R v Undersen
[2022] NZHC 141
•10 February 2022
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2020-070-001528
[2022] NZHC 141
THE QUEEN v
SHAD DAMIE UNDERSEN
Hearing: 10 February 2022 Appearances:
Ben Smith for the Crown (via AVL) Craig Horsley for the Defendant
Judgment:
10 February 2022
SENTENCING NOTES OF MOORE J
R v UNDERSEN [2022] NZHC 141 [10 February 2022]
Introduction
[1] Shad Undersen, at the age of 48, you appear today for sentence. In June last year, you were found guilty on 16 charges (by my calculation) following trial by jury in the Tauranga District Court. It seems you pleaded guilty to one charge of threatening to kill. The trial Judge, Judge T R Ingram, transferred your sentencing to this Court because the Crown had indicated it would be seeking a sentence of preventive detention. Only the High Court can impose such a sentence. That is why you are appearing in this Court today before me.
[2]The 17 charges you are to be sentenced on are:
(a)two charges of sexual violation by rape;1
(b)two charges of sexual violation by unlawful sexual connection;2
(c)two charges of kidnapping;3
(d)one charge of injuring with intent to cause grievous bodily harm;4
(e)two charges of injuring with intent to injure;5
(f)three charges of threatening to kill;6
(g)two charges of male assaults female;7 and
(h)three charges of attempting to pervert the course of justice.8
[3] This catalogue of charges reflects the truly horrific violence you inflicted on your victim, who was your partner at the time. What makes all this so much worse is
1 Crimes Act 1961, ss 128(1)(a) and 128B. Maximum penalty of 20 years’ imprisonment.
2 Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty of 20 years’ imprisonment.
3 Crimes Act 1961, s 209. Maximum penalty of 14 years’ imprisonment.
4 Crimes Act 1961, s 189(1). Maximum penalty of 10 years’ imprisonment.
5 Crimes Act 1961, s 189(2). Maximum penalty of five years’ imprisonment.
6 Crimes Act 1961, s 306. Maximum penalty of seven years’ imprisonment.
7 Crimes Act 1961, s 194(b). Maximum penalty of two years’ imprisonment.
8 Crimes Act 1961, s 117. Maximum penalty of seven years’ imprisonment.
that this is not the first time you have violently offended against an intimate partner. This is the third time. Despite receiving lengthy sentences of imprisonment, each time you have been released you have violently offended again. Unsurprisingly, given that background and history, the Crown now seeks a sentence of preventive detention. That is what we call an indeterminate sentence because it has no fixed end date. It means you would remain in prison until or if the authorities decide you are safe to be released into the community.
[4]I will approach your sentencing in two stages:
(a)first, I shall fix the finite sentence and any corresponding minimum period of imprisonment (“MPI”); and
(b)then I shall decide whether you should be subject to preventive detention and if so, the length of the MPI to accompany that sentence.
[5] If I decide against preventive detention, you will receive the finite sentence I determined at the first stage.
The offending
[6] I begin by summarising the facts of your offending. Obviously, they are well known to you. But because sentencing is a quintessentially judicial function and is required to be undertaken in public it is necessary for me to set out the factual basis for the sentence I fix. My task in setting out the facts has been materially assisted by Judge Ingram who set out his factual findings in a memorandum9 for sentencing purposes.
Threatening to kill
[7] At around 9:30 pm on 10 December 2018, your then partner arrived home and parked in the driveway. You went over and opened the car door. You shouted and threatened her. She got out of the car. You put her in a headlock. Eventually you let her go.
9 Dated 16 September 2021.
[8] She then got back into the car and locked the door. You threatened to kill her and her children if she did not open the door. She complied.
Male assaults female
[9] You then punched her several times in the head. She escaped. She ran into the house to call the Police.
[10] You fled. You successfully evaded the Police for several weeks. In the meantime she gave a detailed statement to the Police.
Attempting to pervert the course of justice
[11] On the evening of 23 December 2018, your partner went to sleep in her bedroom. You entered the house and room using a key that you had been given some time earlier. You began to argue about the statement she gave to the Police. You wanted her to withdraw it. She refused. You became angry and threatened her.
Kidnapping
[12] She tried to leave the room. You threw her onto the floor. You forced her to sleep on a mattress on the floor. Throughout the night, you actively prevented her from leaving.
Male assaults female
[13] When she tried to leave for a second time, you threw her to the floor with sufficient force to dislodge a front tooth.
