R v WH
[2023] NZHC 2870
•13 October 2023
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WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 203 CRIMINAL PROCEDURE ACT 2011. SEE
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2021-019-3398
[2023] NZHC 2870
THE KING v
WH
Hearing: 13 October 2023 Appearances:
R Mann for the Crown R Boot for the defendant
Date:
13 October 2023
SENTENCING NOTES OF CAMPBELL J
R v WH [2023] NZHC 2870 [13 October 2023]
Introduction
[1] WH, you are for sentence today for serious sexual and violent offending. After a trial in this Court, a jury found you guilty of six charges of indecency with a girl under 12,1 two charges of indecency with a girl between 12 and 16,2 a charge of sexual violation by unlawful sexual connection,3 a charge of indecent assault,4 a further charge of sexual violation by unlawful sexual connection,5 and a charge of sexual violation by rape.6 You had earlier pleaded guilty to a representative charge of male assaults female.7
[2] There are four victims of your offending. Each is a niece of yours. I acknowledge each of them, particularly S, who is here today. I will say more about how your offending has affected your victims once I have described your offending.
[3] You are already a serving prisoner, having been sentenced to 15 years’ imprisonment by Downs J in October 2020 for even more serious sexual offending. In that case there were two victims. One was your daughter. The other was one of your nieces who is also a victim of the offending for which I am sentencing you today.
[4] In deciding upon your sentence today, I have to take into account that earlier sentence and that other offending.
Facts
[5] I am going to start by briefly describing the offending for which I am sentencing you today.
1 Crimes Act 1961, s 133(1)(a). Maximum penalty: 10 years’ imprisonment. This section was repealed 20 May 2005.
2 Crimes Act 1961, s 134(2)(a). Maximum penalty: seven years’ imprisonment. This section was amended 20 May 2005, the offence is now captured by s 134(3).
3 Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty: 20 years’ imprisonment. Both sections were amended 20 May 2005, although the offence remains captured by the amended sections.
4 Crimes Act 1961, s 135. Maximum penalty: 10 years’ imprisonment.
5 Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty: 20 years’ imprisonment.
6 Crimes Act 1961, ss 128(1)(a) and 128B. Maximum penalty: 20 years’ imprisonment.
7 Crimes Act 1961, s 194. Maximum penalty: two years’ imprisonment.
[6] You committed indecencies against your niece R on several occasions from about 1993 to 2000. You did so in her bed or called her over to where you slept. You simulated sexual intercourse with her or touched her genital area with your hand. You also sexually violated her by penetrating her vagina with your finger. R was under 12 when most of this offending occurred, and between 12 and 16 when it finished. You were aged 15 through to your early 20s during the course of this offending.
[7] You also committed indecencies against your niece S in about 1993. S was under 12, you between 14 and 16. You simulated sexual intercourse with S and placed her hand on your penis. You did this in her bed.
[8] Your offending against N occurred much later, on New Year’s Eve 2014. She walked you home as you were intoxicated. You took the opportunity to sexually violate N by raping her and performing oral sex on her. You were 35.
[9] In 2014, your niece A came to your home. An argument started. You repeatedly punched A in the head.
Summary of offending for serving sentence
[10] I will now describe the offending for which you are already serving a sentence. WH, I am going to describe this offending in much more detail, for reasons that will become apparent. You were sentenced following your convictions for indecency on a young person, sexual violation by rape, sexual violation by unlawful sexual connection, and attempting to pervert the course of justice.
[11] In April 2013, your niece N visited your home while you drank with other members of your family. She had two drinks and some synthetic cannabis. You later entered the room she was sleeping in and lay on the bed. As it was cold, she told you to get under the blankets. When you tried to pull her closer, she attempted to push you away. Over her clothing, you then put your hand on her stomach and breasts. You put her hand inside her underwear and rubbed her genital area. She tried twice to push you away but you persisted. At the time you were 35 and N was only 15.
[12] Your other sexual offending was very serious and prolific. It was against your daughter. It began in April 2013, when she was 14. From then until late June 2013, you offended against your daughter every day, sometimes up to four times a day. You raped her and made her perform oral sex on you.
[13] In late June 2013, you and your daughter moved in with N. There you continued to rape and require oral sex of your daughter. However, as others were around, your offending was less frequent. Subsequently you and your daughter returned home. Your offending reverted to daily penetrative abuse, again up to four times each day.
[14] This continued until 1 January 2015, when you were arrested for assaulting your daughter and another of your children. You were convicted and then sentenced to one year’s imprisonment on two charges of assault.
[15] Between 2 September and 5 December 2015, you and your daughter returned to N’s home, where you shared a bedroom. You continued to rape your daughter daily and make her perform oral sex. Sometimes the offending occurred several times a day.
