Thomas v Police
[2022] NZHC 3622
•11 October 2022
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2019-070-3841
[2022] NZHC 2622
THE KING v
RICHARD WADE BOWMAN
Defendant
Hearing: 11 October 2022 Appearances:
BR Smith for the Crown
CR Horsley for the Defendant
Sentencing:
11 October 2022
SENTENCING NOTES OF FITZGERALD J
Solicitors: Crown Solicitor, Tauranga To: C Horsley, Tauranga
R v BOWMAN [2022] NZHC 2622 [11 October 2022]
Introduction
[1] Mr Bowman, you appear this morning for sentencing on a range of family violence and sexual offending charges. Your offending involved two victims, Ms T and Ms W. You pleaded guilty to the charges in relation to Ms T on the morning of trial. You were found guilty by a jury on the charges against Ms W. Ordinarily your sentencing would proceed in the District Court. However, the sentencing has been transferred to this Court, given the District Court considered a sentence of preventive detention may be appropriate, and only the High Court can impose that sentence. One of the key issues I must therefore decide today is whether you should receive a finite sentence of imprisonment, or the indeterminate sentence of preventive detention.
[2] Given the number of charges involved and the need to consider both a potential finite sentence and preventive detention, there is a fair bit for me to work through this morning. So this will take a little time, and I ask you, and those who are here present in Court today to also please bear with me. Mr Bowman, I hope you listen to what I have to say.
[3] Mr Bowman, I know you continue to deny your offending against Ms W. As your counsel will no doubt have explained to you, however, I must sentence you in accordance with the jury’s verdicts. But even on your own view of the extent of your offending, there is no doubt that you have a pervasive and deep-seated problem with anger and self-control in your relationships with women. The pattern is clear to see across your offending history, from when you were a teenager. Whatever your view is of your most recent offending, you need to accept that you have a problem that needs to be fixed. I therefore urge you to take whatever opportunities are provided to you while you are in custody to treat what on any view are not normal or acceptable behaviours or attitudes within intimate partner relationships.
[4] Before I go further, I would also like to acknowledge Ms T and Ms W, and the courage that they have displayed in reading their victim impact statements here at Court today. That is not an easy task. Their statements demonstrate that offending such as yours, Mr Bowman, results in your partners feeling controlled, unsafe, overwhelmed, and experiencing ongoing emotional harm. Violence and control in
intimate partner relationships is a scourge of New Zealand society, is sadly all too common and must be denounced.
Factual background – index and other relevant offending
[5] I first outline the facts of the offending for which I am sentencing you today. You and most of those here present today will be familiar with these facts, but because sentencing is a public process, it is important that the broader public understands the basis upon which I am sentencing you. In addition, given the Crown seeks a sentence of preventive detention, and given such a sentence requires a pattern of serious offending, I will also include in this part of my sentencing remarks a summary of your other relevant offending over time.
[6] In summarising the factual background to your offending, I will need to traverse some of the details of that, including your sexual offending against Ms W. I know this will be difficult for many of those present here in Court today, and no doubt for yourself also. But given the public process of sentencing, it is important that there is clarity and transparency as to why you are before the Court for sentencing today.
2011 offending
[7] Your relevant offending history began in 2011, when you were charged and convicted of possession of an offensive weapon and resisting police. This offending occurred when you were 18 years old. You got into an argument with your then girlfriend who I will refer to as Ms F. You became upset and took a large number of sleeping pills in an attempt to take your own life. You then took up a knife and threatened Ms F with it. She managed to call the police and it took some time for them to be able to subdue you. You were sentenced to a reasonably long term of community work for that offending.
Offending against Ms T
[8]I turn now to your offending against Ms T for which I am sentencing you today.
[9]You pleaded guilty to the following charges on the morning of trial:
(a)attempting to pervert the course of justice;1
(b)male assaults female (representative);2
(c)threatening to kill (again representative);3 and
(d)male assaults female.4
[10] You were in a relationship with Ms T from 2012 until around May 2015. On any view, the relationship was characterised by jealousy, possessiveness, control and ultimately violence. Even on your own view of the relationship, you acknowledge that you did things that you regretted and did not treat Ms T very well. I am bound to observe, Mr Bowman, that that minimises your offending against Ms T and the effect it had on her.
