The King v Cody Allen Young
[2023] NZHC 3563
•7 December 2023
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2023-019-001557 CRI-2022-039-000695
[2023] NZHC 3563
THE KING v
CODY ALLEN YOUNG
Hearing: 7 December 2023 Appearances:
J N Hamilton for the Crown J E Tarrant for Defendant
Sentencing:
7 December 2023
SENTENCING NOTES OF VAN BOHEMEN J
Counsel/Solicitors:
Crown Solicitor, Hamilton J E Tarrant, Hamilton
R v YOUNG [2023] NZHC 3563 [7 December 2023]
[1]Cody Young, you appear for sentence today having pleaded guilty to:
(a)one charge of kidnapping, which carries a maximum penalty of 14 years’ imprisonment;1
(b)one charge of attempted kidnapping, which carries a maximum penalty of seven years’ imprisonment;2 and
(c)six charges of breaching the Extended Supervision Order (ESO) to which you are subject, each of which carries a maximum penalty of two years’ imprisonment.3
[2] The sentencing process requires me to consider and assess a lot of information. Because it will take some time, I will now explain to you and others in the Court the process that I will follow:
(a)First, I will outline the facts of your offending for which you have pleaded guilty.
(b)I will then summarise the impacts which your offending has had on your victims.
(c)Next, I will identify the relevant purposes and principles of sentencing in your case and explain the approach to sentencing that I am required to take.
(d)I will then consider the appropriate starting point for the finite term of imprisonment that I will impose if I do not impose a sentence of preventive detention.
(e)After that, I will consider your personal circumstances and consider whether your starting point should be uplifted or decreased. At that
1 Crimes Act 1961, s 209.
2 Sections 209 and 311.
3 Parole Act 2002, s 107T.
point, I will have arrived at the finite term of imprisonment that I will impose, subject to my decision on whether to impose a sentence of preventive detention.
(f)The next step is to consider whether to impose a minimum period of imprisonment if I impose a finite sentence.
(g)And, lastly, I will consider whether a sentence of preventive detention should be imposed on you.
[3]That is the process the Sentencing Act requires me to go through.
[4] At that point, I will ask you to stand before I impose the sentence I consider just and appropriate.
Facts of the offending
Kidnapping offending
[5]I start with the kidnapping offending.
[6] The attempted kidnapping took place on 25 February this year, at about 8 pm. The nine-year-old female victim, who I will refer to as A, was travelling home on a scooter. You were driving down the same street and pulled into a driveway.
[7] After opening your rear passenger door, A approached the vehicle. You asked her if she would like $20. She said no. You then asked her to help push a button in the rear seat of your vehicle. She did so. She walked up to your vehicle and had her knees leaning on the seat. At this point you tightly grabbed her right arm, near her bicep area. She screamed and hit your hand. This caused you to let go her. She landed on the ground and then continued home on her scooter where she alerted her mother. This was the attempted kidnapping.
[8] The act of kidnapping took place just over a month later, on 26 March this year. Again, the victim was a nine-year-old female. I will refer to her as B. That afternoon,
B was walking with her friends to a shopping centre in Huntly. As they did so, they went through a carpark. You drove into the carpark and stopped next to B.
[9] Through an open window, you asked her if she could retrieve some money which had fallen down the rear passenger seat of your vehicle. She obliged and lent into the rear of your vehicle. When she was unable to locate the money, you became angry and frustrated with her. You then reached over and closed the passenger door, confining her in the rear passenger seats of your car.
[10] Fearing for her safety, B struck and hit you while screaming loudly. B then managed to exit your vehicle before you could drive away. In response to Police questioning, you said you were frustrated with B and closed the vehicle door on her to make it feel like you were going to abduct her, in order to demonstrate your frustration.
[11] You have subsequently acknowledged to writers of reports to which I will refer shortly that you wanted to do something sexual with both victims. However, in one case, you denied having a specific plan or sexual act in mind and, in the other case, you said you were unsure of what you would do. You also told the report writers that you unlocked the doors, enabling B’s escape.
Breach of extended supervision order offending
[12] I now consider your breaches of the Extended Supervision Order, to which you became subject on 23 March 2021. The ESO has a term of five years. Its conditions require that you:
(a)not enter or loiter near any school, any early childhood education centre, park, library, swimming pool or other recreational facility, church or other area specified by your probation officer without their prior written approval;
(b)not associate with, or contact, a person under the age of 16 years; and
(c)not be in possession of any electronic device capable of accessing the internet.
[13] On 12 November 2022, you entered a recreation facility without the prior written permission of a probation officer.
[14] On 4 December 2022, you entered into a dairy in Waitoa and made contact with a person under the age of 16 by giving her approximately 80 cents.
