R v Wilson
[2015] NZHC 1603
•9 July 2015
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-070-000461 [2015] NZHC 1603
THE QUEEN
v
ANDREW TIMOTHY WILSON
Hearing: 9 July 2015 Appearances:
G C Hollister-Jones for Crown
W Nabney for DefendantJudgment:
9 July 2015
SENTENCING NOTES OF GILBERT J
R v WILSON [2015] NZHC 1603 [9 July 2015]
Introduction
[1] Mr Wilson, you appear for sentence having pleaded guilty to the following charges involving two victims:
Victim 1
(a) Two charges of sexual violation by unlawful sexual connection.
(b)One representative charge of sexual violation by unlawful sexual connection. This relates to offending over a period of nearly six years from January 2005 to October 2010.
These offences each carry a maximum penalty of 20 years’ imprisonment.1
Victim 2
(c) One charge of indecent assault on a child under 12 years. The
maximum penalty for this offence is ten years’ imprisonment.2
(d)One charge of attempted abduction for the purposes of sexual connection. The maximum penalty for this offence is seven years’ imprisonment.3
[2] You initially appeared for sentence in the Tauranga District Court on
18 December 2014. Judge Harding declined jurisdiction on the grounds that you should be considered for a sentence of preventive detention. The requisite reports from appropriate health assessors have now been prepared assessing the likelihood of you committing further qualifying sexual or violent offences and you have had a full opportunity to prepare submissions on sentence. I acknowledge the thorough and careful submissions that have been presented by the Crown and by your counsel,
Mr Nabney.
1 Crimes Act 1961, ss 128 and 128B
2 Crimes Act 1961, s 132(3).
3 Crimes Act 1961, s 208(b), 72(1).
[3] As you will appreciate, the outcome for you today will inevitably be either a lengthy determinate sentence of imprisonment or a sentence of preventive detention. Either way, a minimum period of imprisonment will be required.
[4] I will now summarise the process I intend to follow in reaching this determination. I will start by setting out the facts of the current offending. I will then summarise the harm that your offending has caused with particular reference to the victim impact statement that has been prepared on behalf of Victim 1. I will review your previous convictions and the facts giving rise to those. I will summarise the findings of the two clinical psychologists who have prepared reports for the purposes of sentencing today. I will discuss the pre-sentence report, the purposes and principles of sentencing that I consider are most relevant to your situation. I will then summarise the submissions for the Crown and for the defence. Following this, I will go through the exercise of determining an appropriate sentence were I to impose a determinate sentence. Finally, I will consider whether a sentence of preventive detention should be imposed. Having reached my conclusion on this, I will ask you to stand while I sentence you. You may remain seated until then.
Facts
[5] It is necessary for me to set out the facts in some detail. What follows has been taken directly from the Crown summary of facts which you have agreed accurately summarises the events giving rise to the charges to which you have pleaded guilty.
[6] For a period of approximately six years, between January 2005 and October 2010, you were in a relationship with Victim 1’s mother. Victim 1 was aged between six and 11 at this time and lived with her mother and her brother. You did not live fulltime with the family but stayed overnight on occasions at their home.
[7] The first charge of sexual violation relates to an incident when Victim 1 was six. You slept with her in a small tent set up in the lounge of the family home. At some point in the evening you suggested that because it was hot you should each take off your clothes. After doing so, you began to kiss Victim 1 on the lips and rub her leg with your hand. You then began to stroke the outside of Victim 1’s vagina
and penetrated her vagina with your fingers. You continued even after Victim 1 told you to stop. Victim 1 rolled over onto her stomach to stop the touching. After this you both went to sleep.
[8] The second offence arises out of an incident when Victim 1 was having a bath when she was six or seven years old. You entered the bathroom, locked the door and took off your clothes. You then got into the bath with her. You put your head between Victim 1’s legs and kissed and licked her vagina. You also told Victim 1 that she could do that to you anytime she wanted.
[9] The third charge is a representative charge and relates to acts that took place over the period from January 2005 to October 2010. You often gave Victim 1 piggy back rides during this period. After she jumped up onto your back you would reach around and hold her bottom and, quoting what is said in the summary of facts, you would “fiddle” with her vagina with your fingers. You would also pull her pants and underwear aside so that you could insert your fingers into her vagina. You did this many times.