[11] The first formal charge arising out of this relationship is charge 19, attempting to pervert the course of justice. On 15 January 2013, you and Ms T argued about her phone. You became angry and struck her in the face. Ms T later made a statement about the incident. A few days later, you asked her to write a letter to the police withdrawing her complaint and claiming that you had not hit her. You told her that she must do this if she ever wanted to get back into a relationship with you. Ms T wanted to resume the relationship at that time. She therefore wrote a letter to the police and left it under the door at the police station. As a result, the police decided not to prosecute you in relation to that incident.
[12] The next charges, charge 20, male assaults female, and charge 21, threatening to kill, are what we call representative charges, which cover a number of separate incidents over a period of time which cannot be specifically identified to particular dates and times. These representative charges cover the period 13 September 2014 to 20 August 2015.5 On numerous occasions, when you and Ms T were arguing, you would put your hands around her neck and choke her. You would squeeze so hard that
1 Crimes Act 1961, s 117(e). Maximum penalty seven years’ imprisonment.
2 Section 194(b). Maximum penalty two years’ imprisonment.
3 Section 306. Maximum penalty seven years’ imprisonment.
4 Section 194(b). Maximum penalty two years’ imprisonment.
5 See discussion at n 17 below for the rationale for this date range.
Ms T was unable to breathe and would sometimes be left with bruises on her neck. While choking her you would also say words to the effect of “I will fucken kill you”. The summary of facts says that this would occur at least a couple of times each month, though sometimes more regularly.
[13] The next charge, charge 23, concerns an incident which occurred between 1 November 2014 and 1 August 2015. You and Ms T were driving and Ms T was pregnant at the time with your child. She was driving and you were in the passenger seat. You began to argue and you struck Ms T to the left side of her face, causing her nose to bleed over her chest and neck. She drove to a public toilet and cleaned herself up as best she could. When she got back in the car you were still angry and demanded that she drive to the hospital, telling her that she was going to go in and ask for an abortion. Ms T parked at the hospital and attempted to talk you out of this. You eventually fell asleep and when you awoke you had calmed down and told Ms T to drive home.
[14] In addition to the blood nose, Ms T sustained a black eye and redness to the inside of her eye.
[15] For relevant context, it is necessary to mention a few other matters concerning your relationship with Ms T. On 23 July 2015, the Hastings District Court granted a temporary protection order against you in relation to Ms T. That protection order was made permanent by the Family Court at Waipukurau on 27 October 2015. In the intervening period, Ms T gave birth to her and your son.
[16] Towards the end of your relationship with Ms T, you were charged and convicted of threatening to kill and male assaults female in relation to an incident in May 2015 concerning Ms T’s mother. You and Ms T became involved in an intense argument and Ms T’s mother got between the two of you. You then put your hands around Ms T’s mother’s throat and squeezed, while pushing her backwards up against the wall and saying “I will choke you until you die”. You were again sentenced to community work for this offending.
[17] I have also been provided with information about an incident which occurred in November 2015. Both you and Ms T were at an associate’s address in Hamilton. You indicated that you wanted to rekindle the relationship and became angry when Ms T said she was not interested. You began punching at her car’s wing mirror until it broke, and then punched at the driver’s front window, smashing the glass. In February 2016, you were sentenced to three months’ imprisonment in relation to these events, as well as breaching the protection order.
Offending against Ms V
[18] In between your relationship with Ms T and Ms W, you had a relationship with another woman who I will refer to as Ms V. You were in a relationship with Ms V from 2015 to the beginning of 2016. This relationship was also characterised by control and violence. An incident occurred in December 2015 while you and Ms V were working on a farm. You got into an argument and forced her onto the back of a two-wheeler farm bike with you, telling her you would kill her. She managed to get off and run away, although you chased her, though she ultimately managed to get to her employer’s house who drove her back to her home. You were charged and convicted of threatening to kill and male assaults female.