[16] On 5 December 2015, you were arrested for assaulting your daughter. The next day, your daughter went to a Police station to complain about your sexual offending. You called her from prison and successfully dissuaded her from making a statement.
[17] This facilitated further offending from when you were released from prison on 28 April 2016. From then until 26 August 2017, you and your daughter again shared a bedroom at N’s home. You continued to repeatedly rape and require oral sex of your daughter. She became pregnant. When confronted by a relative you confirmed that you were the father of her child. This was confirmed by DNA analysis. At the time your daughter was 19 years old, and you were 39. She gave birth on [Date]. By that time, you had been arrested on other matters.
[18] Police spoke to you on 28 May 2019 in relation to the offending against your daughter. You not only denied it, but accused the victims of making false complaints saying they had been brainwashed and were motivated by money.
[19] You were charged with the offending in June 2019. You pleaded guilty in August 2020.
[20] Downs J sentenced you to a term of 15 years’ imprisonment with a minimum period of imprisonment of eight-and-a-half years. His Honour came to the 15 years as follows:
(a)He took a starting point of 18 and half years for your sexual offending. He said it was not far removed from the most serious of cases involving sexual violation.
(b)His Honour then added 18 months for the perversion of the course of justice offending. This gave a global starting point of 20 years’ imprisonment.
(c)Against that starting point, he allowed 15 per cent for your upbringing and mental health and linkage to your offending, and 10 per cent for your guilty plea. This gave a final sentence of 15 years’ imprisonment.
The victims
[21]I have read victim impact statements for your current offending from R, S and
N. S read her statement in Court this morning. It is clear that the effects of your offending have been profound and to a large extent are ongoing. It deprived them of the ability to have normal and positive sexual relationships. It also meant that they were at times excluded from their family. I acknowledge the efforts your victims have made to overcome these effects. Their strength and bravery was clear from the way in which they gave evidence at the trial.
Approach to sentencing
[22]WH, determining your sentence today involves two steps.
[23] As you know, the Crown is seeking a sentence of preventive detention. Before considering whether to impose such a sentence, the first step is to determine the finite sentence and any minimum period of imprisonment that would appropriately be imposed if I did not sentence you to preventive detention. Then I will go on to the second step, which is to determine whether preventive detention should be imposed, and if so any minimum period for that sentence.
First step: finite sentence
[24] For the first step, I must consider what your sentence would have been if all your offending, including that for which you have already been sentenced, was assessed at the same time.8 This means I must first consider the appropriateness of the total sentence as if you were before the court for all of your offending,9 including the offending that Downs J sentenced you for. I will then set a finite sentence for the offending that is before me today equivalent to the difference between that total and the sentence you are currently serving.
[25] When I look at the totality of your offending, the lead offending is undoubtedly the offending that was before Downs J. I adopt the starting point that his Honour took for that offending, 20 years’ imprisonment. The question for me is what the appropriate uplift is to that starting point to reflect the offending that is before me today.
[26] In determining the appropriate uplift, it is helpful to consider what the starting point would be if I considered only the offending that is before me today – what I will call the index offending. The Crown’s lawyer and your lawyer agree that I should be guided by a Court of Appeal case, called R v AM.10 The lawyers agree that your rape of N, which is the most serious of your index offending, would fall within what is
8 Neville Trendle and Warren Young (eds) Adams on Criminal Law- Sentencing (online ed, Thomson Reuters) at [SA85.05]; and R v McDonald [2023] NZHC 738 at [2]–[3].
9 Piao v R [2020] NZCA 607 at [22].
10 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
called rape band 2 in that case. That band is from seven to 13 years’ imprisonment. There were several aggravating features to your index offending – the vulnerability of your three victims, the scale of your offending, and breach of trust. On the other hand, I cannot uplift for the offending that occurred when you were under 18 years old.11 Taking these matters into account, a starting point of 10 years’ imprisonment would be warranted if I was just considering the index offending.
[27] I cannot simply add that 10-year starting point to the 20-year starting point adopted by Downs J. Cumulative sentences of imprisonment must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.12 As the Crown acknowledges, there must therefore be what is called an adjustment for totality.
[28] In making that adjustment, the most striking thing is that, as serious as your index offending was, the offending for which you are already serving a sentence was far far worse. The gravity of that other offending was reflected in a long starting point of 20 years’ imprisonment. I consider that the appropriate uplift from that starting point to reflect the index offending is five years’ imprisonment. I therefore adopt an overall starting point of 25 years’ imprisonment.
Allowances against starting point
[29] Against that starting point I have to make two allowances. The first is the allowance that Downs J gave for your guilty plea to the charges on which he sentenced you. That was a two-year allowance. I do not make any further allowance for your guilty plea to the male assaults female charge in the index offending. That was immaterial given that you went to trial on the more serious sexual offending.