[10] Throughout this six year period, you frequently kissed Victim 1 on her lips and felt her breast and vaginal area. This happened on almost every occasion you visited their home.
[11] On other occasions, you would collect Victim 1 from school early and take her to nearby parks. Once there, you would ask her to play games such as “Let’s see how long we can kiss”. You would kiss her, inserting your tongue into her mouth. You would rub her upper legs, breast area, and genitalia over the outside of her clothing. You told her not to say anything to her mother because she would get angry.
[12] On one occasion, you came to the home in an intoxicated state and masturbated in front of Victim 1. You asked her “do you want to see me come?” before ejaculating over the couch in the lounge. You masturbated in front of her at her home on a number of occasions.
[13] The last two offences relate to events on 8 February 2014 involving Victim 2. At about 4.00 pm you rode your bicycle to a local park carrying with you a small bag containing alcohol. You sat and drank this near a playground area, remarking to another male that you did not have a “missus” but wished you did as it would be “great to put your hand up a girl’s leg”.
[14] You then walked over to where some children were playing in the park, all of whom were strangers to you. You approached a young boy sitting in a car and offered to push him around on your bicycle. The boy agreed and you proceeded to push him while placing your hand between the seat and the boy’s bottom and pubic area. Several witnesses, concerned by your behaviour, called the police. The young boy left the park with his parents before the police arrived. His identity remains unknown and no charges were laid in relation to that incident.
[15] After the young boy left, you turned your attention to Victim 2, a six year old girl playing in the park who was also unknown to you. You enticed her to play on a flying fox. As you pushed her along you put your hand on her bottom and reached around to her front and placed your hand on her pubic area. This gave rise to the fourth charge.
[16] You then took Victim 2 off the flying fox and began to lead her, by the hand, away from the park. One of the adult witnesses became concerned for Victim 2’s safety and ran over to pick her up and take her away from you. She left Victim 2 with another adult while she went to locate the child’s parents. You then approached that adult and several other witnesses and claimed that it was “all good” and that “you were just taking her to show her some sights”.
Victim impact statement
[17] The victim impact statement was prepared by a counsellor who has 38 years’ experience specialising in the field of sexual assault. Victim 1 was referred to this counsellor when she was 13 because of concerns about her serious self-harming and truanting behaviours. The counsellor has been working with her ever since. The following extracts from the report demonstrate the extreme harm that your offending has caused, and will continue to cause, Victim 1 and her family:
[Victim 1] became very confused at a young age about who she could really trust. As a consequence she did not fully trust anyone. She found it very hard to form childhood friendships, isolated herself from her peers and did not have other children over to her house to play. Her formative years in terms of normal socialisation and learning how to form trusting and bonding friendships were grossly negatively affected.
…
[Victim 1] informed me that at around the age of 10 years she was stalked by [you]. [You] used to watch and wait for her outside her primary school … [you] followed her on [your] push bike several times from her primary school to her home. As a result of this action [she] felt very intimidated and scared. In conjunction with her stepfather it was decided that [Victim 1] would attend [a college some distance away] for her secondary schooling … This was an attempt to put some distance between her and [you]. However despite this action, she remained scared and hypervigilant (on guard) looking out for [you] constantly. As a result of living like this she became extremely fatigued, anxious and unable to fully relax. [Victim 1] described being on the school bus … returning home from school at aged 13 years, when [you] got on the bus. Fortunately she was able to hide from [you] and [you] did not see her on this occasion. It was around this time that she started missing periods at school and eventually truanting altogether as she did not feel safe anywhere.
[18] Your offending has seriously affected Victim 1’s education and this will have
lasting consequences for her. Again, I quote from the report:
At the time I first began working with [Victim 1] she was experiencing acute and severe educational deficits. Due to not being able to concentrate, the symptomology she was struggling with prevented her from being able to trust people and in particular adult men. She began to truant the classes taught by male teachers. This action courted considerable negative feedback from teachers about her behaviours and attitudes. Her grades were poor and she was failing in all subjects.