Injuring with intent to injure
[14] You then hit her with a wooden rod. This broke her forearm and caused severe bruising to her shin, wrist, and thigh.
Threatening to kill
[15] You told her that you would knock her head off; to look away because you were going to hit her in the head and kill her; and that you would kill her with the wooden rod while she slept. You remained at the address overnight.
Attempting to pervert the course of justice
[16] On 14 January 2019, you returned to her home. Over the next few days, using threats, you pressured her to withdraw her statement. Eventually, on 17 January 2019, she succumbed. You drove her to the Citizen’s Advice Bureau (“the CAB”) for the purpose of making a written withdrawal of her previous statement.
[17] During this process you returned to the car to wait while she finished the statement. Unbeknownst to you, she courageously did not sign the withdrawing document.
Kidnapping
[18] When she emerged from the CAB offices, you made her get into the car. You went to a supermarket to buy alcohol. You also took her to the home of your estranged partner and children. She asked you to take her home. You refused.
[19] You began driving towards Pyes Pa. Your driving was erratic and dangerous. You were drinking alcohol, driving at high speeds and overtaking other vehicles.
Threatening to kill and injuring with intent to injure
[20] Throughout the journey you repeatedly threatened her. You told her that she was “gonna die here bitch” and “I knew you weren’t gonna retract it with the cops, that’s why you’re gonna die”.
[21] When you arrived at a remote rural property, the victim remained in the car. You grabbed a machete. You threatened her with it, telling her “I’m gonna kill you today”.
[22] You then dragged her from the car by her hair. She struggled. Her sarong fell off, leaving her standing in her underwear. You held the machete to her throat. You threatened to chop her head off. You told her to say her prayers because you were going to kill her. She asked you why. You told her it was because she refused to retract her statement.
[23] Desperate to calm you down and distract you, she removed her underwear. You threatened her with a pitchfork and rocks. You said that you would smash her head in. You then kicked her in the head.
[24] She attempted to escape by running out to the road. But you caught up to her in the car. You told her that she was “going to die today”.
Injuring with intent to cause grievous bodily harm
[25] You put her back in the car. You then pulled her back out by her hair. You took her to a caravan which was parked on the property. You tied a length of rope around her neck and led her around the property with it. You told her you were looking for a tree to hang her from. She was so terrified that she lost control of her bladder. You led her to a bank. She slipped down. You tightened the rope around her neck. She lost consciousness. You poured water over her and released the rope’s pressure. She regained consciousness. You took her back to the caravan.
Sexual violation by rape and unlawful sexual connection
[26] Inside the caravan you forced her to give you oral sex. Then you raped her. She submitted, out of fear for her life.
Sexual violation by rape and unlawful sexual connection
[27] After this, you sexually violated her. You inserted a bottle into her vagina. Then you raped her a second time.
[28]You then took her home.
Attempting to pervert the course of justice
[29] You were charged with this offending and remanded in custody. On 27 January 2020, you obtained the victim’s phone number. Two days later, you called her from prison. This caused her obvious distress. Later that day you rang her again, stating that you wanted to “make things right”. About half an hour later you rang again, repeating your claim that you wanted to “make things right”. You offered to send someone round to see her, give her money and purchase her a car. Later, on 24 March 2020, you rang her again.
Victim impact
[30] A victim impact statement was sought from the victim. But she was not prepared to engage in the sentencing process. That is understandable and unsurprising. There can be no doubt that your offending has affected her greatly.
Finite sentence
[31] As I mentioned earlier, before I move on to consider whether to order preventive detention, I must first fix what I consider to be the appropriate finite sentence. The first stage in setting a finite sentence is to fix a starting point.
What is the appropriate starting point for the offending?
[32] Both the Crown and your counsel agree that the correct approach is to set a starting point for each of the four incidents or phases of your offending, sum up those starting points, and adjust for totality.10
(a)First incident – 10 December 2018
[33] The first incident was when you threatened to kill the victim and punched her several times in the head. Your counsel and the Crown agree that this offending, when
10 In R v Clarke CA128/06, 6 June 2006 at [14] the Court of Appeal commented that “[c]umulative sentences for the acts of violence inflicted upon the victim were fully justified. Those who inflict serious violence upon females, whether partners or not, at different times and different places cannot expect as a general course for sentences of imprisonment to be concurrent. A “concession” for multiple offending cannot be expected by such offenders.”
viewed in isolation, attracts a starting point of no more than six months’ imprisonment. I also agree.
