R v White
[2022] NZHC 607
•29 March 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-004366
[2022] NZHC 607
THE QUEEN v
CHRISTOPHER JAMES WHITE
Hearing: 29 March 2022 Appearances:
J E Lancaster for Crown
M Starling and N R Wham for Defendant
Judgment:
29 March 2022
SENTENCING REMARKS OF EATON J
R v WHITE [2022] NZHC 607 [29 March 2022]
Introduction
[1] Mr White, I am now going to sentence you on the charge of sexual connection with a young person, a charge to which you pleaded guilty on 30 June 2021. Your guilty plea was entered in the District Court but because of your past similar offending on young persons, your sentencing was transferred to this Court for consideration of the sentence of preventive detention. I am sure that has been explained to you by your counsel.
[2] When you were convicted in the District Court you were given a second strike warning.1 But given the time that has passed since then I am going to repeat that warning to you now:
Because of your conviction on a charge of sexual connection on a young person, you are now subject to the three strikes law and this is now your final warning, and this warning will explain the consequences of you committing another serious violent offence. Today you will be given a written notice which contains a list of these “serious violent” offences.
(a)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 and that will be served without parole or early release unless it would be manifestly unjust to do so.
(b)If you are convicted of manslaughter committed after this warning, you will be sentenced to imprisonment for life and 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 of at least 10 years’ imprisonment.
(c)If you are convicted of murder after this warning then:
1 Sentencing Act 2002, s 86B.
(i)you must be sentenced to imprisonment for life and the Judge must order you to serve this sentence without parole unless it would be manifestly unjust to do so; and
(ii)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.
(d)And, 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 a Judge considers it would be manifestly unjust to do so.
[3]So that completes the warning, the final warning, Mr White.
The offending
[4] As regards your current offending, this is a public Court, and it is important and in the interests of transparency that the facts of your offending are ventilated, albeit briefly.
[5] The victim of your offending was aged 15 and is described as a friend of yours. At about 9 p.m. on 6 June 2021 it was arranged for the victim to meet you at your address. While at your house the victim smoked cannabis and drank alcohol that had been provided by you. You too were drinking alcohol. Shortly after midnight you performed oral sex on the victim. He has no recollection, having passed out while you were committing that act.
[6] You phoned your Child Sex Register case officer to report this offending within two days of the offence. You also admitted the offending to both your flatmate and to the victim’s uncle who had contacted you via social media using the victim’s social media account pretending to be the victim and asking you what had happened between the two of you.
[7]When spoken to by the police you declined to comment.
Victim impact statement
[8] I have read and considered the victim impact statement that was prepared in July last year. I trust that you have read that statement? (shakes head). I will ask your counsel to show it to you. The victim describes the incident as having left him on an emotional roller coaster. He became unmotivated to study. He became anxious about leaving his house and seeing people and he feels that you took advantage of him when he was in a vulnerable state.
[9] Mr White, with your history, I hope you have some appreciation of the harm that can be caused to victims of sexual abuse.
Personal circumstances
[10] The pre-sentence report describes you as an only child who was adopted at birth. You are in regular contact with your adoptive parents who have remained supportive of you throughout your offending history and I acknowledge their presence today, remotely, reflecting again their ongoing support of you. You are very fortunate to have their ongoing support.
[11] Prior to your remand in custody, you had stable accommodation with a longstanding friend. You had regular income through casual work and you were focussing on studying for a civil engineering degree. You were not in a relationship. You expressed concern to the pre-sentence report author that you were abusing alcohol and that was leading you to binge drink at the weekends.
[12] You attribute your problematic drinking to an incident when you were aged 19 and you yourself were the victim of a sexual crime at the hands of an older male. You told the pre-sentence report writer that you did not realise how much that event had affected you and that after the incident you had “bottled things up and started drinking heaps”.
Principles and purposes of sentencing/approach to sentencing
[13] In sentencing you today, I must impose a sentence that holds you accountable for your offending, that is the harm that you have caused to your victim and to the community. I must impose a sentence that denounces your conduct and reflects the gravity and seriousness of the offending and deters you from any further similar offending. I must also have regard to your personal circumstances, including those I have just outlined, and your prospects of rehabilitation.
[14] You will appreciate that in this case a sentence of imprisonment is inevitable. One of the primary questions I am being asked to address is whether a finite sentence of imprisonment, that is a fixed term, is appropriate or whether a sentence of preventive detention is necessary to protect the community from the ongoing risk that you pose.