As [she] was unable to sleep at night, when she did finally make it to school, she fell asleep during classes and was unable to concentrate for any length of time. This behaviour then contributed to a vicious cycle which involved teachers, her school Deans and eventually the principal of the school she attended.
The abovementioned factors led to [Victim 1] thinking she was “stupid” (her words) and unable to study or absorb any information. This in turn eroded her true sense of self and contributed to poor self-esteem and self-loathing.
[19] The psychological and emotional impact of your offending cannot be underestimated. Victim 1 has suffered extreme fear, nightmares, debilitating flash- backs and trauma replay of the abuse. There have been times when she has felt the need to keep watch and stay awake all night in case you come after her. At times she
has resorted to extreme self-harming behaviours and has even attempted suicide. The counsellor considers that Victim 1 may well require ongoing counselling and support throughout her adult life.
[20] The counsellor also describes the severe impact your offending has had on Victim 1’s family. She says that the relationship between the victim and her mother has been grossly affected. She also describes the financial cost to the family including for counselling, medical practitioners, community adolescent mental health services, specialist psychologists, lawyers, and self-defence classes.
[21] There is no doubt that your offending has caused very serious harm. It appears from the psychologists’ reports and the pre-sentence report from the probation officer, to which I will refer shortly, that you do not appreciate just how serious your offending is and the extent of the harm that you have caused.
Previous convictions
[22] You have a number of previous convictions, seven of which are particularly relevant for the purposes of sentencing you today:
(a) August 2005 – indecent assault on a girl under 12. This offending also involved Victim 1, when she was six years of age. The incident occurred while you were staying overnight and sleeping in her bed. You woke in the night, pulled the victim’s pyjama bottoms down, parted her legs and kissed her twice on her vagina while she was sleeping. You were sentenced in January 2006 to 400 hours’ community work and 18 months’ supervision for this offending.
(b)January 2011 – offensive behaviour. This offending involved another six year old female who was in a video store with her young brother. After playing with the young girl’s hair you crouched down with the children for a period of about five minutes and began to hug and kiss the girl putting your hand around her waist. You were fined $250 for this offending in March 2011.
(c) August – November 2011 – two offences of sexual grooming of young persons and three offences of committing an indecent act on a girl under 12. The victims of this offending were twin sisters who were ten years old at the time. Having befriended the girls’ mother, you went on an afternoon excursion with the girls and their mother following which you went to their home. During the course of the evening you kissed the victims on their lips and faces numerous times. You told them that they had nice bodies and should consider nude modelling and putting nude photographs of themselves on internet websites. You offered to take photographs of them naked and assist them to establish a nude modelling website. You also offered to show them pictures of other children posing in the nude so they could see what poses to adopt. When the girls’ mother’s back was turned you approached one of the girls from behind and embraced her with both of your arms around her body. You moved one hand underneath her pyjama top, against her skin and rubbed her stomach before moving your hand to rub near her chest. Later, you presented yourself at their bedroom door wearing only your underwear and asked if you could get into bed with them. You were sentenced in December 2012 to
16 months’ imprisonment for this offending and given a first strike warning.
First strike warning
[23] The offending against Victim 1 for which you are now to be sentenced took place before this warning was given and the charge of abduction in relation to the Victim 2 was an attempt and therefore outside the scope of the three strikes regime. This means that you will not be required to serve the full end sentence in relation to these offences without parole. However, you will be required to serve the sentence that I impose on you for indecently assaulting Victim 2 without parole. This will not have any practical effect because the sentence for that offence will be significantly less than the penalty imposed for your offending against Victim 1.
[24] However, the fact that you offended against Victim 2 after you were given your first warning is significant. You were warned orally and in writing by the Judge in December 2012 that if you committed any further serious violent offences after that date, you would be required to serve any sentence of imprisonment without parole. Despite this warning, and despite the treatment that you received throughout
2013, you offended against Victim 2 in February 2014. This was one month after you were granted bail for your offending against Victim 1.
Psychologists’ reports
[25] I have had the benefit of reading the reports prepared by two clinical psychologists, Sonia Shephard and Dr Joseph Sakdalan.