(b)Second incident – 23 December 2018
[34] The second incident involved you holding the victim captive in her bedroom while you attempted to persuade her to withdraw her statement, threatened to kill her, and severely beat her with a wooden rod. The aggravating features of your offending are:
(a)the extreme violence with which you beat the victim11 and the use of weapons to do so;12
(b)the serious injuries caused to the victim, including losing a tooth and having her forearm broken;13
(c)the vulnerability of the victim, who was detained and unable to defend herself against your attacks;14
(d)the violence being inflicted as a means to pervert the course of justice by influencing the victim to withdraw her statement;15 and
(e)the duration over which you detained the victim, remaining at the address overnight. Mr Horsley submits that the victim had opportunities to leave, particularly in the morning when you were absent. But this does not detract from the fact that you kept her overnight. There can be little doubt that although there may have been opportunities to escape, she felt unable to do so.
[35] The Crown submits that this incident of offending is aggravated by the fact the offending was within the victim’s home. Mr Horsley, however, submits that this factor
11 R v Taueki [2005] 3 NZLR 372 (CA) at [31(a)].
12 At [31(d)].
13 At [31(c)].
14 At [31(i)].
15 At [31(f)].
cannot be present because you also resided there. I consider, on balance, that it is a slightly aggravating factor that the offending took place within the victim’s home; a place where she was entitled to feel, and be, safe.16
[36] The Crown also submits that premeditation is an aggravating factor.17 Your counsel disagrees. He says you did not plan the offending. Again I consider that this is something of an aggravating factor, although not particularly so. There was some degree of premeditation involved in confronting the victim about her Police statement, the subsequent detention and violence being used to facilitate that offending.
[37] The Crown refers me to R v Nevin.18 There, the offender pleaded guilty to kidnapping, assault with a weapon, possession of an offensive weapon and threatening to cause grievous bodily harm.19 He had invited his former partner to his house on the pretext of having a gift for their daughter.20 He produced a knife, took the victim’s car keys and forced her into the garage, where he bound her hands and feet, put tape over her mouth, threatened to knock her unconscious and held a knife to her chest.21 Courtney J set a starting point of three years and six months’ imprisonment.22
[38] In my view your offending is more serious.23 While it did not involve the same degree of premeditation, other aggravating factors render it more serious. First, you violently beat the victim, causing injuries far more serious than in Nevin. Secondly, the purpose of the kidnapping and assault was to pervert the course of justice, by persuading the victim to withdraw her statement.
[39] I consider that the appropriate starting point for this set of offending is four years’ imprisonment.
16 At [31(j)] the Court of Appeal commented that “violence occurring in a person’s house is to be treated as an aggravating factor calling for a higher sentence”.
17 At [31(b)].
18 R v Nevin HC Auckland CRI-2005-004-18658, 12 September 2007.
19 At [2].
20 At [5].
21 At [5].
22 At [15].
23 I therefore consider the other cases referred to by counsel, R v Hayes CA171/06, 20 July 2006; and Anguna v R [2020] NZCA 127, where lesser starting points were adopted, as less serious and of limited assistance.
(c)Third incident – 14 January 2019
[40] The third incident involved taking the victim against her will to a remote location, threatening to kill her, kicking her in the head, strangling her with a rope until she lost consciousness, and sexually violating her. Both your counsel and the Crown agree that six aggravating factors are present:24
(a)the violence was inflicted using weapons. It caused the victim serious harm and included bruising and abrasions to her neck, legs, forehead, abrasions to her chest, and lacerations to her tongue;
(b)the detention lasted several hours, during which the violent and sexual offending occurred;
(c)the vulnerability of the victim, who was unable to defend herself or leave;
(d)the degree of violation, involving two rapes, oral sexual violation and violation with a bottle;
(e)the premeditation associated with taking the victim to a remote address to offend against her, for the purpose of influencing her to retract her statement; and
(f)the violent and sexual offending being for purpose of perverting the course of justice.
[41] Both your counsel and Mr Smith, for the Crown, agree that your offending sits between Band 2 and Band 3 of the guideline judgment for sexual violation by rape, R v AM.25 Band 2 ranges between seven and 13 years’ imprisonment and Band 3 ranges between 12 and 18 years’ imprisonment.
24 The aggravating factors of this set of offending are derived from R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 (sexual violation by rape and unlawful sexual connection); and R v Taueki [2005] 3 NZLR 372 (CA) (injuring with intent to cause grievous bodily harm and with intent to injure).