[15] On 13 December 2022, you were sighted by a member of the public on a street in Hamilton sitting in your car, speaking with two young girls aged between approximately seven and 11. The concerned member of the public took a photograph of you and your car and contacted the Police. GPS electronic monitoring confirmed that you were on the street at the relevant time.
[16] On 27 March 2023, the day after the kidnapping to which you have pleaded guilty, you drove your car alongside a 13-year-old girl who was walking along a street in Paeroa. You spoke to the girl through the passenger window and asked if she would like to earn some money. You said you had dropped $200 in the back seat and needed someone with small hands to reach under the seat and get it. The girl said she needed to tell her Dad and ran from the scene.
[17] On each of those occasions, you breached the conditions of the ESO. You also breached those conditions in committing the kidnapping offending.
Victim Impact Statements
[18]Victim impact statements have been given by:
(a)A and her mother and father; and
(b)The father of B.
[19] A says scootering to the shops had given her a sense of independence. As a result of what you did, she is scared even to leave the sight of her parents. She finds it hard to sleep and has nightmares. She can’t understand why there are people like you who want to hurt others.
[20] A’s mother has resigned her employment to be with her daughter. She says she is now much more anxious about her daughter and finds it difficult to be without her. Her father says he is angry and disbelieving that someone would try and hurt his daughter.
[21] B’s father says he is now very protective of his daughter and will not let her out of his sight when she is playing outside. He says she is anxious about meeting new people. He is concerned she is reluctant to talk about the incident. He considers this is detrimental to her wellbeing and may manifest later in life in adverse ways.
Process, purposes, and principles of sentencing
[22] Mr Young, in sentencing you I must impose sentences that hold you accountable for the harm you have caused your victims, that promote in you a sense of responsibility for and acknowledgment of the harm you have caused, that provide for your victims interests, that denounce your conduct, that deter you and others from committing similar offending, that protect the community from you, and that assist you in your rehabilitation and reintegration.
[23] The Crown asks for a minimum period of imprisonment if I impose an ordinary finite sentence. But it also submits that I should impose a sentence of prevent detention.
[24] Before I consider those questions, I am required first to determine the appropriate finite sentence for you, following the two-step process set out in Moses v
R.4 The first step is to determine the appropriate starting point for your sentences,
having regard to the seriousness of, and aggravating or mitigating features present in, your offending. The second step is to consider whether to adjust that starting point, having regard to aggravating and mitigating factors personal to you.
Starting point
[25] I agree with your counsel, Ms Tarrant, and Ms Hamilton for the Crown that the kidnapping offending should be the lead offending from which a starting point is set.
4 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
Counsel also largely agree on the aggravating features of your offending, except that the Crown also highlights that, by our own admission, your offending was sexually motivated.
[26]I consider the aggravating features of your offending to be:
(a)it was premeditated – despite being opportunistic – and it was calculated in the sense that it involved you employing the same methods against the same type of victims;
(b)secondly, your victims were vulnerable because of their age and lack of adult supervision;
(c)thirdly, your offending has – and continues to have – a significant impact on your victims, though I acknowledge that this is because of the trauma inherent in what might have happened if they had not managed to get away from you rather than anything that you did to them;
(d)fourthly, this offending occurred while you were subject to and in the breach of the ESO; and
(e)fifthly, you were sexually motivated when you committed the offending, though the offending itself was short in duration and did not involve any actual sexual offending.
[27] Because there are no guideline decisions for setting starting points for kidnapping offending, the Crown refers to two cases – Cash v R5 and R v Harrison6 – which it says are similar to yours. I agree that the circumstances in those decisions have some similarities to your offending, although, in Cash, the offender actually drove a short way with the young victim in his car before he pushed her out after he
5 Cash v R [2021] NZCA 369.
6 R v Harrison [2009] NZCA 162.
had been held up in traffic. In Harrison, the victim, with support of friends, was able to avoid being pulled into the offender’s car.
[28] In Cash, the Court of Appeal considered that the appropriate starting point for that kidnapping charge was a term of three-and-a-half years’ imprisonment. The Court noted that the kidnapping was brief in duration and the victim was not subjected to any trauma in addition to that inherent in kidnapping.7 In Harrison, the Court of Appeal upheld a starting point of two years’ imprisonment. In that case, the Court observed that a deterrent sentence was required even without evidence of the possibility of more sinister sexual offending.8
[29] The Crown says your offending is very similar to the offending in Cash, and that a starting point in the region of three and a half years’ imprisonment is appropriate for your act of kidnapping. Given your earlier attempted kidnapping, the Crown says that a total starting point of four and a half years’ is warranted.