[26] In her substantive report prepared in December 2014, Ms Shephard reviews eight earlier reports prepared by various psychologists. The first of these was prepared in 2006 following your conviction for indecent assault in January of that year. You were seen by a psychologist on 12 occasions between 12 April 2006 and
31 July 2006. You were also offered treatment in the SAFE programme to address your sexual offending but you were unable to attend that course because there were not enough participants.
[27] In 2007, you attended three treatment sessions with another psychologist. These focused on identifying early warning signs associated with your offending and assisting you to develop coping strategies to manage high risk situations.
[28] In 2011, following your offending of a sexual nature involving the six year old girl in the video shop, you attended three further treatment sessions with yet another psychologist. This programme also focused on identifying offence-related risk factors and coping strategies.
[29] After you were imprisoned in December 2012 for your sexual offending against the ten year old twins, you attended 11 treatment sessions to address your sexual offending. These sessions were designed to help you learn skills that would keep you safe from further sexual offending. This treatment ended after you were remanded in custody for the present sexual offending in February 2014.
[30] Ms Shephard reports that you recall having sexual thoughts from a very young age with an early interest in young females. You disclosed historical undetected sexual behaviour which involved sexually touching female peers. You also disclosed touching a three year old female when you were 15 years old. That was 27 years ago and involved digital contact with the victim’s genitalia and oral contact with her vagina. You have acknowledged having deviant sexual fantasies relating to young girls throughout your life.
[31] Ms Shephard notes that your present offending, involving two different victims over four distinct time periods, together with your prior convictions for sexual offending, indicates a marked and long-standing predilection for sexual behaviour with pre-pubescent females. Using various tests, she assesses you as having a high risk of sexual recidivism. This risk estimate is considered to have predictive reliability over a ten year period and was arrived at using the RoC*Rol actuarial measure, the Automated Sexual Recidivism Scale and the STABLE 2007 and ACUTE 2007 assessments of dynamic factors.
[32] Ms Shephard observes that the treatment you have received to date has not been effective and you continued to re-offend in a serious manner. She says that intensive treatment is required to address your sexual offending against children and that you also need specialist treatment for your long-term harmful use of alcohol.
[33] You do not accept full responsibility for your offending and this may be one of the reasons why treatment has not succeeded in your case. Ms Shephard states:
It appears that Mr Wilson displays a well-entrenched pattern of avoiding or limiting his responsibility for his offending. He excuses and minimises his offending by blaming others and external circumstances for his offending behaviour. He also appears to minimise the harm done to victims and uses cognitive distortions to justify his offending behaviour. As well, Mr Wilson appears to deny some aspects of his offending behaviour.
I will return to this topic later.
[34] Ms Shephard prepared an addendum to her report in June of this year. This followed the discovery in your prison cell of explicit drawings of pre-pubescent females you had created. You were also found with a collection of magazine images
of young females and admitted masturbating to this stimuli. Ms Shephard’s view is that this confirms the enduring nature of your predilection for sexual contact with pre-pubescent females and the high risk of future sexual offending.
[35] Dr Sakdalan’s report is dated 29 May 2015 and specifically addresses the factors listed under s 87 of the Sentencing Act which the Court is required to take into account when considering whether or not to impose a sentence of preventive detention. Dr Sakdalan confirms what Ms Shephard outlines in her report. He notes that you have a tendency to minimise or rationalise your offending but suggests that you have some insight into it. He also records that you have not had an adequate opportunity to engage in intensive sex offenders’ treatment programmes or to address your alcohol problems. He concurs with Ms Shephard’s opinion that there is a high risk that you will sexually re-offend in a similar manner following your release into the community. He notes that there is a high degree of convergence in this prediction with the instruments he used for his assessment, namely Static 99 and STABLE 2007.
Pre-sentence report
[36] You are a 42 year old single man with no children.
[37] Alcohol is a major issue for you. You have four alcohol-related convictions including three for driving with excess breath alcohol at high levels. You acknowledge that you are a binge drinker and find it very difficult to stop once you begin drinking. This is a significant risk factor because it acts as a disinhibitor to your sexual offending.
[38] The probation officer also notes your failure to acknowledge the extent and seriousness of your sexual offending. You told the probation officer that you kissed one of the victims on her bottom “as a joke” and you attempted to dismiss other serious offending as inconsequential by claiming that you did not know the proper way to piggy back someone. You claimed that all you did was to assist the victim on the flying fox and that these incidents had been “blown hugely out of proportion”. You stated that “there was never any intention of committing any sexual offending”.