[30] The second is for your upbringing and mental health. Downs J allowed you 15 per cent, or three years, against his 20-year starting point for these matters. I have to do the same. The question is whether I make a similar allowance against the five- year uplift that I would make to his starting point.
11 Charges 5, 6, 8 and 9: s 18 of the Sentencing Act 2002 and Diaz v R [2021] NZCA 426 at [32].
12 Sentencing Act 2002, s 85(2).
[31] I have been provided with information on your background from a report prepared by a probations officer and from a report prepared by Delwyne Woodmass. Both are largely based on your self-reporting, but there is also validation from other persons and from the tests administered by a psychologist and a psychiatrist, whose reports I refer to later. From a young age you were beaten on a regular basis by your father, who was a drug user. Your mother was an alcoholic. There was often no food in the house. Your father started sexually abusing you when you were seven, including by raping you. This went on for five years. Your older sister, who was also abused by your father, was also sexually abusing you. She has recently been convicted for that offending. When you were 15, you and your sister went to live with your mother’s family. You both say you suffered further sexual abuse there at the hands of other extended family members.
[32] WH, I can only describe that upbringing as horrific. Sexual offending within a family became to some extent normalised for you. That does not excuse your offending. But I am satisfied that there is a causal connection to your offending and that this, to some extent, reduces your moral culpability for it. Like Downs J, I allow 15 per cent from the sentence that would otherwise be imposed.
End result on finite sentence
[33] This means that, if I were sentencing you for all your offending, I would sentence you to 19 years and three months’ imprisonment. This means that the finite sentence I would impose for the index offending would be four years and three months’ imprisonment.
[34] I also have to consider whether I would impose a minimum period of imprisonment on that finite sentence. The Crown acknowledges that a minimum period is available only for the sexual violation of R, the rape and other sexual offending against N and the assault of A. The Crown submits that all the purposes in s 86 of the Sentencing Act 2002 for which a minimum period may be imposed are present for that sub-category of your offending, but says that a minimum period would have no practical effect. They say that is because the Sentencing Act provides that the accumulated minimum period cannot exceed ten years.
[35] I doubt the Crown’s position is correct.13 But in any case, I consider a minimum period is not warranted for this offending. That is because, in determining whether the standard one-third period for this offending suffices to meet the purposes set out in s 86, I consider I have to take into account that that period will sit on top of the eight-and-a-half-year minimum period already imposed by Downs J. Seen in that context, the standard period will suffice.
Preventive detention
[36] I now turn to consider whether I should impose a sentence of preventive detention.
Preventive detention
[37] 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.14 Three preconditions, set out in s 87(2) of the Sentencing Act, must be met before I can even consider a sentence of preventive detention.15 As relevant to you, these three preconditions are:
(a)You have been convicted of a qualifying sexual offence;
(b)You were at least 18 years old at the time of that offence; and
(c)I am satisfied that you are likely to commit another qualifying sexual offence if released at your sentence expiry date.16
13 The Crown referred to s 86(4) of the Sentencing Act 2002. The most natural reading of that provision is that it sets a limit on the minimum period that may be imposed “in relation to that particular sentence” (to use the phrase in s 86(1)). It is not obvious that it sets a limit on an accumulated minimum period. The Crown also referred me to R v Tukuafu [2013] NZCA 103 at [26]. However, that case explained that in some instances the effect of s 84(4) of the Parole Act 2002 is that the imposition of a minimum period is of no practical effect. That would not be the case for WH.
14 Sentencing Act 2002, s 87(1).
15 R v Haerewa [2020] NZCA 198 at [18] and [45]; and R v Batchelor [2021] NZCA 160 at [27]– [28].
16 Section 87(2).
[38] I must also consider reports from at least two appropriate health assessors on the likelihood of you committing a further qualifying sexual offence.17
[39] If those three preconditions in s 87(2) are met, I have a discretion whether to impose a sentence of preventive detention. In exercising that discretion, I must consider the factors set out in s 87(4).
The preconditions in s 87(2)
[40] The first two preconditions in s 87(2) are clearly met in your case. The issue concerns the third: whether I am satisfied you are likely to commit another qualifying offence if released at your sentence expiry date. A determination on that matter may be informed by a range of information including the health assessors’ reports and all other relevant evidence.18
[41] I have calculated that your sentence expiry date, if I did not impose a sentence of preventive detention, would be in August 2039. I have to assess your risk of offending as at that date.19
[42] I have received two reports from health assessors. One is from Veronika Adams, a clinical psychologist. She says you lack insight into your offending against your daughter and that you continue to deny the index offending.
[43] Ms Adams conducted psychometric tests on you. One highlighted symptoms consistent with post-traumatic distress. Another suggested you experience fear and uncertainty in relationships consistent with parental treatment and unavailability, abuse, neglect, and frightening behaviour.