[19] A further incident took place in January 2016, when you had cooked dinner for Ms V but you became angry when she was tired. You threatened and intimidated her while she was trying to take a shower, and then afterwards, assaulted her and continued to threaten her. The following morning, there were further arguments and Ms V said she did not want a relationship with you, at which time you dragged her outside and pushed her into her vehicle. You then drove erratically, continuing to threaten her during the drive. She managed to yell out at another driver of another car to get help, who began following you, which led you to return to Ms V’s address. You were sentenced for this offending, and that in December 2015, to two years and six months’ imprisonment.
Offending against Ms W
[20] This brings me to your offending against Ms W. You commenced a relationship with Ms W not long after your release from prison. The relationship
moved quickly and became intense, with you and Ms W getting engaged two months later. Following that, the relationship deteriorated and again became characterised by control, anger and violence, but also sexual offending.
[21] Charge 1, for which I am sentencing you today, concerns a rape which occurred in 2018. It is acknowledged that you and Ms W had experimented on one occasion with consensual strangulation during sexual activity, though Ms W made it clear she did not wish to engage in such activity going forward. Several days later you wanted to have sex with Ms W but she did not want to and told you that, but despite this, you raped her. While doing so, you restricted her breathing by pressing on her throat with your forearm and at times strangling her with both hands. This offending resulted in bruising to Ms W’s neck.
[22] Charge 2, injures with intent to injure, concerns an incident which occurred on 27 November 2018. You were angry at Ms W because she had attended a conference that you had not wanted her to go to. Ms W then went outside to ride her horse though when she was on the horse, you grabbed at the reins causing the horse to rear up and Ms W to fall off. You grabbed her by her hair and then by her shoulder, pulling her over so she ended up laying on her back on the ground. You kicked her in the ribs about four times, and then stomped on her chest about four times. This caused Ms W a lot of pain and winded her. Realising that she was hurt, you had her change her clothes and then drove her to the hospital. On route you called in at Ms W’s mother’s house and you told Ms W to tell her mother that she had fallen from the horse.
[23] As a result of these injuries, Ms W had nausea and headaches, and tenderness in various parts of her body.
[24] The next charge, charge 4, male assaults female, occurred in December 2018. In her evidence, Ms W described there being a lot of physical fights in your relationship. Evidence was given of bruising to her right forearm from you grabbing her and scratching to her chest which had also been caused by an altercation with you.
[25] Charge 5, strangulation, occurred in December 2018. You and Ms W were at your home. You were arguing and you pinned Ms W against the kitchen wall, pressing
your forearms and hands on her throat impeding her breathing. She felt light-headed and dizzy and eventually you let her go.
[26] On 2 January 2019, you and Ms W were driving. Again arguments ensued and Ms W ultimately asked you to stop the car and she got out. Realising that she had nowhere to go, she got back in the car. You then began driving erratically and recklessly, and began verbally abusing Ms W. This gives rise to the charge of reckless driving (charge 7). You also threatened to kill Ms W, giving rise to charge 8, threatening to kill.
[27] From this point, Ms W tried to avoid you, but there was intermittent contact between the two of you, though you would contact Ms W obsessively, for example, repeatedly calling her and disguising your phone number when you did so.
[28] On 18 January 2019, Ms W contacted you to get some of her possessions back. That night she went to your home and an argument ensued. Ms W panicked and went to drive away but you jumped onto the back of her ute and ended up on the roof, banging it and looking in at her through the windscreen. You eventually got off and she drove away. The next day, Ms W went to your place of work to return some cigarettes to you and to get her belongings back. She was again driving her ute. You said you didn’t have her belongings and she went to drive away, but you lay in front of her ute so she couldn’t. You then got up and given Ms W had gotten out of the vehicle to see where you were, you tackled her to the ground where the two of you rolled and struggled. You grabbed her phone and threw it in her car and when she went to retrieve it, you slammed the door shut on her forearm. Ms W suffered a grazed elbow, a cut to her finger and her forearm was also sore. This led to charge 9, male assaults female.
[29] Shortly after these events, you were arrested and released on bail on conditions that you not go within 200 metres of Ms W’s home, and not have any contact or association with her.