[39] The probation officer notes your history of sexual offending against children which has escalated over the four year period prior to your arrest for the present offending. The probation officer also considers that you are at high risk of inflicting harm on others.
Purposes and principles of sentencing
[40] In sentencing you today I have regard to the purposes of sentencing including the need to hold you accountable for the harm you have caused to the victims and to the community by your offending and the need to promote in you a sense of responsibility for, and an acknowledgement of, that harm. The sentence must be sufficient to denounce your conduct and to deter you and others from committing this type of offending. I must consider the need to protect the community from you. I must also consider the need to impose a sentence that will assist your rehabilitation and eventual reintegration into the community.
[41] I have regard to the principles of sentencing set out in s 8 of the Act, including the gravity of your offending and the degree of your culpability, the effect on your victims and the desirability of imposing a sentence that is consistent with sentences imposed on others for similar offending. I must impose the least restrictive outcome that is appropriate in the circumstances.
Submissions
Crown submissions
[42] The first step in the sentencing process is to establish an appropriate starting point for the lead offence which, in this case, is your offending against Victim 1. The Court of Appeal’s decision in R v AM provides guidance on appropriate sentencing levels in cases such as this.4 The Crown submits that your offending falls within band 3 of the USC sentencing bands identified by the Court of Appeal for which a starting point of between nine and 18 years’ imprisonment will be appropriate.
[43] The Crown identifies the premeditation, the vulnerability of the victims and the harm done to them, the scale of the offending and the breach of trust involved as aggravating factors. The Crown argues that the frequency and range of the offending, which occurred over a period of six years, puts this case in the lower to middle end of band 3, requiring a starting point in the range of 11 to 12 years in relation to Victim 1.
[44] The Crown submits that this starting point needs to be uplifted to account for the offending against Victim 2. If you were being sentenced for these offences alone, a starting point in the two year range would be warranted. However, bearing in mind totality considerations, the Crown submits that an uplift of 12 months is appropriate.
[45] The Crown also submits that there should be a further uplift of two years’ imprisonment to take account of your prior convictions for sexual offending and the fact that you were on bail for the offences relating to Victim 1 when you committed the offences against Victim 2.
[46] The Crown accepts that you should receive a modest discount for your late guilty plea.
[47] The Crown submits that, if a determinate sentence is imposed, a minimum period of imprisonment of 60 per cent of the final term is warranted. However, the Crown’s primary submission is that a sentence of preventive detention is required in order to protect the community given your high risk of re-offending in a similar manner. The Crown submits that a minimum period of six years’ imprisonment is appropriate in this case.
Submissions made on your behalf
[48] Mr Nabney acknowledges that this case falls within band 3 of the USC sentencing bands identified in R v AM. However, he argues that it is at the lower end of this band having regard to the level of offending. He suggests that your offending is comparable to that in R v K, another decision of the Court of Appeal.5
[49] Mr Nabney accepts that an uplift of 12 months is warranted for the offending against Victim 2, bearing in mind the totality principle.
[50] Mr Nabney also accepts that there should be an uplift to reflect your prior sexual offending but submits that this should be limited to six months’ imprisonment. He argues that a ten per cent discount for your guilty plea should be allowed.
[51] Mr Nabney submits that although a minimum term of imprisonment should be directed, this should be set at 50 per cent of the end sentence. He submits that this will allow sufficient time for you to undertake any courses required to address the causes of your offending.
[52] Mr Nabney argues that a sentence of preventive detention is not required and should not be imposed. He points out that you have not served a term of imprisonment longer than 16 months. As a result, you have not had the opportunity to engage in intensive sex offender treatment or to address your alcohol problem. Mr Nabney says that you are willing to participate in such treatment and have now accepted responsibility for your offending by pleading guilty. He submits that this indicates that your risk of re-offending is significantly reduced. Mr Nabney also notes that an extended supervision order after release is likely and this will further reduce the risk of re-offending.
[53] For these reasons, Mr Nabney submits that a finite sentence with a minimum period of imprisonment is the appropriate sentencing response.