[15] I am going to approach your sentencing in two stages. First, I will fix the finite sentence that I would impose and then I will decide whether I will subject you to a sentence of preventive detention. If I decide against preventive detention, then the finite sentence that I have indicated will be the sentence that will be imposed.
Finite sentence
[16] To fix a finite sentence I must engage in a two-step process in accordance with the Court of Appeal decision in Moses v R.2 Firstly, I determine the appropriate starting point to be adopted having regard to any aggravating and mitigating factors of the offending.3 Secondly, I identify and apply any adjustments that are appropriate for any aggravating and mitigating personal circumstances and for your guilty plea.4
Step one
[17] As recently confirmed by the Court of Appeal in Blomfield v R5 there are no tariff cases under s 134 of the Crimes Act 1961. What that means is there is no range
2 Moses v R [2020] NZCA 296.
3 Above n 2, at [46](a).
4 Above n 2, at [46](b).
5 Blomfield v R CA178/20 [2021] NZCA 102.
of sentence that must be imposed for offending of this nature. In Blomfield the Court referred to R v H6 where the Court of Appeal considered a starting point for offending under s 134 in cases after the maximum sentence was increased to 10 years’ imprisonment in 2005, could be fixed at four years’ imprisonment.7 In R v Johnson8 the Court of Appeal considered that a sentence of four years’ imprisonment was a useful reference point for s 134 offending where the particular aggravating factors have resulted in moderate culpability.
[18] Blomfield involved a 38-year-old offender engaging in sexual intercourse over a five-month period with a 14-year-old victim. Sexual intercourse had taken place on about four occasions and the victim had performed oral sex on the defendant in that case on about seven occasions. That offending occurred when the defendant visited the victim’s father at his work sites, places that were generally semi-rural locations. During the period of the offending the victim and the defendant had been exchanging indecent communications via social media. The complainant was described as highly vulnerable. The sentencing Judge there took a global starting point of four years’ imprisonment and that was upheld on appeal. That offending was characterised as moderate.
Aggravating factors of offending
[19]In this case, the Crown submits there aggravating factors are:
(a)the age difference – the victim being 15 and you aged 28;
(b)the victim vulnerability – the Crown points to the provision of alcohol by you to the victim and he being isolated, that is, alone at your home;
(c)the intrusiveness of the act – that the victim was in such a state that he had passed out during the act of oral sex; and
6 R v H (CA94/08) [2008] NZCA 237.
7 Above n 6, at [17].
8 R v Johnson [2010] NZCA 168.
(d)the harm to the victim, being the significant emotional effect described in the victim impact statement.
[20] Your counsel accept the victim’s vulnerability, he having fallen asleep and having previously used cannabis, the age disparity and the harm was caused by your offending as aggravating factors of your offending.
[21] Ms Lancaster has referred to a number of cases the Crown submits are relevant to fixing a starting point:
Faapuea v R9, a 20-year-old appellant pressured a 14-year-old complainant to meet him at a local school. The complainant had texted her sister indicating she was uncomfortable as to what was happening. The appellant put his finger in the complainant’s vagina and performed oral sex on her. He was convicted of two counts of unlawful sexual connection with a young person and two counts of doing an indecent act on a young person. The Court of Appeal upheld a starting point of two years and nine months’ imprisonment.
R v Bunn,10 the defendant was convicted of sexual violation by unlawful sexual connection for performing oral sex, and a second offence of doing an indecent act on a young person by placing his penis close to her mouth. The complainant was the defendant’s 12-year-old granddaughter and the District Court Judge took a starting point of four years’ imprisonment for the unlawful sexual connection charge uplifted by six months for the indecent act charge.
R v Hohaia,11 a 64-year-old defendant met the five-year-old victim, who was a boy, through their church. The defendant pulled down the victim’s pants and sucked his penis for about five minutes and exposed his own genitals. He pleaded guilty to sexual violation by unlawful sexual connection. A starting point of four years’ imprisonment was adopted.
9 Faapuea v R [2010] NZCA 20.
10 R v Bunn [2017] NZDC 22054.
11 R v Hohaia [2018] NZHC 254.
[22] By reference to those cases the Crown, in their written submissions and in their oral submissions today, submit that a starting point in the vicinity of two and a half to three years’ imprisonment is appropriate on the facts of your case. That is a recognition that the offending is lower in terms of seriousness than the Blomfield case and a number of the other cases referred to.