[30] Your counsel, Ms Tarrant, accepts that your offending is more serious that than in Harrison but says that it is less serious than that in Cash because of the sexual undertones in that case. However, on your own admission, there was also a sexual undertone in your kidnapping and attempted kidnapping even if, as in Cash, nothing sexual eventuated. For that reason, I do not accept that there is a large difference between what happened in Cash and your kidnapping of B.
[31] Accordingly, I consider a starting point of three and a half years’ imprisonment is appropriate for your kidnapping of B. To that, I add an uplift of one year for your attempted kidnapping of A which, as Ms Hamilton says, was of much the same quality as the actual kidnapping. That results in a starting point of four and a half years’ imprisonment on the kidnapping offending.
[32] With respect to your breaches of the ESO, I accept that the breaches on 12 November and 4 December 2022 were not especially serious – although, given your history, there was a potentially sinister aspect to your offering money to a young girl.
7 Cash v R, above n 5, at [24].
8 Harrison v R, above n 6, at [25].
However, the offending on 13 December 2022 and 27 March 2023 was much more serious.
[33] On 13 December 2022, you were observed talking to two young girls between the ages of seven and 11. This was clearly in breach of your ESO conditions. While nothing more happened, it involved the same kind of victims as in your kidnapping offending and the same use of approaching such victims while in your car. I consider the offending displays similar calculation and premeditation.
[34] On 27 March 2023, you effectively tried to re-run in Paeroa what you had done the day before in Hamilton. This time, the young girl ran away. It is apparent, however, that, you were trying to persuade her to get into your car for sexually motivated reasons. Indeed, you acknowledge that this was a “near miss” and that you had sexualised thoughts about the girl.
[35] Having regard to totality – that is, the need to ensure your overall sentence is not wholly out of proportion to the gravity of your overall offending – I consider that a further uplift of 12 months’ imprisonment is appropriate to recognise your breaches of the ESO, particularly given the gravity of the breaches on 13 December 2022 and 27 March 2023. That results in an adjusted starting point of five years and six months’ imprisonment.
Personal circumstances
Personal aggravating factors
[36] I now consider whether there are any aggravating factors that may warrant an uplift to that sentence.
[37] You have just turned 32. You spent your birthday earlier this week in prison. You have 48 previous convictions. They include convictions for breaches of the ESO, committing indecent acts with intent to insult, indecently assaulting females under 12, threatening to kill, sexual connection with a young person, male assaults female and a range of driving, theft and failure to comply offences.
[38] The Crown says that your criminal history warrants a significant uplift. Ms Tarrant accepts that an uplift is appropriate. Because your criminal history is relevant to whether to impose an uplift and to whether a sentence of preventive detention is appropriate, I now discuss your relevant previous convictions.
[39] In 2016, you were convicted of one representative charge of sexual connection with a young person and two representative charges and one other charge of male assaults female. You pleaded guilty to this offending, which took place in July 2014. The relevant facts are that you had penetrative sexual intercourse with a 16-year-old girl on a number of occasions when you were aged 23. You also assaulted another 16- year-old girl, with whom you were said to be in a relationship, on ten occasions. You were sentenced to home detention.9 However, that sentence was cancelled and you were recalled to prison after you had breached the conditions of home detention in various respects.
[40] In April 2018, you were convicted of three representative changes of indecently assaulting a female under 12. This offending, to which you also pleaded guilty, took place between September and October 2016. The victim was 7 years old. You were 24 at the time. The relevant facts are that while boarding with the victim’s family, you touched the victim’s bottom; made comments to her such as “I can’t wait for you to grow up” and “I am going to marry you”; spooned and humped the victim’s back in bed; and put your tongue in her mouth after saying you were teaching her how to kiss. You were sentenced to 15 months’ imprisonment and special post-release conditions were imposed,10 which you later breached on two occasions.
[41] After this offending, the Crown applied for an ESO. In August 2019, an interim supervision order was imposed. In March 2021, the ESO was imposed. However, you breached those orders and your offending continued.
[42] In 2021, you were convicted of contravening a protection order, intentional damage and assault on a person in a family relationship.
9 R v Young [2016] NZDC 22342.
10 R v Young [2018] NZDC 8370.
[43] In 2022, you were convicted of two charges of doing an indecent act with intent to offend. This offending, to which you also pleaded guilty, took place in late 2021, when you were 29 and subject to the conditions in the ESO.
[44] The relevant facts are that, while parked near a primary school and in possession of a phone, you called out to the 17-year-old victim who was walking past, showed her a pornographic video depicting penetrative sexual intercourse and said, “I’ll give you $100 if you let me do this to you”. About 15 minutes later, you came across a group of four girls aged between 13 and 14, pulled up next to them, and called out to get their attention. You asked them where the local skate park was before asking if they wanted to earn $100. When they said no, you told them that you wanted to have sex with them for money. You said to the remaining girl who had not yet fled saying “I want to eat your pussy”, before poking your tongue out and rolling it around in your month. You were sentenced to 13 months’ imprisonment.11
[45] Given this history, the Crown submits that an uplift of 15 to 18 months’ imprisonment is warranted. Ms Tarrant accepts that an uplift is appropriate. She submits that 12 months is proportionate.