25 At [98]–[107] the Court of Appeal sets out the type of offending that falls within Band 2 and Band 3 respectively.
[42] The Crown submits that the appropriate starting point is between 12 and 13 years’ imprisonment. Your counsel submits that between 11 and 12 years’ imprisonment better reflects the seriousness of your offending.
[43] Band 3 is appropriate for offending which involves two or more of the factors increasing culpability to a high degree, or more than three of those factors to a moderate degree.26 It is my view that your offending involved violence and detention to a high degree, and premeditation and harm to the victim to a moderate degree. This necessarily places your offending in Band 3.27
[44] I consider that the appropriate starting point is 12 years’ imprisonment, which sits at the bottom of Band 3.
(d)Fourth incident – 27 January to 24 March 2020
[45] This incident involved you, over a two month period, calling the victim from prison expressing your desire to “make things right” and bribing her with offers of money and a car.
[46] There is no sentencing guideline judgment for attempts to pervert the course of justice. Any attempt to disturb the administration of justice is to be deplored, however, and in all but the most exceptional circumstances, must be met with a moderately lengthy term of imprisonment.28
[47] The Crown submits that a starting point of three years’ imprisonment is appropriate. Mr Horsley, however, submits that the starting point should be between one-and-a-half and two years’ imprisonment.
[48] The Crown has referred me to Henare v R.29 There, the offender, in breach of his bail conditions, sent the complainant two Facebook messages over a 40 minute
26 At [105].
27 None of the cases cited in R v AM are particularly similar to the offending in the present case, so are of limited assistance. There are, however, involve similar themes to the home invasion, violent assault and rape, punctuated by threats to kill in R v Amohanga [1989] 2 NZLR 308 (CA).
28 R v Churchward CA439/05, 2 March 2006 at [14].
29 Henare v R [2018] NZHC 900.
period which read “Drop those charges bro” and “Bae did you hear me”.30 Churchman J considered that the messages involved direct pressure in breach of a non-association order, but did not contain threats.31 This attracted a starting point of 13 months’ imprisonment.32
[49] Mr Smith also referred to Ledgerwood v R.33 In that case the offender communicated on Facebook with the complainant of an assault charge against the offender’s brother.34 He called him a “snitch” and a “nark” and sent veiled threats about him giving evidence in Court.35 Dunningham J upheld the sentencing Judge’s starting point of three years’ imprisonment.36
[50] It is my view that your offending is more serious than that in Henare. It involved four phone calls over an extended period in contrast to two Facebook messages. You also attempted to bribe the victim with money and a car, rather than simply requesting that she drop the charges.
[51] I consider your offending to be less serious than that in Ledgerwood primarily because it did not involve name calling nor threats.
[52] For those reasons, I consider a starting point of two years and six months’ imprisonment appropriate.
(e)Total starting point
[53] Adding these starting points together comes to a total of 19 years’ imprisonment. This, of course, must be adjusted for totality. Individual sentences must reflect the seriousness of each offence.37 But where they are imposed cumulatively, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.38
30 At [14].
31 At [69].
32 At [72].
33 Ledgerwood v R [2017] NZHC 822.
34 At [5].
35 At [5].
36 At [8] and [17].
37 Sentencing Act 2002, s 85(1).
38 Section 85(2).
[54] It is my view that the appropriate starting point for your offending, adjusted for totality, is 16 years’ imprisonment.
Adjustments to the starting point for personal circumstances
[55] I now turn to consider what adjustments need to be made to that starting point having regard to your personal circumstances.
(a)Prior convictions
[56] There is no dispute that you have prior convictions which warrant an uplift on the starting point. In 2005, you offended against a former partner and were sentenced to four years’ imprisonment. Shortly after in 2009, you offended again. You were sentenced to nine years’ imprisonment. That was very serious offending. Only 10 months later you committed the index offending, which was, in relative terms, even worse.
[57] For this, I impose an uplift of 12 months. This raises the starting point to 17 years’ imprisonment.
(b)Personal circumstances
[58] When sentencing an offender, the Court is required to take into account their personal circumstances, including their personal, family, whānau, community, and cultural background.39 In Zhang v R, the Court of Appeal recognised that a person’s background may reduce their moral culpability for their offending.40
[59] Your counsel has helpfully provided the Court with a s 27 cultural report addressing this. The report writer identifies several key factors which are particularly significant in the context of your offending.