[23] Ms Wham, on your behalf, contends that the cases that the Crown advances engage more serious offending, involve younger victims and she points out that both R v Bunn and R v Hohaia involved a breach of trust that is not present in your case. Your counsel submit that a starting point of around two and a half years’ imprisonment is appropriate, this being a case involving a 15-year-old victim, a one-off offence and the absence of a trust relationship.
Mitigating features of the offending
[24] Both parties are agreed that there are not any mitigating features in relation to the offending itself.
Starting point analysis
[25] In setting a starting point for a finite sentence I have considered the previous decisions both from the Court of Appeal and from this Court, including those that have been referred to by counsel. As you have heard, there is no sentencing tariff for this offence. Each individual case is so different. The facts may vary significantly.
[26] I agree that the aggravating features of your offending are the provision of alcohol to a young person, the vulnerability of your victim given the state that he was in, and the fact that you were almost twice his age.
[27] Overall, I consider a starting point of two years and nine months’ imprisonment to be appropriate.
Step two
Aggravating features personal to the offender
[28] I then turn to the aggravating or mitigating factors that are personal to you that might warrant an adjustment to that starting point.
[29]Plainly your previous history of sexual offending is an aggravating feature.
[30] On 11 July 2011 you were sentenced to 18 months’ intensive supervision and six months’ community detention following your convictions on six charges of sexual connection with a young person who was a male family friend, aged 13 years. Those offences involved both oral and anal sex and were committed over 17 months between December 2008 and May 2010. You were aged 16 through to 17 at that time. You were 18 when you appeared as a first offender and were convicted and sentenced for those offences.
[31] You were serving that sentence of intensive supervision when you reoffended on 4 January 2012 and again on 1 April 2012. You were then aged 19. On each of those occasions you engaged in acts of oral sex with a male friend aged 13 years. You were not charged with those offences until several years later. When charged you pleaded guilty promptly and, on 21 June 2017, you were sentenced to two years, two months’ imprisonment on two charges of sexual connection with a young person. You were given a first strike warning.
[32] As you now know, by operation of law the consequences of you not heeding that warning and reoffending and committing a serious violent offence is that you will be required to serve the full term of any finite sentence that I impose today.
[33] The Crown submits that your prior convictions warrant an uplift of between six and nine months. Your counsel accept that an uplift is appropriate but submit that that should be no more than six months.
[34] That you will be required to serve the full term of any finite sentence that I were to impose is a factor that I take into account in calculating the length of a finite
sentence.12 However, the Court of Appeal has confirmed that it is only in “exceptional cases” that ineligibility for parole ought to be reflected in fixing the length of a second strike sentence. Having regard to your first strike offence and the degree of commonality with your second strike offence I do not regard this case as falling within that exceptional category. But I must exercise some caution in order to avoid double counting. It was your previous convictions that have triggered the strike legislation. I therefore think it appropriate that the consequence of that legislation be reflected in a reduced uplift for previous convictions.
[35] Overall, I consider a seven-month uplift, which equates to just over 20 per cent is appropriate to reflect your previous convictions, that prior offending being so similar to your current offending.
Mitigating factors personal to the offender
[36] I now turn to consider factors that are personal to you that might mitigate your offending.
[37] Mr Starling and Ms Wham on your behalf seek a further 10 per cent reduction to recognise your remorse, your assistance in the investigation and your own childhood abuse. Ms Lancaster, in her oral submissions today, has acknowledged that a small discrete discount for remorse might be justified having regard to the fact that you self-reported this offending.
[38] As regards remorse, I do find that there is a theme within the health assessor’s reports that suggests you have at least at times regarded this prosecution as being unfair to you, and you have a tendency to divert responsibility. I do not regard your remorse as being at a level that of itself would warrant a discrete discount over and above the discount I will allow for your guilty plea. But I do acknowledge that you self-reported. That has been confirmed today and does indicate to me that you were very conscious that you had committed an offence that would lead to you being prosecuted. I think the prosecution was inevitable due to the actions of the victim’s uncle and the steps that he had taken. I do recognise and sympathise with what you
12 Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.
endured as a young person but, in my view, that does not warrant a discrete discount when sentencing you for having offended in such a similar vein on a third occasion.
[39] Overall, having regard to the factors that are raised on your behalf I will allow a further discrete discount of one month or just under five per cent.
Guilty plea
[40] You pleaded guilty promptly and as acknowledged by the Crown you are entitled to a full 25 per cent reduction.
[41]That leads to an overall finite sentence of 31 months’ imprisonment.