[46] Your previous convictions serve as an indicator of your character, culpability, and risk of reoffending. They also show the need for a greater deterrent response.12 Any uplift I make must be proportionate to the starting point I have adopted,13 although there is no fixed limit to the available size of such an uplift.14 It also must be proportionate to the sentences imposed for that previous offending. In the circumstances, I am satisfied that an uplift of 20 per cent to your adjusted starting point is appropriate.
Personal mitigating factors
[47] I now consider whether there are any personal mitigating factors and if so whether any reductions should be made, considering those factors.
11 R v Young [2022] NZDC 9123.
12 Reedy v Police [2015] NZHC 1069 at [19].
13 Tiplady-Koroheke v R [2012] NZCA 477 at [24].
14 Ripia v R [2011] NZCA 101 at [9]–[10].
[48]In preparing for today’s sentencing, I have read:
(a)the pre-sentence report prepared by the Department of Corrections;
(b)a report prepared by Ms Raecheal Riddell, a cultural report writer and former senior Corrections Officer, which has been submitted on your behalf under s 27 of the Sentencing Act;
(c)reports prepared by two health assessors – Dr Julie Norris, a forensic psychiatrist, and Ms Chantelle Terblanche, a registered clinical psychologist, for the purpose of assessing whether a sentence of preventive detention should be imposed; and
(d)two reports prepared in May 2019 and June 2020 by Mr Paul Carlyon, a clinical psychologist, for the purpose of assessing whether an ESO should be imposed on you.
[49] Despite the different purposes for which these reports were prepared, they all contain material that is relevant to an assessment of your personal circumstances. All of the reports are based on interviews with you. As I will discuss shortly, there are some notable inconsistencies in the accounts you have provided.
[50] Some of the issues discussed in the reports are sensitive and would normally be kept private. However, sentencing is necessarily a public process so I must refer to the material relevant to your sentence.
Upbringing and sexual abuse
[51] I begin with your upbringing. You were born in 1991. Your mother was 15 when you were born. The reports indicate that your mother drank and took drugs while pregnant with you. You did not know your father growing up.
[52] Your early years were not easy. Your mother was a sex worker and you were exposed early in life to sex, drugs, violence and other behaviour that many young children do not encounter.
[53] You told Dr Norris that you were sexually assaulted by two men when you were aged about three and a half. You told Ms Terblanche that you experienced three incidents of sexual trauma before you were aged seven: one from an adult male; one from a female baby-sitter and one from a male child. These incidents are not referred to in Ms Riddell’s report.
[54] You were taken into State care for a period. The pre-sentence report records that you reported being physically and sexually abused between the ages of five and eight.
[55] At some point, you were placed with your grandmother, who has been a constant source of support. However, you then went to Germany with your mother for a period.
[56] The reports of Dr Norris, Ms Terblanche and Ms Riddell all refer to an incident where you were sexually abused while in Germany. Ms Terblanche does not go into details. The specifics of the incident as relayed to Dr Norris and Ms Riddell differ in significant respects. Dr Norris says you described being assaulted in a car on a bridge by a man who was a friend of your mother and that your memory of the incident is strongly associated with a clock. Ms Riddell also says you described an assault by a man who was a friend of your mother. But she was told the incident happened in a remote area and involved the display of a handgun.
Education
Schooling was difficult for you because of what was going on in your life and because of bullying. You told Dr Norris that you attended school intermittently because of frequent moves, that you were “naughty” at school and left without achieving qualifications. You told Ms Terblanche you left school after Form 3 (or year 9).
However, Ms Terblanche says that other available information indicates that you completed NCEA Level 1.
Alcohol and drugs
[57] A consistent theme in the reports is that you had an early introduction to alcohol and drugs. You say you progressed from marijuana to methamphetamine, to which you say you have been addicted since the age of 22. You attribute your use of methamphetamine as a causal factor of your present offending. You say that when you use methamphetamine you lose your sense of a moral compass. However, there is no independent information about your use of and addiction to methamphetamine.
Abuse while in prison
[58] You told Dr Norris that you were labelled a “rapist” when imprisoned for the offending for which you were convicted in 2016. You told a number of the report writers that you were sexually assaulted while in prison by a cell-mate with a record of sexual offending. You say that your mental health seriously declined as a consequence, to the point that you tried to take your life.