[60] I also record that a member of your whānau, Ms Vivienne Fairbrother, courageously addressed me on your behalf in Court. She was eloquent, she was
39 Section 8(i).
40 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. See also Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [40]–[50].
sincere and her comments to me were plainly heartfelt. She spoke of the challenges that you have faced in life but most significantly, she emphasised that you have not had the full opportunities to engage in rehabilitation and she asked that the Court take this into account and not send you away effectively, as she put it, “for the rest of your life”. You have a great deal to be grateful for the whanau support you have in Court today.
[61] However, there is no doubt at all that you grew up in a dysfunctional home where abuse was the norm. You were a victim of emotional and physical violence. The beatings you describe were severe and regular. Some were meted out as a form of discipline, but often you were beaten for no apparent reason.
[62] Your family was poor and lived in an area the report writer describes as a “Maori gang slum”. You often witnessed and experienced gang violence from neighbours. You eventually joined a gang through your connections with those in your neighbourhood.
[63] You were also subject to other forms of abuse during your childhood which I note, but for sensitivity reasons, will not elaborate on.
[64] When you were as young as nine years’ old, you began using drugs and alcohol to escape your trauma.
[65] You left school with no qualifications. You report being expelled for selling drugs at school, after being forced to do so by your father. You did, however, gain a welding apprenticeship after leaving school.
[66] You have struggled, unsurprisingly, with mental health issues for many years. A particularly traumatising event in your life was when you discovered that your younger brother had committed suicide. You attribute this to the abuse you both suffered during your childhood.
[67] Both Mr Horsley and Mr Smith accept that there is a connection between your background and your offending. It is difficult to see how that cannot be the case. I
accept that there is a causative link between your background of violence and deprivation, and your offending. It is my view that a discount of 20 per cent is appropriate to reflect that.
Conclusion on finite sentence
[68] Applying that 20 per cent discount to 17 years’ imprisonment results in an end sentence of 13 years and seven months’ imprisonment. This will be your final sentence if I decide not to order preventive detention.
Minimum period of imprisonment
[69] I now turn to consider whether to impose an MPI. The Crown seeks an MPI of two thirds of your sentence. Mr Horsley submits that an MPI of one half of your sentence is appropriate.
[70] The Court may impose an MPI that is longer than the default period if it is satisfied that that period is insufficient to hold you accountable for the harm done to the victim and the community by the offending; denounce the conduct in which you were involved; deter you or other persons from committing the same or a similar offence; and protect the community from you.41
[71] You have previously been the subject of MPIs for similar, but less serious, offending. In 2006 your sentence included an MPI of one half of your sentence. In 2010 this was increased to the maximum MPI of two thirds of your sentence. These MPIs have obviously had limited deterrent effect, given that your offending has escalated in seriousness over time. A further MPI will, however, denounce the conduct in which you were involve, and most crucially, protect the community.
[72] For those reasons, I impose an MPI of two thirds of your sentence. That is, an MPI of nine years’ imprisonment.
41 Sentencing Act 2002, s 86(2).
Preventive detention
[73] I now turn to consider whether I should make an order for preventive detention. That option is available to me because you have committed a qualifying offence.42 I may only sentence you to preventive detention if I am satisfied you are likely to commit another qualifying offence if you are released on parole after a finite sentence.43
[74] The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.44 Protection of society has always been a dimension of sentencing, but in the case of preventive detention that dimension is predominate.45 It is important to recognise, however, that preventive detention is not a sentence of last resort or a punishment.46 It is an assessment and evaluation of risk. When considering whether to impose a sentence of preventive detention, I must take into account five factors:47
(a)any pattern of serious offending disclosed by your history;
(b)the seriousness of the harm caused by your offending;
(c)information indicating a tendency for you to commit serious offences in the future;
(d)the absence of, or failure of, efforts by you to address the cause of your offending; and
(e)the principle that a lengthy determinate sentence is preferable to preventive detention, if this provides adequate protection for society.
42 Section 87(2)(a).
43 Section 87(2)(c).
44 Section 87(1).
45 R v C [2003] 1 NZLR 30 (CA) at [5].
46 R v Evans [2018] NZHC 69 at [27].
47 Section 87(4).
[75] To assist in this decision, I am required to have regard to two reports from health assessors.48 The authors of those reports have discussed the likelihood of you committing another qualifying offence. I will, of course, take the experts’ opinions into account, but the final decision rests with me, based on all of the evidence.
Ms Di Blasio’s report
[76] Ms Di Blasio is a registered clinical psychologist. She has provided the Court with a report dated 11 November 2021.
[77] She interviewed you twice over a period of six hours. As is often the case with violent offenders, you reported being a victim of violence during your childhood. You describe being physically by your father. You felt that “the system” has let you down as your father was never charged for this abuse.