Minimum period of imprisonment (MPI)
[42] As I have explained Mr White, because you have committed a second strike offence any finite sentence that I impose on you must be fully served. I do not have any discretion in that matter. I therefore do not fix a minimum period of imprisonment (MPI).
[43] Pursuant s 86C(6) of the Sentencing Act 2002, I am obliged nevertheless to state with reasons the minimum period of imprisonment I would have imposed under s 86 of the Act. But for the application of the mandatory second strike legislation I can indicate, Mr White, that I would have imposed an MPI of 20 months which equates to about two-thirds of your sentence. I would have imposed that MPI in order to hold you accountable, to denounce and deter your conduct and to protect the community. In my view, it would not have been appropriate for a third tranche of similar offending for you to have been eligible for parole after one-third of your sentence.
Preventive detention
[44] Having determined the finite sentence, I then turn to consider the arguments regarding preventive detention. That sentence is an option today because you have committed a qualifying offence.13 I may only sentence you to preventive detention if
13 Sentencing Act 2002, s 87(2)(a).
I am satisfied you are likely to commit another qualifying offence if you are released on parole after a finite sentence.14
[45] The primary consideration I must take into account is the protection of the community. The purpose of preventive detention is not to punish you but to protect the community from persons who pose a significant and ongoing risk to the safety of its members.15 Determining in a particular case whether it is appropriate for that sentence to be imposed involves an assessment and evaluation of the risk that you would pose on release. The Sentencing Act requires that I take into account five factors:16
(a)any pattern of serious offending disclosed by your history;
(b)the seriousness of the harm caused by the 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.
Health assessor reports
[46] In coming to a decision whether to impose a sentence of preventive detention, the Court is required to have regard to reports from at least two health assessors about the likelihood of you committing another qualifying offence.17 I have received and considered reports from Margot Neame and from Dr Simone McLeavy. Those reports were prepared last year following your guilty plea to this offence.
14 Sentencing Act 2002, s 87(2)(c).
15 Sentencing Act 2002, s 87(1).
16 Sentencing Act 2002, s 87(4)(a) – (e).
17 Sentencing Act 2002, s 88(1)(b).
[47] Ms Neame is a registered clinical psychologist. She interviewed you on three separate occasions for a total period of four hours. Dr McLeavey is a consultant psychiatrist with the Canterbury District Health Board. She interviewed you on three occasions, twice in person, over a period of three hours.
[48] I have also had read the reports prepared for the application for an extended supervision order (ESO) in 2020. Those are reports from:
(i)Paul Carlyon dated 27 November 2018;
(ii)Ghazi Metoui dated 5 February 2020; and
(iii)Ruchika Talwar dated 13 May 2019.
Is there a pattern of serious offending?
[49] I must consider any pattern of serious offending disclosed by your history. The frequency and duration of your past and present offending is relevant as is the time that has elapsed since your last offending. There is undoubtedly, in your case Mr White, a clear pattern in your offending. You offend against vulnerable young males. You offended on six occasions over a 17-month period in 2008 when you were only
16. You offended again, while subject to a sentence of intensive supervision, on two occasions in 2012. That offending did not come to light until 2017 when you were sentenced to two years, two months’ imprisonment. The offence for which you are to be sentenced today was committed in June 2021. There has been a nine-year gap since the last offending for which you have been prosecuted. Contextually that is significant, but it is of concern that the very nature of your most recent offence is so similar to your prior offending. You have previously admitted to other similar offending for which you have not been charged.
[50] Make no mistake, Mr White, your offending is serious and your history justifies a finding of a pattern of serious sexual offending.
What is the seriousness of the harm?
[51] I have regard to the victim impact statement. You should know only too well from your own personal experience of the harm that is caused to victims of sexual abuse. It is difficult to quantify and articulate but the psychological and psychiatric harms that are caused to victims by sexual abuse can be longstanding and severe.
Do you have a tendency to commit serious offences in the future?
[52] The experts have prepared reports to assist the Court to understand the risk of you offending in the future. Ms Neame assessed your risk of re-offending using actuarial tools and concluded your static risk score on the Automated Sexual Recidivism Scale-Revised was medium to low of further sexual offending. That score reflects your previous offending but does not take into account the current offending. Your dynamic risk on the Violent Risk Scale:Sexual Offence Version was level IVb, or well above average. Ms Neame describes you as having a very high level of sexual deviancy and presenting with psychopathy personality traits, putting you in a group with high or very high risk of sexual recidivism.