[54] I now consider what sentence would be appropriate if a determinate sentence was to be imposed.
Starting point
[55] I take the offending against Victim 1 as the lead offence. I have regard to the following culpability factors identified by the Court of Appeal in R v AM:
(a) Planning and premeditation
This offending, which continued over a period of nearly six years, involved a high degree of planning and premeditation. You repeatedly, and in a calculated way, created situations where you could offend against this victim.
(b) Vulnerability of the victim
Victim 1 was clearly vulnerable because of her extreme youth. She was only six when you started to offend against her.
(c) Harm to the victim
I have already summarised the very high degree of psychological harm you have caused Victim 1. As noted, the impact on her cannot be understated. She may well suffer for the rest of her life.
(d) Scale of the offending
Victim 1 says that the abuse occurred almost every time you visited. Your offending was frequent and persisted for a period of nearly six years and only stopped when your relationship with the victim’s mother terminated.
(e) Breach of trust
You assumed a position of responsibility in relation to Victim 1, akin to that of a stepfather. Despite being convicted of indecent assault against Victim 1 in 2005 when she was only six, you were allowed back into her life and continued to offend against her for a further five years. Your offending can only be described as involving a gross breach of trust.
[56] There are no mitigating features of your offending.
[57] Having regard to these factors and the comparable cases I have considered, which I will reference in my sentencing notes, I consider that your offending against
Victim 1 falls at the lower end of band 3 and that a starting point of nine years six
months’ imprisonment would be appropriate.6
Uplift for offending against Victim 2
[58] I agree with counsel that an uplift of 12 months’ imprisonment would be required to reflect the offending against Victim 2, taking into account totality considerations. This would bring the starting point for the totality of the offending to ten years six months’ imprisonment.
Adjusting the starting point
Uplift for personal aggravating factors
[59] Your previous sexual offending is a significant aggravating factor, particularly given that your conviction in January 2006 was for indecent assault on Victim 1 and you then continued to offend against her for five more years. Your offending against Victim 2 occurred in February 2014, after you had been given your first strike warning in December 2012 and after you had been released on bail in January 2014 in relation to your offending against Victim 1.
[60] I consider that an uplift of 18 months’ imprisonment is required to reflect
these two aggravating factors/features.
Discount for guilty plea
[61] Your guilty plea came very late. The jury had been empanelled and the Crown had opened. The jury was discharged following receipt of a note from a juror. You pleaded guilty the following day.
[62] Nevertheless, your guilty plea has spared your victims the ordeal of having to give evidence. It also evidences a belated acknowledgement of some wrongdoing. I
consider that a discount of ten per cent should be allowed for your guilty plea.
6 R v K, above n 5; R v P 10/9/95, CA86/95; R v Robinson [2014] NZHC 2827; Aleki v R [2014] NZCA 473; R v L [2014] NZHC 2471; R v Joe [2013] NZHC 1047; Rua v R [2014] NZCA 599; Ratana v R [2013] NZCA 109.
[63] This would bring your end sentence to ten years and ten months’
imprisonment.
Minimum period of imprisonment
[64] Section 86 of the Act provides that the Court may impose a minimum period of imprisonment if it is satisfied that the period that would otherwise be applicable under the Parole Act 2002 would be insufficient for the purposes of holding you accountable for the harm done to the victim and the community, denouncing your conduct, deterring others from committing similar offences and protecting the community from you. All of these factors apply in this case. I consider that a minimum period of imprisonment of five years, five months is warranted.
Preventive detention
Approach to Preventive Detention
[65] Preventive detention is not punitive;7 its purpose is to protect the community from those who pose a significant and ongoing risk.8 It is not a sentence of last resort, although its imposition must be carefully considered.9 A finite sentence is preferred when this will provide adequate protection to the community.
Pre-conditions to preventive detention
[66] Section 87(2) stipulates three pre-conditions for preventive detention. However, the existence of these conditions does not mandate a sentence of preventive detention; its imposition remains a matter of discretion.10 The conditions are as follows:
(a) a person is convicted of a qualifying sexual or violent offence;
(b)the person was 18 years of age or over at the time of committing the offence; and
7 R v C [2003] 1 NZLR 30 (CA) at [5]-[7].
8 Sentencing Act 2002, s 87(1), R v Parahi [2005] 3 NZLR 356 (CA) at [85].
9 R v C at [6].
10 At [6].
(c) the Court is satisfied that the person is likely to commit another qualifying offence if the person is released at the sentence expiry date.
