst you were on bail for other offending. The indecency charges related to two separate incidents in November and December 1996 when you touched the buttocks of a woman unknown to you at a supermarket and then touched the buttocks and breast of another woman at the same supermarket. The latter occurred whilst you were on bail for the former.
·December 2005 – sentenced to one year nine months imprisonment on a charge of doing an indecent act. This occurred when you followed the 15 year old victim who was unknown to you around a public library. You brushed your body against the victim’s buttocks and then groped
your own crotch. You then moved your hand towards the victim’s thighs and continued following her around the library for at least 15 minutes.
·April 2010 – sentenced to eight months imprisonment on a charge of doing an indecent act. On this occasion the 22 year old female victim was shopping in a department store. She bent down to look at products on a low shelf. You knelt down beside her, removed a mirror from your pocket and positioned it under her dress. You removed the mirror and walked off when the victim stood up.
·November 2013 – sentenced to six months imprisonment on a charge of doing an indecent act. The victim in this offending was an employee of a retail store. Whilst she was restocking shelves in the store you crouched behind her. When she attempted to move away, she felt something touch her leg. The victim turned around and saw you standing directly behind her, holding a small mirror in your hand.
[12] The last time you were before the Court was in September 2014. On that occasion you appeared for sentence on a charge of indecent assault on a child under 12 years of age. This resulted in a sentence of two years five months imprisonment with a non-parole period of one year and six months. This offending occurred when you followed the 11 year old female victim into a retail store. You then stroked her arm, told her she was a beautiful young girl and began gripping her dress. After asking the victim what material her dress was made of you began touching her legs. You then followed the victim and stroked her buttocks on the outside of her clothing. This offending resulted in a “first strike” warning and registration on the Child Sex Offender Register.
[13] Putting aside the serious offending against your then partner in October 1997 the remainder of your offending demonstrates a clear pattern of approaching females who were strangers in retail stores and supermarkets. None of the victims are known to you. You then touch the victims on the outside of their clothing or use mirrors to
look up their dresses. On some occasions, as here, you make sexually suggestive comments to them.
The seriousness of the harm to the community caused by the offending
[14] Offending such as this may be described as low level in the sense that it involves the touching of the breasts and buttocks of the victims on the outside of their clothing. It does not progress to more serious forms of sexual assault. However, as the victim impact statement in the present case demonstrates, it is offending that causes serious harm to the community because it results in females feeling unsafe in public places where they ought to feel secure. Ripples from offending such as this travel widely and result in the victims and those who they may tell about the offending feeling cautious in public places such as retail stores and supermarkets when they should not need to do so. In essence, it contributes to the destruction of the fabric of trust that members of the community rely on when going about their business in public places.
Information indicating a tendency to commit serious offences in the future
[15] I have the benefit of two reports prepared by health assessors who have been asked to provide assistance to the Court regarding the likelihood of you offending again in a similar way in the future. Dr Tenyha, a registered clinical psychologist, notes that you have exhibited a proclivity and predilection for sexual offending against female victims. You have now offended against more than 16 victims, some of whom have been as young as 11 years of age. She notes that your offending has now spanned more than 30 years and has been maintained by your sexual preoccupation, sexual compulsion and poor self-regulation including alcohol and substance abuse. Dr Tenyha considers you are at high risk of engaging in a qualifying sexual offence in the future. This is likely to take the form of an indecent assault of a female of any age, whom you deem to be attractive, in a public area. She says you have also exhibited a decline in cognitive function due to substance abuse, your anti-social lifestyle and medication that you have been taking. She says this is likely to make your behaviour difficult to change in the future. She is therefore of the opinion that you will continue to be vulnerable to relapse in the future and that you will need lifelong support from
the authorities in the form of either incarceration or supervision whilst subject to parole conditions. She recommends the Court considers an indeterminate sentence.
[16] The report by Dr Jacques, a forensic psychiatrist, points out that although your offending is persistent, it can nevertheless be seen to have reduced in seriousness over the years. However, Dr Jacques acknowledges that your offending has the potential for longer term community harm because you have continued to offend impulsively against victims who are not known to you. Dr Jacques notes that you have multiple risk factors for future sexual violence. He also notes that you have engaged in repeated offending within a short time of release from prison. Taking these factors into consideration, and in particular the chronicity and diversity of your sexual offending, your problems with impulse control, substance abuse and supervision failure, Dr Jacques believes that the future risk of sexual offending and committing a future qualifying offence is high. Future victims are most likely to be either adult women or girls who may or may not be known to you. He notes that you say you are willing to engage in treatment but that you have limited self-awareness and insight into your difficulties and have reoffended in the past despite undertaking treatment.