[30] Despite these clear bail conditions, and that Ms W was generally reluctant to spend time with you, there was again some contact. You took steps to try to pressure
Ms W into submitting a letter to the Court saying her account of the events on 18 and 19 January did not occur and went as far as typing a retraction letter for her. Ms W told you that she would submit it but didn’t do so. She also gave evidence that you offered to pay off a debt and help her financially if she assisted you avoiding going to prison. This gave rise to charge 11, attempting to pervert the course of justice, and during discussions around this time, you also threatened to kill Ms W, giving rise to charge 10.
[31] On 29 January 2019, you made contact with Ms W asking if you could spend one more night together and she ultimately agreed. The events which followed gave rise to charge 12, inciting or counselling to commit suicide. Recognising that you were likely to go to jail, you tried to persuade Ms W that life wasn’t worth living without each other which led to you going for a drive together, parking and you attempting to attach a length of hosepipe to the exhaust and feeding it through the window, thankfully to no avail. Ms W was overwhelmed though tried to calm you down. You eventually did calm down and drove home.
[32] The events which followed led to charge 13, rape, and charge 14, strangulation. After Ms W lay on the bed you told her that “you might as well have some fun with her while you still could”; you tied her hands, and put tape over her mouth after she screamed. You removed her pants and underwear and raped her. Ms W was resisting and hitting you with her tied hands which made you angrier, and you put your hands on her throat and strangled her, leaving her light-headed and dizzy. This carried on for about five minutes.
[33] You then turned Ms W over and had anal sex with her, which made Ms W cry out in pain. This gives rise to charge 15. Later you removed the tape and restraints and went to sleep. Ms W described in her evidence how she felt humiliated and degraded by these events.
[34] The third cluster of charges, charge 16, 17 and 18, occurred on 2 February 2019. You again contacted Ms W and convinced her to come and visit you. You made excuses for her to stay longer and suggested she stay the night and while Ms W agreed, she did not intend to engage in sexual activity with you. You lay on the bed beside her
and started kissing her and touching her, and she told you to stop but you did not. You persisted and then violated her by oral sex, penetrating her anus with your finger and by rape. Several times during this Ms W tried to get up and leave. Afterwards you went to sleep and Ms W lay awake all night.
Your personal circumstances
[35] I turn now to your personal circumstances. I take this from the two health assessor reports that have been provided to me, as well as a pre-sentence report, which we refer to as a PAC Report, from the Department of Corrections.
[36] These reports describe your background in South Africa and then in New Zealand, where you moved when you were seven, in what appears to have been a good and nurturing home. It appears that you did well at school, at least academically, although the reports describe somewhat difficult years as a teenager. It seems in this context, you were sent by your family back to South Africa and into the care of your aunt where you remained for a year. This appears to have been a relatively trouble free period, after which you returned to New Zealand.
[37] Following your return, you were somewhat itinerant, travelling around New Zealand and without a regular job. You describe yourself as having been convicted of shoplifting and stealing on a few occasions during this period. I do not consider these charges relevant to sentencing today, and I therefore put them to one side.
[38] There is no evidence in the materials I have read of any diagnosed mental health issues, or serious substance abuse.
[39] As to your attitude towards your offending and remorse, you minimise your offending, both in terms of your historical offending and the offending for which I am sentencing you today, and as I noted earlier, you continue to deny any offending at all against Ms W.
[40] I turn now to the sentencing options available to the Court today, the first a finite sentence of imprisonment, or alternatively, the open-ended sentence of
preventive detention, pursuant to which you would only be released when the Parole Board considered it is safe to do so.
Finite sentence
[41] I start with your sexual offending against Ms W, given of all the charges, these are the most serious.
[42] I will determine an appropriate starting point for all of your sexual offending. The fact that there were three instances of rape is able to be taken into account as an aggravating feature of the offending.6 I do not propose to assess separate starting points for separate charges arising out of what was in substance a single incident, such as strangulation in the context of a rape.7 Rather, as the Court of Appeal stated in a guideline case for sexual offending called R v AM, what is required is a common sense approach to overall culpability.8
[43] I first turn to the aggravating features of your sexual offending. I consider there to be associated violence to a moderate degree, that is in addition to the violence inherent in the offence of rape itself. In particular, I take into account your strangulation of Ms W. One of the incidents also involved detention which extends beyond that inherent in the offence, namely restraining Ms W in the January 2019 rape. A further and seriously aggravating factor is the scale of the offending. This is not one isolated incident of rape, but three incidents over a period of a few months, some of which also included anal and oral sex.