Treatment
[59] In 2013, you were referred to the Short Rehabilitation Programme for Men and were reported as having demonstrated insight into your offending. However, you were exited from the programme when your behaviour did not improve after you were asked to consider your participation because of a lack of motivation and because you left sessions without excuse.
[60] In 2014, you were assessed as a potential candidate for the Medium Density Rehabilitation Programme, which is focused on general, non-sexual offending needs. But, you were considered unsuitable because of a lack of motivation.
[61] In 2017, you were referred to the SAFE programme, a community-based programme to assist those who sexually offend against children. Over a period of four and a half months, you took part in 18 group sessions and 17 individual sessions.
However, your participation in the programme was interrupted when you were arrested in late 2017 for violence and property offences.
[62] In June 2018, you were referred to Psychological Services for offence-related treatment while you were in prison. You were considered eligible for the Special Treatment Unit for Men with Sexual Offending against Children – presumably what now is known as Te Piriti in Auckland Prison and Kia Marama in Rolleston Prison in Christchurch. However, the time left in your sentence was not sufficient for you to complete the programme. Even so, you had six sessions with a psychologist while in prison. After your release, you had a further 12 sessions of therapy between November 2019 and February 2022.
Assessment of personal mitigating factors
[63] The questions for me are whether the matters identified in the reports have causatively contributed to your present offending and whether they explain your offending.15 A related question is what account should be taken of the treatment opportunities that have been available to you.
[64] As I have already noted, the reports of the sexual abuse are largely self-reported and there are evident inconsistencies. Given your age at the time of some of the incidents, it is understandable that your recall of details may have differed when talking to different report writers. At the same time, it is also possible that there has been some embellishment of the facts. I accept that you have suffered sexual abuse in your childhood. However, its extent and seriousness are difficult to assess.
[65] In any event, I accept that you have had a very difficult childhood, that sex, drugs and violence were part of that upbringing and that, except for your grandmother, you had no reliable adult figures to whom you could look for guidance and support. I accept that these factors, as well as the sexual abuse, causatively contributed to your previous offending and the offending for which you are being sentenced today.
15 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [107]–[109].
[66] On the other hand, and as the Crown submits, you have had access to treatment programmes. While you have attended a number of programmes, you have not completed a sustained programme of treatment, principally because of actions you have taken but also because of factors outside your control.
[67] In all the circumstances, I consider a discount of 12 per cent is appropriate to recognise the background factors that were contributively causative of your offending.
Remorse and rehabilitation
[68] You have provided a letter to the Court and letters to your victims dated 10 April 2023. In your letter to the Court, you express remorse and shame for your offending. You say you have an illness. You also say you could have gone further with both your victims but you held back. You refer to the sexual assault on you while you were in prison. You say you wish to seek help. Similar themes are raised in the letters to your victims. You apologise for what you did; you say you have an illness and that you are going to seek treatment so this never happens again.
[69] These letters stand in some contrast with the pre-sentence report which records that you have no remorse for your breaches of the ESO, which you called “stupid”, and that you made comments to the report writer that you deserved credit for letting your victims go, and that you shouldn’t be punished heavily. That report was written after your letters of apology.
[70] In all the circumstances, I am not persuaded that a discount for remorse is warranted.
Guilty plea
[71] The kidnapping occurred on 26 March 2023. You pleaded guilty to the charges on 17 April 2023. I accept that this was early and that, in accordance with the guidance of the Supreme Court in Hessell v R,16 a substantial discount should be given. I recognise that the Crown case is very strong. On the other hand, your early pleas will
16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
have spared your victims and their families further distress. In the circumstances, I am satisfied a discount of 25 per cent is appropriate.
Adjustment for personal aggravating and mitigating factors
[72] The net result of that process is that I will apply a net discount of 17 per cent to take account of your personal aggravating and mitigating factors. That discount comprises:
(a)an uplift of 20 per cent for previous offending; and
(b)a deduction of 37 per cent to take account of causative background factors and your guilty plea.
Appropriate finite sentence
[73] Accordingly, the finite sentence I have arrived at is a sentence of four years and six months’ imprisonment.
Should a minimum period of imprisonment be imposed?
[74] The Crown asks that, if I impose a finite sentence, I should impose a minimum period of imprisonment, given your previous history and offending when on an ESO.
[75] Ms Tarrant agrees that the imposition of a minimum period would be appropriate in your case and submits that a period of between half and the maximum of two-thirds of the end sentence is appropriate.
[76] In accordance with s 86 of the Sentencing Act, I may impose a minimum period of imprisonment longer than the period of usual parole eligibility if I am satisfied that that period would not be sufficient to denounce your conduct, hold you accountable for the harm done, deter you and others from similar offending and protect the community from you.