[78] You describe your past relationships as being dysfunctional. You said that you frequently enter relationships with women who have suffered abuse. These relationships were typically characterised by escalating verbal and physical violence. Ms Di Blasio considered that you understood that this repeated the actions of your father.
[79] You told her that you were never in any formal relationship with the victim of the index offending. You said she had been using you for sex and protection against the Mongrel Mob. You stated that she tried to sabotage your job by telling them you were smoking methamphetamine and that she was jealous of your relationship with your uncle. You described the violence in your relationship as being mutual. Ms Di Blasio noted, however, that your account differed markedly from official information.
[80] Ms Di Blasio stated that since 1998 you had completed a variety of individual and group-based interventions. The last of those treatment programmes was in 2007, before you were sentenced to nine years’ imprisonment in 2010. You have engaged in individual treatment, most recently between June and September 2018. She noted,
48 Section 88(1)(b).
however, that you have shown variable motivation to engage in treatment across time. She considered that while you express motivation to attend treatment at present, you have previously expressed such motivation then declined to engage or attend treatment.
[81] Ms Di Blasio considered that your pattern of violent offending has gone unabated with a fairly rapid rate of reoffending once back in the community. She expressed the view that any treatment gains you may have made during treatment have not been maintained. There are poor prognostic factors concerning the possible benefits of future treatment for you given your low motivation for prior treatment, recidivism, rejection of responsibility for your behaviour, and personality traits.
[82] She noted that the prosocial support of your mother, sister and ex-partner, and your positive attitude to work and employment, were protective factors against reoffending. But she noted that those factors had not prevented your index offending. She pointed out that this was your most serious offending to date, indicating that age does not appear to be a protective factor.
[83] Ms Di Blasio concluded that your ongoing pattern of intimate partner violence, rapid rate of violent recidivism, limited response to treatment, and personality factors indicating increased risk of violence (particularly intimate partner violence) all place you at a very high risk of serious intimate partner violent offending if you are involved in another relationship. Of utmost concern is your risk marker for intimate partner homicide.
[84] Ms Di Blasio considered that you were at a high risk of violent reoffending generally, particularly towards those you feel threatened by. She expressed the view that you are at an average risk of further sexual offending.
Dr Brunskill’s report
[85] Dr Brunskill is a consultant forensic psychiatrist for the Midland Regional Forensic Psychiatric Service. He provided the second report addressing your risk of reoffending.
[86] Dr Brunskill also noted that you do not take full responsibility for your offending. Your view is that responsibility for the offending should be shared between you and the victim. You expressed irritation that an examination of her character was not part of the legal process.
[87] Dr Brunskill reported that you deny the sexual violence aspect of your convictions. Concerningly, you professed to being in a quandary, stating that you would continue to assert that you had not raped anyone, but needed to acknowledge that you had in order to be considered for parole in the future.
[88] Dr Brunskill agreed that your main propensity for violence is within intimate relationships, but that it is not exclusive. He noted that once you become enraged, you have demonstrated a capacity for inflicting serious violence well beyond a simple loss of emotional control. Dr Brunskill further agreed that this is attributable to unhelpful personality traits, such as a heightened sensitivity for perceived threat and perceived rejection or disrespect.
[89] Dr Brunskill considered that there are several risk factors which you will need to address through treatment. These included:
(a)the development of a full acknowledgement for all aspects of convictions, including sexual violence;
(b)the identification of dysfunctional personality traits;
(c)the instrumental use of fear and intimidation within offending (mapping);
(d)recognising disinhibition via substance use and developing an abstinence model;
(e)developing coping strategies when faced with interpersonal stress;
(f)identifying your use of psychological defence mechanisms and cognitive distortions with respect to the offence narrative (minimisation, rationalisation, externalisation of blame);
(g)developing your ability to acknowledge victim perception/narrative as it stands; and
(h)processing your own experience of childhood trauma and abuse.
[90] Dr Brunskill concluded that extensive psychological assessment and intervention and monitoring should be incorporated into sentencing and custodial management planning. Without progress derived from treatment, your risk of reoffending will not be meaningfully modified.
[91] Against that background, I now turn to consider each of the factors I am required to take into account in considering whether a sentence of preventive detention should be imposed.
Is there a pattern of serious offending?
[92] The Crown submits that a pattern of serious offending is apparent from your criminal history.