[44] Ms Adams administered several tests to assess your potential to re-offend. Her conclusion was that your risk of sexual re-offending was above average, by which she meant at the higher end of the risk spectrum. She said that one of those tests uses age at release, which was difficult to calculate as you have not yet been sentenced. She
17 Section 88(1)(b).
18 R v Haerewa [2020] NZCA 198 at [45].
19 Cooper v R [2020] NZCA 683 at [24].
said she used your current parole expiry date instead. That is in November 2028. In her conclusion, she noted that you have yet to engage in offence-specific treatment.
[45] The other report is from Rishi Duggal, a psychiatrist. Dr Duggal reported that in 2017, when in prison, you were referred to counselling for PTSD arising from childhood sexual abuse. Prison transfers had interrupted that counselling, but you told Dr Duggal that you had re-engaged with it. You completed a rehabilitation programme addressing violence in 2018. You expressed no interest in a substance-abuse programme. You wished to focus on programmes for child sex offenders.
[46] Dr Duggal reported that you continued to deny the index offending but accepted that you should not have offended against your daughter. She said you were keen to engage in rehabilitative activities aimed at reducing your risk of sexual recidivism.
[47] Dr Duggal expressed the view that you met the criteria for post-traumatic stress disorder, paedophilic disorder, alcohol use disorder and antisocial personality disorder.
[48] She administered several tests to assess your risk of sexual re-offending. Her overall opinion was that your risk of sexual re-offending remained elevated if you were released into the community at this point in time. She was understandably reluctant to assess your risk of sexual re-offending into the distant future, observing that that risk had the potential to be diminished by rehabilitative activities or increased by other as yet unknown risk factors. Nonetheless, she said that there were some factors indicating you were at risk of similar offending in the future. Your upbringing was marred by being the victim of sexual abuse in the context of warped sexual boundaries between family members. Your sexual offending had increased over time.
[49] Ms Adams and Dr Duggal assessed the likelihood of future risk of sexual re- offending generally, rather than at a specific time. Their assessments are of course helpful to me in assessing your risk of sexual re-offending if you were released in 2039.
[50] Two things stand out for me in making that assessment. First, it is tolerably clear that you suffer from PTSD from the abuse you suffered as a child. Dr Duggal notes this as a factor that elevates your risk of sexual offending. You have only started to receive counselling for this since the last of your sexual offending. The second thing is that you have never engaged in rehabilitative activities aimed at your sexual offending. While your continued denial of the index offending might ordinarily indicate that such activities would be of no use to you (or not be made available at all), you have acknowledged your sexual offending against your daughter. Dr Duggal appears to have accepted that you were genuine in your desire to undertake these activities. Your engagement with other rehabilitation programmes, all since the last of your offending, is consistent with that.
[51] These two matters diminish the risk that you would commit sexual offences if released on your sentence expiry date.20 In addition, if counselling and rehabilitation programmes do not adequately reduce your risk of re-offending, an extended supervision order would seem likely, and that order would also reduce the risk.21 Given the long time to sentence expiry, I am not satisfied that you are likely to commit another qualifying sexual offence if you are released at that expiry.
[52]This means that I will not be imposing a sentence of preventive detention.
Protection orders
[53] The Crown seeks a protection order in relation to R and S.22 Generally speaking, these would prevent you from contacting them once you are released from prison. As I understand it, you do not oppose the orders. Mr Boot confirms that. I am satisfied these are necessary for the protection of each victim on release.
Sentence
[54]WH, please stand.
20 For a similar analysis, see Cooper v R [2020] NZCA 683 at [19]-[24].
21 The possibility of an extended supervision order is often taken into account as a relevant factor under s 87(4). But, given that such an order should reduce the risk of relevant re-offending, the possibility of such an order is also relevant to an assessment of the likelihood of re-offending under s 87(2)(c).
22 Sentencing Act 2002, ss 123A and 123B.
[55] On each of the sexual violation charges,23 I sentence you to four years and three months’ imprisonment.
[56] On each of the indecency charges, other than charges 5, 6, 8 and 9, I sentence you to two years’ imprisonment.
[57] On the charge of male assaults female, I sentence you to 12 months’ imprisonment.
[58]On charges 5, 6, 8 and 9, you are convicted and discharged.24
[59] All these sentences of imprisonment are imposed concurrently with each other but are imposed cumulatively on the sentence of imprisonment imposed by Downs J. What this means is that your effective sentence today is an additional four years and three months on top of the 15 years that was imposed by Downs J, a total of 19 years and three months.
[60]I make protection orders in relation to R and S.
[61]WH, please stand down.
Campbell J
23 Charges 12, 17 and 18.
24 WH was under 18 years old at the time of this offending. Section 18 of the Sentencing Act 2002 precludes a sentence of imprisonment.
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