The absence of, or failure of, efforts by the offender to address the cause or causes of the offending
[17] You have already engaged in several rehabilitative programmes. These include an adult sex offender programme in 2007 as well as substance abuse programmes between 2003 and 2004. In addition, you undertook counselling in prison between 2004 and 2005 although this did not continue following your release into the community. You say you are now motivated to address your offending, although I have no confidence you have the insight to understand what this will entail. The short point is that such efforts as you have made to date to address the causes of your offending plainly have not worked.
The principle that a lengthy determinate or finite sentence is preferable to a sentence of preventive detention
[18] This factor really speaks for itself but is of little application in the present case. For the reasons I have given you will only serve a sentence of ten months
imprisonment if a finite sentence was selected. That cannot be classified as a lengthy determinate sentence.
[19] This leads me to the penultimate aspect of the decision whether or not to impose a sentence of preventive detention. I consider the past to be a good guide in your case and this demonstrates that for a period of approximately 30 years you have taken opportunities to offend in public places against female victims who are not known to you. The repetitive nature of your offending suggests that the likely causes are deep-seated and will be difficult to address. Like both health assessors, I consider you are at high risk of reoffending in the future particularly if you do not undergo intensive treatment to address the causes of your offending. For reasons that I shall outline shortly I consider that prospect to be remote in your case.
[20] This leads me to the final issue, which is whether I should exercise my discretion in favour of a finite sentence or a sentence of preventive detention. In this context the protection of the community is paramount.
[21] You were last before this Court on 15 September 2014 when the Crown urged the presiding Judge to impose a sentence of preventive detention for similar offending as the present.3 Woolford J considered that the prospect that you would be subject to an extended supervision order upon release from prison would provide “significant protection for the community” as well disincentives to further offending by you.4 The Judge then concluded that a sentence of preventive detention was not appropriate for the following reasons:5
[70] I have had careful thought as to whether a finite sentence combined with a minimum period of imprisonment and an extended supervision order would be appropriate in your case, Mr Tepania. While preventive detention is not a sentence of last resort, its imposition remains a matter of discretion to be applied only when necessary to protect the community. When the index offending is an indecency, as opposed to a sexual violation, preventive detention is to be applied in only an exceptional case.
[71] In my view, Mr Tepania, you are right on the cusp of preventive detention. In the end I consider, however, that preventive detention is not the appropriate outcome in this case. The first and primary point is the low level
3 R v Tepania [2014] NZHC 2230.
4 At [69].
5 R v Tepania, above n 3.
nature of your index offending. The Court of Appeal has directly specified that this type of offending should not normally attract the most severe sentence that can be imposed. There must always be a concern to ensure proportionality in sentencing, and even when taking your past history into account, I consider it would be disproportionate to sentence you to an indefinite term of imprisonment when compared to the normal range for this type of offending.
[72] Second, is the trend in your offending. It has become less serious and less frequent over time, in my view. As noted previously, I place weight on the hiatus in your offending between 2010 and 2013. I consider that on release you will have sufficient support from Ms Eavestaff and your siblings in order to reintegrate into the community.
[73] Third, and most importantly, I consider that the real possibility of an ESO order and the protection that order would provide to the public tips the balance against preventive detention. An ESO is likely appropriate in your case, and would be sufficient in my view to alleviate concerns as to public safety.
(footnotes omitted)
[22] On 8 June 2016 Mander J made an extended supervision order to last for ten years.6 He concluded that you have a pervasive pattern of serious sexual offending and remained at high risk of committing a relevant sexual offence in the future.7 Sadly, the protection offered by the extended supervision order has not been sufficient for you to refrain from continuing to offend in the way that has now become a pervasive pattern.
[23] You undoubtedly remain on the brink of a sentence of preventive detention. Several factors persuade me, however, that I should not impose that sentence today, and that a sentence of home detention to be served at Manaaki House is a viable alternative. First, your offending has not increased in seriousness. Had that not been the case I would have had no option but to impose a sentence of preventive detention. There would have been no other way in which to adequately protect the community from further offending by you.