[93] I agree. You have several convictions for injuring with intent to cause grievous bodily harm, the first of which was in 2001. You offended again in 2005 and were sentenced to four years’ imprisonment. Shortly afterwards in 2010, you reoffended and were sentenced to nine years’ imprisonment. You then committed the index offending. All involved serious violent offending, with escalating seriousness. That the index offending involves both violent and sexual offending is particularly concerning.
[94] The intervals between each instance of your offending are short. Ms Di Blasio describes your pattern of offending as “extensive and versatile” with a rapid rate of violent recidivism. Dr Brunskill noted that you told him the longest time you spent out of prison was a period of about three years between 1997 and 2000.
[95]So plainly there is a pattern of serious offending.
What is the seriousness of the harm?
[96] The Crown submits that the harm caused by your offending is significant. This, too, must be true. Your various victims suffered serious physical injuries and emotional trauma from your attacks.
Do you have a tendency to commit serious offences in the future?
[97] The Crown submits that you have a tendency to commit serious offences in the future. The nine factors which support that conclusion include:
(a)you have continued to violently offend for approximately 20 years, each time with escalating seriousness;
(b)when factoring in the time you spent in prison, your rate of recidivism is “rapid”;
(c)you were a victim of violence and other abuse during your childhood and understand that your offending repeats the actions of your abusers;
(d)while you accept responsibility for the violent aspect of the index offending, you continue to deny responsibility for your sexual offending;
(e)you are assessed as being at a very high risk of serious intimate partner violent offending if you are involved in another relationship, with risk markers for intimate partner homicide being present;
(f)you were assessed as being at a high risk of violent reoffending generally, particularly towards those you feel threatened by, and at an average risk of further sexual offending;
(g)you have limited protective factors against further offending when you are in the community;
(h)extensive psychological assessment and intervention and monitoring is required to meaningfully modify your risk of reoffending; and
(i)historically your motivation for treatment has been variable and you have made limited progress thus far.
[98] The combination of these factors leads me to be satisfied you have a tendency to commit serious offences in the future. That is particularly the case if you end up in an intimate relationship. Both Ms Di Blasio and Dr Brunskill agree that your tendency to offend will not be obviated without extensive treatment.
Is there an absence of efforts to rehabilitate?
[99] The Crown submits that you have had ample opportunity to address the root causes of your offending and rehabilitate but you have demonstrably failed to do so.
[100] In 1998 you completed a violence prevention programme. Three years later you continued to violently offend, being convicted of injuring with intent to cause grievous bodily harm. In 2007 you completed a High Risk Personality Programme. Within two years of completing that programme you violently reoffended.
[101] On the other hand, Mr Horsley submits that in recent years you have had limited opportunity to address the causes of your offending through treatment.
[102] You said that during your last sentence of imprisonment you were unable to attend the special treatment unit programme. Once you had completed your non- parole period, you say you were put on a waiting list for the programme. By the time there was a place for you in the programme, you say that you had insufficient time left on your sentence to complete it.
[103] Ms Di Blasio reported that you declined to attend this programme for some time. She stated that this was because you preferred individual treatment and were concerned that if you attended the group programme you might be targeted by opposing gang members, as you had been previously. This resulted in you completing your sentence without any rehabilitative assistance.
[104] You subsequently attended five sessions with a psychologist between June and September 2018. Your treatment was discontinued, with you citing transport difficulties as the reason. Shortly after you committed the index offending.
[105] It is apparent that you have gone some time without participating in any lengthy or intensive treatment programmes. Ms Di Blasio reports that you are presently motivated to undertake treatment. She described you as expressing frustration about not having had treatment during your prior prison sentence. Significantly in my view, she noted that you were genuine in your desire to change, to be a better person, father and to develop self-respect. This indicates that you have prosocial aspirations. The obvious difficulty is that you have asserted similar aspirations in the past, but your engagement has waned.
[106] Ms Di Blasio considered that when you have engaged appropriately in treatment you have made some treatment gains. But the challenge is that you have struggled to maintain those gains. She considered that if you engage appropriately in the recommended treatment, which you have demonstrated capacity for in the past, it is likely there would be some reduction in your violence risk profile. You will, however, require a high level of external monitoring and management in the future. Dr Brunskill sets out a variety of factors for you to address that will reduce your risk of reoffending. The challenge for you is whether you are, in fact, capable of completing the necessary programmes you now claim you are committed to.