[67] The first two conditions are clearly satisfied. Only the third requires assessment.
[68] In considering whether to impose a sentence of preventive detention the
Court must have regard to the factors set out in s 87(4) of the Act:
(a) any pattern of serious offending disclosed by the prisoner’s history;
(b)the seriousness of the harm to the community caused by the offending;
(c) information indicating a tendency to commit serious offences in the future;
(d) the absence or failure of efforts by the prisoner to address the cause(s)
of the offending; and
(e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[69] The case law sets out several other relevant factors. These include the length of the finite term that would otherwise be imposed; whether the offender was on notice of the possibility of a sentence of preventive detention, including by serving a lengthy sentence; whether the offender has had the chance to undergo therapy; and the possibility of an extended supervision order at the conclusion of the final sentence.11
[70] The assessment of the risk that the offender poses is the central focus of the preventive detention enquiry, not the seriousness of the present offence, though this
11R v Parahi, above n 28; R v Bailey CA102/03, 22 July 2003; R v Tepania [2014] NZHC 2230.
will obviously be relevant.12 There has to be a significant, ongoing risk of serious harm before somebody is incarcerated indefinitely.13
[71] The analysis must be informed by reports from at least two appropriate health assessors about the likelihood of the prisoner committing a further qualifying sexual or violent offence.14 I have already referred to these in some detail. As noted, both psychologists consider that there is a high risk that you will re-offend in a similar manner when released into the community.
[72] I now consider the s 87(4) factors.
Pattern of serious offending (s 87(4)(a))
[73] It is quite clear that you have a long-standing, well-entrenched, propensity to sexually offend in a serious way against young pre-pubescent females. You have acknowledged that you developed a sexual interest in very young females from an early age. Your convictions disclose continual offending of this nature spanning the period from January 2005 to February 2014, interrupted only by your imprisonment.
Seriousness of the harm to the community caused by the offending (s 87(4)(b))
[74] It is well established that sexual offending of this nature causes immense harm to victims, their families and the community at large. The victim impact statement prepared for Victim 1 demonstrates this. Your offending has had a devastating effect on her life, and ultimately led her to attempt suicide. She may well be affected by your offending for the rest of her life.
Information indicating a tendency to commit serious offences in the future
(s 87(4)(c))
[75] The Sakdalan report identifies a number of risk factors in your case. You admitted to having a sexual attraction to children, and pre-pubescent and pubescent
girls in particular. You also indicated to Dr Sakdalan that you feel comfortable with
12 Sentencing Act, s 87(2)(c).
13 R v Parahi, above n 31, at [85].
14 Sentencing Act, s 88(1)(b).
your interactions with young girls and that you feel appreciated when providing them with care and attention.
[76] Of real concern, is the fact that several drawings and magazine pictures were found in your prison cell. The magazine pictures were mainly of celebrities and their young daughters. The drawings depict young girls exposing their genitalia and engaging in explicit sexual activities. This demonstrates your continued deviant interests.
[77] A major risk factor is your alcohol abuse, which has the effect of lowering your inhibitions and impairing your judgement. You acknowledge that you have a drinking problem.
[78] Both psychologists conclude, following assessment using various tests and methodologies, that there is a high risk that you will re-offend in a similar manner when you are released into the community. Dr Sakdalan notes the high degree of convergence in this prediction using both Static 99 and STABLE 2007.
Efforts by the offender to address the cause of the offending (s 87(4)(d))
[79] Following your sentence in January 2006 for your offending against Victim 1, you received 12 treatment sessions with a psychologist from 12 April 2006 to
31 July 2006. You attended three further treatment sessions with a psychologist in
2007. Despite this, you continued to offend against Victim 1 through until
October 2010 when your relationship with her mother terminated.
[80] You attended three more treatment sessions with a psychologist in 2011 and a further 11 treatment sessions to address your offence related needs in 2013.