[24] Secondly, you have not offended during the lengthy period you have been on EM bail at Manaaki House. This is largely due to the significant efforts that facility and the Department of Corrections have made to monitor and supervise your daily
6 Chief Executive of Department of Corrections v Tepania [2016] NZHC 1215.
7 At [34]-35].
activities. It suggests that, provided you have close oversight and supervision, you can refrain from offending.
[25] Thirdly, although you undoubtedly remain at high risk of reoffending in a similar way in the future, I consider that risk can be adequately met at least over the next two years by close monitoring and supervision. This will undoubtedly occur whilst you are serving a sentence of home detention at Manaaki House. The real issue is what happens once you have served your sentence.
[26] Plainly the current extended supervision order has not been sufficient to defer you from further offending. The greatest risk of further offending is likely to be when you leave your address and visit places such as shops and supermarkets where you will encounter potential victims. Close supervision during such outings is essential if the risk of further offending is to be managed.
[27] I have been assisted by very helpful advice from Corrections regarding the steps it can reasonably take to manage your risk in the future. It points out that the Parole Board may only impose full residential conditions during the first 12 months of any extended supervision order. The ability of the Board to impose such conditions following the making of the present extended supervision order therefore expired on 8 June 2017. It is also not now possible to apply for an intensive monitoring condition because such a condition may only be imposed when an extended supervision order is made. Such a condition may also only be imposed for a period of no more than 12 months.
[28] However, the Chief Executive of Corrections has the power to apply for a further extended supervision order at any time before the expiry of an existing order. This means it would be open to the Chief Executive to apply for a further extended supervision order before you complete any sentence of home detention. Such an application could be justified on the basis that the current offending amounts to a change of circumstances justifying a review of the terms of the existing extended supervision order.
[29] If a new extended supervision order was made the Court may require the Board to impose an intensive monitoring condition. This would enable the Board to ensure you are monitored when you go out into the community where you will be at most risk of further offending. The Board would also be free at that point to impose full residential conditions under s 107K(1)(3)(b) of the Parole Act 2002. Both conditions would provide protection for a period of 12 months after you complete any sentence of home detention. Thereafter, however, I accept that those conditions would lapse. The risk of further offending would then depend on the extent to which you are prepared to comply with the remaining conditions of the new extended supervision order.
[30] As Woolford J remarked when you last before the Court. proportionality is an important sentencing principle. Where possible, the courts should always endeavour to impose sentences proportionate to the culpability of the offending. This is a matter of concern in your case because I consider the deterioration in your cognitive ability is likely to prevent you from engaging in any form of meaningful treatment in the future. This means your risk profile is likely to remain very high. It follows that there is a very real risk that a sentence of preventive detention is likely to require you to remain in prison for the rest of your life. That outcome would obviously not be proportionate to the gravity of the present offending and is to be avoided if possible. You need to know, however, that any further offending of this type will inevitably remove the ability of the Court to impose any lesser sentence than preventive detention.
Sentence
[31] On the charge of indecent assault you are sentenced to 12months home detention. This is to be served at the facility where you have been living whilst on EM bail. The conditions on which you are to serve that sentence are those contained in the PAC report dated 3 August 2021.
Second strike warning
[32] After delivering these remarks counsel advised me that, although you were convicted in the District Court, no “second strike” warning was given as required. It is therefore now necessary for me to give you that warning.
[33] Given your conviction for indecent assault you are now subject to the “three strikes” law. This is now your final warning which will explain the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violent offences. The consequences are as follows:
1.If you are convicted of any serious violent offence, other than murder or manslaughter, then you will be sentenced to the maximum term of imprisonment for each offence. That will be served without parole or early release unless it would be manifestly unjust for that to occur.
2.If you are convicted of manslaughter committed after this warning, then you will be sentenced to imprisonment for life. The Judge must order you to serve at least 20 years imprisonment unless the Judge considers it would be manifestly unjust to do so, in which case the Judge must order you to serve a minimum term of at least ten years imprisonment.
3.If you are convicted of murder after this warning, then:
a.You must be sentenced to imprisonment for life. The Judge must order you to serve this sentence without parole unless it would be manifestly unjust to do so; and
b.If the Judge finds that it is manifestly unjust to do so, then the Judge must impose a minimum period of imprisonment of at least 20 years unless that would be manifestly unjust in which case the Judge must sentence you to a different minimum period of imprisonment.
4.If you are sentenced to preventive detention you must serve the maximum term of imprisonment of the most serious offence you are convicted of unless the Judge who sentences you considers that would be manifestly unjust.
[34]Stand down.
Lang J
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