[77]I am satisfied that, in your case Mr Young, the normal parole eligibility period
– in this case, 18 months’ imprisonment – would not be sufficient to denounce your
conduct, deter you and others from similar offending or to protect the community. For that reason, I will impose a minimum period of imprisonment of 36 months or three years if I impose a finite sentence.
Should preventive detention be imposed?
[78]I now consider whether a sentence of preventive detention should be imposed.
[79] Preventive detention is an indeterminate sentence of imprisonment and is governed by s 87 of the Sentencing Act. Its purpose is to protect the community from those who pose a significant and ongoing risk to the safety of its members.17
[80] It is not disputed that you meet the requirements of s 87(2)(a) and (b) for the imposition of a sentence of preventive detention. You are over 18 and you have committed a qualifying violent offence; namely kidnapping.
[81] Before imposing a sentence of preventive detention, I must be satisfied that you are likely to commit another qualifying sexual or violent offence if released at the expiry date of any sentence other than a sentence of preventive detention.18
[82] When considering whether such a likelihood exists, s 87(4) requires me to take into account:
(a)any pattern of serious offending disclosed by your history;
(b)the seriousness of the harm to the community caused by your offending;
(c)information indicating a tendency to commit serious offences in future;
(d)the absence of, or failure of, efforts by you to address the cause or causes of your offending; and
17 Sentencing Act 2002, s 87(1).
18 Section 87(2)(c).
(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[83] Section 88(1) requires that a sentence of preventive detention must not be imposed unless I have considered reports from at least two appropriate health assessors about the likelihood of you committing a further qualifying sexual or violent offence. In accordance with that requirement, I have considered the reports of Dr Norris and Ms Terblanche, which were prepared specifically for the purpose of assessing whether a sentence of preventive detention should be imposed. I have also considered Mr Carlyon’s reports, which were prepared in May 2019 and June 2020 for the purpose of assessing whether an ESO should be imposed.
Any pattern of serious offending disclosed by the offender’s history
[84] The Crown says that your history shows a pattern of predatory conduct and that, while the nature of your offending has differed, this simply reflects the different selection of victims you have chosen, and the different opportunities you have had available to you. Ms Tarrant accepts that your criminal history displays a pattern of like offending.
[85] Dr Norris says that your sexual offending has become more frequent since it first started in 2014, demonstrating escalation, persistence and recurrence. Ms Terblanche says that your offending reveals that you have a specific type of victim
– pre and post pubescent females – and that your sexual offending appears to follow a clear pattern of initiating contact (using your phone and vehicle as a means to approach your victims).
[86] While I accept that your sexual offending took place somewhat opportunistically and in different contexts, I am satisfied that your history discloses a pattern of sexually motivated offending against pre and post pubertal girls.
[87] As to the gravity of that offending, although no sexual acts were committed on the occasions that led to the charges for which you are being sentenced, kidnapping itself is a serious crime – as evidenced by the fact it is a qualifying offence for a sentence of preventive detention. And you have acknowledged that you were
motivated sexually when you tried to abduct Victims A and B. In addition, all of the offending was committed in breach of the ESO and involved vulnerable pre and post pubertal girls.
[88] For these reasons, I am satisfied that your criminal history displays a pattern of serious sexually motivated offending against pre and post pubertal girls.
Seriousness of the harm to the community
[89] The second consideration is the seriousness of the harm you have caused the community.
[90] The Crown says that the harm to the community is self-evident. Seven children and young people were victims of your offending prior to the offending for which you are being sentenced. There were two victims in the kidnapping offending. There was a further likely victim from the incident on 27 March 2023. Ms Tarrant accepts that the harm to the community is serious.
[91] I agree. Although your current offending did not involve physical harm to your victims, there was the real prospect of harm. They know, as you have acknowledged, that things could have been much worse. You have heard the victim impact statement of A and her parents and of B’s father. You have taken away these young girls’ trust and innocence. You have seriously affected their lives and the lives of those who care for them. You have caused the girls and their parents profound emotional harm that will likely last a long time.
[92]I have no doubt that your offending has caused serious harm to the community.
Information indicating a tendency to commit serious offences in the future
[93] The next criterion is information indicating a tendency to commit serious offences in the future.
[94] Mr Carlyon considered there was a high risk you would engage in relevant sexual offending within 10 years of release. He said your history suggested you might target either a pre or post pubescent female.
[95] Dr Norris considers that any future offending would most likely be against prepubertal girls to whom you had opportunistic access, such as in household settings or when using your car. Dr Norris is concerned that you have continued to offend, despite engaging in treatment in the community, and that you have done so with an increased focus and frequency towards your preferred victim type - prepubertal and pubertal young girls. Dr Norris considers that you are at a high risk of future offending against such young girls if your fascination is not addressed. Dr Norris also considers that the escalation in your offending indicates that more physical harm might be involved if your offending risk is not addressed.