[81] In all, you have had 29 treatment sessions from April 2006 to the end of
2013. However, this has not stopped your offending. Despite receiving a first strike warning in December 2012, you offended against Victim 2 in early February 2014, not long after your release from prison and almost immediately after you were granted bail for the present offending. You were not even deterred by the presence
of adults at the time of this further offending. The materials found in your prison cell indicate that all efforts to address the cause of your offending have failed.
[82] As Mr Nabney points out, you have not yet participated in high intensity sex offender treatment and have not addressed your underlying alcohol problems. There remains the possibility that this could reduce the current high risk of re-offending.
[83] However, I am concerned that you have not yet accepted that you have a serious problem that needs to be addressed. Ms Shephard reports that you have limited insight into your offending. You told her that the majority of your sexual offending convictions were due to others falsifying evidence against you and you admitted to only one of the present offences and one of the previous sex offences. Ms Shephard reports that you “extensively externalised blame” and have “a well- entrenched pattern of avoiding or limiting your responsibility for your offending.” This is consistent with your very late guilty plea.
Does a lengthy determinate sentence provide adequate protection for society? (s 87(4)(e))
[84] Section 8(g) of the Sentencing Act requires the Court to impose the least restrictive outcome that is appropriate in the circumstances. If a lengthy determinate sentence will provide adequate protection for the community, this should be imposed rather than a sentence of preventive detention.
[85] The possibility of an extended supervision order on release must also be taken into account.15 This would allow monitoring for a period of ten years following your eventual release. Following a recent amendment to the Parole Act, a new order can now be sought once an existing order expires.
[86] The Court of Appeal has, however, recognised that the real difference between a finite sentence and preventive detention lies in the latter’s discretionary element and that this allows an offender to work towards proving they no longer
pose an undue risk, thereby giving them a motivation that would be absent from a
15 R v Mist [2005] 2 NZLR 30 (CA).
finite sentence.16 Moreover, preventive detention protects the community to a far greater degree, such that the Court of Appeal has cautioned that a finite sentence, even with the possibility of an extended supervision order on release, should not be viewed as an agreeable alternative to preventive detention.17
[87] On the basis of the psychologists’ reports and your prior record, it seems clear that, without rehabilitation, it is highly likely that you will re-offend in a similar manner after being released into the community at the end of any determinate sentence. Your offending is serious and causes serious harm to the community. A lengthy determinate sentence will not provide adequate protection for society unless you engage fully with treatment in the meantime and this is effective to mitigate the current high risk of you re-offending.
[88] There is little evidence available to me to suggest that such treatment will be effective in your case. As noted, 29 treatment sessions with various psychologists since April 2006 have failed to prevent you from further offending. Neither of the reporting psychologists has offered any comfort that further treatment is likely to be successful. While Dr Sakdalan considers that you would benefit from further treatment, he notes that your eligibility for participation will depend on your suitability and motivation to engage, which will require assessment at a later date. I take from this that your present eligibility is questionable. Ms Shephard also raises a concern about your motivation for treatment, noting that you have re-offended during treatment and post-treatment.
Exercise of discretion
[89] I have given this case careful consideration. I am satisfied that you are likely to commit further qualifying sexual offences upon release into the community if I were to sentence you to a determinate sentence. Given your continuing lack of insight and your tendency to minimise your offending, I consider that your high risk of further sexual offending against very young and vulnerable females is best managed by a sentence of preventive detention. This will provide you with the
incentive you need to engage fully in therapeutic treatment. For such treatment to
16 Ibid.
17 R v Parahai [2005] 3 NZLR 356.
succeed, you will first need to acknowledge your offending and accept that you need to address the underlying causes of it. You have not yet reached that point. I hope that you will take full advantage of the opportunities for treatment that will be offered so that you can regain your liberty. Your future is very much in your own hands.
Sentence
[90] Mr Wilson, would you please stand.
[91] On each of the offences against Victim 1, charges 2, 3 and 5, I sentence you to preventive detention. I order you to serve a minimum period of imprisonment of five years and five months.
[92] On each of the offences against Victim 2, charges 8 and 9, I sentence you to
two years’ imprisonment.
[93] These sentences are to be served concurrently. [94] Charges 1, 4, 6, 7 and 10 are withdrawn by leave.
M A Gilbert J
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