[53] The report from Dr McLeavey acknowledges the difficulty in predicting future offending. She describes that prediction of future events as being unreliable from a scientific perspective. She considers you have a combination of risk factors that corelate to a “potential increased risk of sexual violence”. Dr McLeavey considers you to pose at least a moderate risk of further sexual offending and opines that without intervention you would be likely to remain at a high risk of reoffending in a sexual manner.
[54] The other report writers shared a view that you pose either a high (Carlyon and Talwar) or a medium (Metoui) risk of sexual reoffending.
[55] As Ms Lancaster has highlighted in her written submissions, beyond a pure risk assessment the health assessors have made observations that are also relevant to my determination.
[56]Ms Neame has reported:
(a)You have a clear pattern of sexual offending across time with a victim profile that has remained relatively stable, including pre-pubescent or post-pubescent male victims who you have viewed as vulnerable to manipulation. She notes that the sanctions you have received have not yet provided a sustainable deterrent for your offending.
(b)During the latter stages of treatment you expressed concern regarding openly disclosing your personal experience of sexual abuse and, as treatment progressed, you were noted to acknowledge your “offence process” in a more realistic manner, including increased responsibility.
(c)You are yet to acknowledge the significance of your recent behaviour, including early warning signs and your engagement in behaviour or proximity to behaviour that places yourself and others at risk.
(d)You may benefit from further treatment around developing insight into current sexual deviance and links to prior patterns of behaviour.
[57]Dr McLeavey observed:
(a)You have a predisposition for sexual offending which is emerging as a significant theme.
(b)You have always pleaded guilty to offending but you do not consider yourself to be a sexual offender, instead attributing your wrongdoing primarily to substance abuse and unresolved issues relating to your own sex abuse history.
(c)You do not present with any major mental disorder but do meet the criteria for a diagnosis of personality disfunction, probable antisocial personality disorder traits evidenced by a consistent and enduring pattern of failure to conform to social norms associated with repeated behaviours leading to your arrest.
(d)It is likely you would meet the criteria for alcohol abuse.
(e)While you initially stated you did not consider that you would benefit from sexual offending treatment, having regard to the impact that position might have on your sentence, you have expressed a preparedness to attend a further treatment programme, acknowledging that participation in such a programme would be beneficial.
[58] Mr White, overall, in my assessment there can be little doubt, based on what the health assessors tell me, that you have a tendency to commit a serious offence in the future. You present, at the very least, a moderate to high risk of future serious sexual offending and particularly absent successful engagement in specific treatment to address your longstanding sexual deviancy.
Is there an absence of efforts to rehabilitate?
[59] Ms Lancaster submits that you have had ample opportunity in the past to address the root causes of your offending and to rehabilitate, but you have failed to do so. There are a number of references throughout the reports that suggest you have failed to fully embrace responsibility for your offending.
[60] You commenced offence-focussed treatment in the community STOP programme in 2011 but you breached the conditions of that programme when you contacted a young person. You then engaged in 20 individual counselling sessions with a psychologist in the period 2012 to 2013. During the term of imprisonment that you commenced in June 2017, you completed what was then known as the Kia Marama Special Treatment Unit Rehabilitation Programme and, on completion, you engaged with a Kia Marama graduates group.
[61] Notwithstanding, you have engaged in further offending that bears all the hallmarks of your prior offending. It follows that your apparent active engagement in and successful completion of, past treatment has not prevented you from reoffending.
[62] Ms Lancaster, perhaps not surprisingly, submits that this indicates an absence and failure of efforts by you to address the causes of your offending and weighs heavily in favour of preventive detention.
[63] Your counsel, on the other hand, submit that you are motivated to undertake treatment albeit, I acknowledge, that that may be motivated by your concern to avoid a sentence of preventive detention.
[64] Standing back and looking at your history I do accept that you have made past efforts to rehabilitate. I accept that they were genuine. What I must decide is whether you should be given the opportunity to prove that you can engage successfully in further treatment. The health assessors agree that you may benefit from further treatment. What is more difficult to assess is the prospect of you embracing that treatment so as to break the current cycle of sexual offending.
Is a lengthy determinate sentence preferable?
[65] There is a general principle under our law, Mr White, that a lengthy determinate sentence is preferable if it provides adequate protection for society. I have to balance the risk of you reoffending against the need to protect the community. If I were to impose a sentence of preventive detention, that would ensure that you would not be released until there was a degree of confidence that the safety of the community would not be placed at risk. It would also ensure that if you were released and you engaged in high-risk behaviour you could be promptly recalled to prison.