[96] Ms Terblanche considers that you present a medium risk of general violent offending and a high risk of committing a further qualifying sexual offence while in the community, based on her assessment of you using clinical psychological criteria. Ms Terblanche considers that your risk of offending is likely to remain at a high level over the longer term without the engagement in the necessary treatment and involvement of informed supports.
[97] Ms Tarrant accepts that, without appropriate oversight and support, there is a high risk that you will commit serious offences in the future. She emphasises, however, that the assessment of your risk must relate to the risk of re-offending at the sentence expiry date of your notional finite sentence.
[98] Based on your past convictions, the offences to which you have pleaded guilty and are being sentenced today, and the reports of Dr Norris, Ms Terblanche and Mr Carlyon, I agree that there is information indicating a tendency to commit serious offences in the future, unless you have proper oversight and support.
Absence / failure of efforts to address the causes of your offending
[99] The next criterion is the absence or failure of efforts to address the causes of your offending.
[100] The Crown says that it is evident that, while you have engaged in various programmes, you have lacked motivation, engaged in minimisation and justification, and displayed aggressive tendencies when having difficulty understanding treatment concepts. The Crown says that it is evident also that you have substantial rehabilitative work that needs to be undertaken.
[101] Ms Tarrant acknowledges that you have taken part in some interventions but also notes that you have never served a lengthy term of imprisonment, which is a relevant factor to consider in whether there has been an absence of or failure by you to address the causes of your offending.
[102] It is apparent from the reports of Dr Norris, Ms Terblanche and Mr Carlyon that a number of factors have impeded your accessing the benefits of treatment. These include your own lack of motivation, a reluctance to accept responsibility for your actions, a reluctance to accept the harm you cause your victims, and a tendency to blame others. A related factor is your unwillingness to understand that the conditions of the ESO are not there to frustrate you. They are designed to protect potential victims. But, they are also designed to help you manage yourself; to keep you out of trouble and out of prison.
[103] Dr Norris says that you need assistance in identifying the type and pattern of your offending, your sexually deviant arousal, understanding the psychological harm you cause others, understanding the impact of your own sexual trauma in your behaviour and learning new ways to cope at times of distress. Dr Norris recommends that a programme of this nature would be most appropriately provided and monitored by Corrections. Although Dr Norris does not say so, I surmise that she is referring to Te Piriti and Kia Marama.
[104] Despite your lack of motivation, especially at the initial stages, you did attend most of the SAFE programme before your attendance was interrupted by being arrested and being taken into custody. It is something of an irony that you were not able to attend the Te Piriti course while you were in prison because your residual sentence period was not long enough. It is to your credit that you still attended sessions with the psychologist while you were in prison and further sessions after your release.
[105] In these circumstances, I am prepared to accept you have made some effort to address the causes of your offending, even if, as is apparent from the events of late 2022 / early 2023, that treatment was not having much sustained effect. Even so, I consider it is significant that you have yet to attend and access the benefits of courses such as Te Piriti and Kia Marama, which are specifically designed to address the behaviour of men convicted of sexually motivated offences against children.
Is a lengthy determinative sentence preferable because it provides adequate protection for society
[106] The last criterion is whether a lengthy determinative sentence is preferable if it provides adequate protection for society.
[107] The difficulty in your situation, Mr Young, is that the choice is not between preventive detention and a lengthy determinate sentence. The choice is between preventive detention, with a mandatory minimum period of imprisonment of five years, and a sentence of four years and six months’ imprisonment, with a minimum period of imprisonment of three years.
[108] The Crown says that you have continued to offend against the most vulnerable members of the community and have done so despite the oversight of an extended supervision order. For that reason, it says a sentence of preventive detention is the only sentence capable of ensuring you will not be released until you have engaged in programmes designed to mitigate your risks to the community.
[109] Ms Tarrant says that a finite sentence of imprisonment would be sufficient to provide you with the opportunity to participate in a prison-based rehabilitative programme, and that the community would therefore be adequately protected from you through a finite sentence of imprisonment. Ms Tarrant also refers to the Court of Appeal’s decision in Moore v R, which concerned a situation with some similarities to yours.19
19 Moore v R [2023] NZCA 286.
[110] Because of those similarities and the relevance of that decision, I will now discuss aspects of that decision.