[107] Ultimately, however the past is viewed, it cannot be said that you have not made efforts to rehabilitate. The experts appear to agree on that. In recent years there have been, in fairness, impediments to you receiving treatment that were in some respects beyond your control. There is independent evidence from Ms Di Blasio that you genuinely wish to change. She regards your current openness to treatment as a protective factor against reoffending. The question for me is whether you should be given the opportunity to prove you can engage effectively.
Is a lengthy determinate sentence preferable?
[108] Next is the general principle that a lengthy determinate sentence is preferable if it provides adequate protection for society. On that question, it is relevant that an
extended supervision order (“ESO”) may be imposed on release from prison if the authorities at that time consider you represent an ongoing risk to public safety.
[109] If you do not make satisfactory rehabilitative progress, Corrections may apply to the Court for an ESO. ESOs can last for 10 years and greatly restrict a person’s liberty by placing conditions on them designed to reduce the risk of reoffending and protecting and enhancing public safety. This not only provides another incentive for you to maintain your current motivation to engage in treatment, but also ensures that a finite sentence will appropriately protect the community.
[110] An ESO is not an “agreeable alternative” to preventive detention,49 but it is a “potential safety valve” which provides some room for a sentencing Judge to meet the statutory imperative that a lengthy finite sentence is preferable to preventive detention.50
[111] A finite sentence of 13 years and seven months’ imprisonment is, by any measure, a very long sentence. It is considerably longer than either of your prior sentences. It is likely you will be well into your sixties by the time you are released. I have no doubt that this will be a substantial motivator for you to make meaningful and permanent changes. If you do not take appropriate steps to rehabilitate while in prison, you will likely serve the entirety of your sentence in custody as you have done before and even after release, be subject to severe restrictions under an ESO. When you are released, your age will reduce the risk of you entering relationships and violently reoffending. While Ms Di Blasio did not consider that age has been a protective factor for you thus far, it is unlikely she was aware of the length of sentence you would be facing.
[112] In the end I have decided, albeit by a fine margin, not to impose preventive detention. There are three main factors which have influenced me to adopt that course. First, I am not satisfied that your rehabilitative potential has been exhausted. There remains a real and tangible prospect that you will engage and reform. Secondly, you will likely be in your 60s when you are released. Your criminogenic tendencies will
49 R v Hutchinson [2007] NZCA 55 at [19].
50 R v Mist [2005] 2 NZLR 791 (CA) at [101].
have reduced by then. And finally, given the length of this sentence, the relevant authorities will be in a much better position than I am, sitting here today, to assess the risk you pose at the time of any release from prison and if that risk is unacceptably high, take appropriate protective measures such as applying for an ESO.
[113] I also consider that there is some force in Mr Horsley’s oral submission to me this morning that given the narrowness of the class of victims you tend to offend against, that is intimate partners, an ESO would provide the appropriate and effective mechanism to properly manage that risk.
[114] I therefore consider that a lengthy finite sentence is preferable to preventive detention, although I do record that it was entirely appropriate and responsible for the Crown to adopt the stance that it has .
[115] Mr Undersen, how all that pans out is very much in your hands. If you engage effectively with rehabilitation and if you make effective gains, you will get out of prison earlier and as a better and safer person. If you do not, you will stay in jail a very long time. The choice is yours. As I said earlier, it is plain you have whānau support. You are a lucky man to have that because many people who sit where you are sitting have no such support. There is no one sitting in the public gallery behind them to support them as your whānau has today. You deserve to be very grateful to them and the best way to repay that gratitude, is to engage fully in those programmes which you have said you are now motivated to engage in.
Sentence
[116] Mr Undersen, please stand. I sentence you to 13 years and seven months’ imprisonment. I impose an MPI of nine years.
[117] I am required to specify sentences for each of the 17 charges on which you have been sentenced. These are set out below:
(a)sexual violation by rape (x 2) – 13 years and seven months’ imprisonment;
(b)sexual violation by unlawful sexual connection (x 2) – 13 years and seven months’ imprisonment;
(c)kidnapping (x 2) – four years’ imprisonment;
(d)injuring with intent to cause grievous bodily harm – four years’ imprisonment;
(e)injuring with intent to injure (x 2) – three years’ imprisonment;
(f)threatening to kill (x 3) – two years’ imprisonment;
(g)male assaults female (x 2) – one year imprisonment;
(h)attempting to pervert the course of justice (x 3) – two years and six months’ imprisonment.
These sentences are to be served concurrently with the effect that the overall sentence remains one of 13 years and seven months’ imprisonment.
[118]You may stand down.
Moore J
Solicitors:
Crown Solicitor, Tauranga Mr Horsley, Tauranga
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