[66] In assessing the risk that you might pose on release from a finite sentence, I do think it relevant that an Extended Supervision Order (ESO) may be imposed on release from prison if the authorities at that time consider you present an ongoing risk to the safety of the community.
[67] As you will be well aware from your past experience with an ESO, if you do not make satisfactory rehabilitative progress, Corrections may apply to the Court for that order. The report of Ms Neame records the Corrections unsuccessful application in February 2020 to the District Court for an ESO.
[68] An ESO 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 an offender to maintain motivation to engage in treatment but might permit a finding that a finite
sentence will appropriately protect the community. An ESO has been described as a “potential safety valve”18.
[69] As I raised with counsel, I do not regard the finite sentence that I have indicated that I would otherwise impose as lengthy. However, I am of the view that the likelihood of an ESO for an offender in your circumstances, that is one who will be required to serve the full term of a finite sentence, is an important consideration.
[70] It has been accepted that in finely balanced cases, the possibility of an ESO being imposed can tip the scales against preventive detention, even if the availability of an ESO should not be seen as a replacement for preventive detention.19
The competing cases
[71] The Crown submits that the imposition of a finite sentence will not alleviate the future risk you pose of committing serious sexual offences, and the comparatively short finite sentence that would otherwise be imposed is insufficient to protect the community.
[72] On the other hand, Ms Wham stresses the fact that you have consistently promptly entered guilty pleas and you have engaged positively, even if not successfully, with recommended treatments. The defence submit that further treatments and interventions would be available to you whilst serving a finite sentence that would address the risk you pose, and that, coupled with the likelihood of an ESO provides an assurance of the protection of the community.
Analysis
[73] As has been submitted by the Crown in their written submissions, Mr White, preventive detention is not a sentence of last resort.20 But it is undoubtedly a very serious sentence to impose. I have carefully considered all the cases that have been discussed, the various reports that have been filed and the submissions advanced by
18 R v Mist [2005] 2 NZLR 791, (2005) 21 CRNZ 490 at [101].
19 R v Parahi [2005] 3 NZLR 356, (2005) 21 CRNZ 754.
20 R v Evans [2018] NZHC 69 at [27].
counsel. On balance, I have decided that your case does not call for a sentence of preventive detention.
[74] I am conscious of the fact that your first offending occurred when you were very young, aged only16 or 17 years old. There were six offences committed on the same victim over a 17-month period. I consider that offending must be viewed in the context of a young person who was no doubt struggling with their own sexuality. It is of a real concern that you reoffended towards the end of the 18 months’ sentence of intensive supervision, when you were aged 19 years. That offending did not come to light until many years later. When you committed the current offence in June 2021 you had not reoffended, for a matter which has led to a prosecution, for a period of nine years.
[75] I do find that you have willingly engaged in treatment in the past and although you have failed to fully accept responsibility for your sexual deviancy and therefore failed to fully embrace treatment, I am optimistic that you will do so in the future. I am comforted by the fact that you self-referred this particular offending. Future treatment for you will necessarily address your sexually deviant behaviours but also alcohol abuse. Whilst alcohol, Mr White, can never excuse criminal offending, for you I have no doubt alcohol is a notable destabiliser and gives rise to sexual disinhibition.
[76] I regard the availability and the likelihood of an ESO as being a tipping point in this case.
[77] But you need to be aware, Mr White, that even putting completely to one side the three strikes legislation and the warning of the severe consequences of further serious offending that I gave to you at the outset of this sentencing, you are at grave risk of being sentenced to an indeterminate sentence of imprisonment if you do not take responsibility for your actions and ensure that you only direct your sexual attention towards consenting adults.
[78] Where to from here is very much in your hands. You have the support of your adoptive parents. You have demonstrated that you have the capacity to apply yourself
to your employment and to your studies. I am therefore of the view you do have the tools to make the changes necessary in your sexual behaviours.
Sentence
[79] Mr White, can you please stand. On the charge of sexual connection with a young person aged 12 – 16 years I sentence you to a term of imprisonment of two years and seven months’ imprisonment. You will serve that sentence without parole and I again remind you that you are on a final strike warning. You will now be served with the final warning notice.
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Eaton J
Solicitors:
Crown Solicitors Office, Raymond Donnelly & Co,
Copy to:
Michael Starling, Barrister, Christchurch
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