[111] The issue in Moore was whether preventative detention was appropriate where the determinate sentence for the offence of committing an indecent act on a girl under 12 (in fact, a 16-month-old girl) was 26 months’ imprisonment. The High Court held that a determinate sentence of that length was not sufficient to protect the community, so imposed a sentence of preventive detention, with a minimum period of five years’ imprisonment.20 The Court of Appeal, however, reached a different conclusion and quashed the sentence of preventive detention and imposed a sentence of 26 months’ imprisonment.21
[112]It is relevant that, in that case, the Court of Appeal held that:
(a)Mr Moore’s history disclosed a pattern of serious offending;22
(b)Mr Moore’s behaviour towards one of the community’s most vulnerable members could cause serious harm;23 and
(c)without appropriate oversight, there was a high risk that Mr Moore would commit serious offences in the future.24
[113]I have made equivalent findings in respect of your offending.
[114] In Moore, the Court of Appeal noted that there had been a 15-year period in which Mr Moore had not been convicted of sexual offending. That began in 2005, when he was arrested for sexual offending against a four-year-old girl. While serving a sentence of imprisonment, he completed the Te Piriti Programme and participated in a maintenance group. Five years later, he was released from prison but subject to an ESO of 10 years’ duration. In the following 10 years, he was convicted of 26 breaches of the ESO relating to the use of substances and having contact with children.
20 R v Moore [2022] NZHC 2635.
21 Moore v R, above n 19, at [99].
22 At [48].
23 At [49].
24 At [61].
However, until the offending for which he was arrested in September 2020, the breaches were not for sexual offending.
[115] In these circumstances, the Court of Appeal said it was not correct to say that Mr Moore had failed to address the cause or causes of his offending. The Court considered Mr Moore had gained some insight and demonstrated some measure of success, but it was apparent he still required strict monitoring and wrap-around support in the community.25
[116] The Court of Appeal observed that the easy answer would be to uphold the sentence of preventive detention because that would remove any risk of re-offending. However, it considered it would be an extreme step to sentence a person to an indeterminate sentence of imprisonment in respect of offending that would otherwise attract a sentence of around 26 months’ imprisonment. It also considered that to uphold the sentence because of a lack of confidence that the ESO would be properly implemented and monitored would be to punish Mr Moore for failings within the system and would amount to disproportionately severe treatment and punishment and would be inconsistent with s 9 of the New Zealand Bill of Rights Act 1990.26
[117] Mr Young, your situation is different from that of Mr Moore in a number of important respects. First, the finite sentence you face is more than double that faced by Mr Moore. Secondly, your breaches of your ESO have involved sexual offending early in its period of operation.
[118]However, there are also a number of other factors that offset those differences.
[119] First, while four years and six months is not a sentence of short duration, it is still six months less than the minimum period you would be required to serve under a sentence of preventive detention. There is something inherently discomforting in that contrast.
25 At [67].
26 At [93].
[120] Secondly, although the ESO was imposed in March 2021, because of the periods you have spent in custody – when the ESO has been suspended– you have been subject to its terms for only about a year. 27 By my calculations, the ESO has about another four years to run after you are released from prison, unless it is cancelled by the imposition of a sentence of preventive detention.28 So, your compliance with the ESO has been only partially tested and there is still a considerable period to go.
[121] Thirdly, you have not had the treatment benefits of a course such as Te Piriti or Kia Marama, which Dr Norris, and also Ms Riddell recommend you should attend. If you are sentenced to a term of imprisonment of four years and six months, with a minimum period of imprisonment of three years, there ought to be ample time for you to attend one of those courses without requiring you to be sentenced to preventive detention just to ensure your participation.29
[122] Fourthly, attendance at such a course should both improve your prospects of rehabilitation and of complying with the ESO.
[123] Fifthly, the terms of the ESO can be strengthened if that is considered necessary before your release. In addition, if it is considered that the remaining period of roughly four years which has still to run is not sufficient, it is possible for Corrections to seek a further ESO.
[124] Given these considerations, I am satisfied that a determinate sentence of four years and six months’ imprisonment will provide adequate protection for society and is preferable to a sentence of preventive detention. You need to be aware, however, Mr Young that any further serious sexual offending after your release from prison will likely result in preventive detention being imposed on you.
27 Parole Act 2002, s 107P(1).
28 Section 107Q(3).
29 According to the Corrections website, Kia Marama is a 33 week course and Te Piriti is closely modelled on Kia Marama. See “The Effectiveness of Correctional Treatment” Ara Poutama Aotearoa Department of Corrections < Young, please stand.
[126] On the charges of kidnapping and attempted kidnapping, I sentence you to a term of four years and six months’ imprisonment.
[127] In relation to that sentence, I impose a minimum period of imprisonment of three years.
[128] On the six charges of breaching an extended supervision order, I sentence you to a term of one year’s imprisonment to be served concurrently with the other sentence.
Firearms prohibition order
[129] The Crown requested and Ms Tarrant does not oppose, that I should make an firearms prohibition order under s 39A of the Arms Act 1983 upon your conviction for kidnapping. I order accordingly.
Please stand down Mr Young.
G J van Bohemen J
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