[44] I do not consider Ms W’s vulnerability to be an aggravating factor, at least beyond the vulnerability which is inherent in any act of rape. This is not a case where a particularly old or young victim is involved, or a victim with mental health issues which make them especially vulnerable. And while you clearly pressured Ms W to stay with you, and while reluctant, she did agree to do so in January and February 2019. I accept that at that time, you were on bail conditions that prohibited you from seeing Ms W, but on those two occasions, Ms W agreed to see you. I also do not
6 As in, for example, Taitapanui v R [2021] NZCA 161; and Craven v R [2021] NZCA 630.
7 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [49].
8 At [49].
consider there was any real planning or premeditation involved in this offending; rather it arose in highly charged circumstances in what was on any view a volatile relationship.
[45] On this basis, I consider this offending to fall within band two of the bands set out in the R v AM guideline case, that band having a starting point of seven to 13 years’ imprisonment. Your offending is more serious than in R v H, referred to in R v AM, which was placed by the Court of Appeal at the upper end of band one.9 Each instance of rape is less serious than in the cases of R v Hannagan and R v B, also referred to in R v AM, which the Court of Appeal placed at the higher end of band 2, but there are three instances of rape in this case.10 Your offending is considerably less serious than in a case called Taitapanui v R, where the Court of Appeal held a starting point of 16 years to be within range.11 It is somewhat similar to a case called Hooper v R, which involved multiple instances of rape and anal intercourse, in the last six months of a deteriorating relationship.12 On those charges, the Court adopted a starting point of 10 years’ imprisonment, though given the facts of that case, I consider that to be lenient (and note a sentence of preventive detention was imposed in any event). I have also considered a case called Archer v R, in which there was one instance of sexual offending leading to rape, in which a starting point of nine years was adopted by the Court of Appeal.13
[46] Taking all of these matters into account, I consider a starting point of 11 years to be appropriate, so in the mid to upper level of band 2.
[47] I then turn to your other offending against Ms W. Some of these charges, had they been sentenced in isolation, would not have led to terms of imprisonment. The charge of strangulation, however, is serious in and of itself, 14 and would likely fall at the lower end of the guidance given by the Court of Appeal in a recent case called
9 R v H CA248/02, 31 October 2002.
10 R v Hannagan CA396/04, 9 June 2005; and R v B CA278/04, 25 November 2004.
11 Taitapanui v R, above n 6.
12 Hooper v R [2019] NZCA 383.
13 Archer v R [2018] NZCA 331.
14 See, for example, the discussion of the new standalone strangulation offence in Shramka v R
[2022] NZCA 299.
Shramka v R, attracting a starting point of around two years’ imprisonment.15 The charge of attempting to pervert the course of justice is also an inherently serious charge, though I accept that there is no evidence of associated actual violence in connection with this charge, but it is to be viewed in the context of a controlling relationship. Taking into account totality, I adopt an uplift of two years for your other offending against Ms W. Standing back, a starting point of 13 years for all your offending against Ms W meets the principle of totality.16 There must be an uplift to this in my view, to reflect the fact that by the time of your offending against Ms W, you already had a range of other prior convictions involving violence in your relationships with women. Given the pervasive pattern of that earlier offending, I adopt an uplift of six months, leading to a total of 13 years, six months’ imprisonment.
[48] I turn now to your offending against Ms T. I adopt the representative charge 20, male assaults female, as the lead charge. These assaults involved strangulation. Male assaults female has a maximum penalty of two years’ imprisonment, and while there is also a representative charge of threatening to kill which has a maximum penalty of seven years’ imprisonment, the summary of facts suggests that the threats to kill were in substance an adjunct to your strangulation of Ms T. I proceed on the basis that this occurred on multiple occasions over the period September 2014 to August 2015.17 I do not consider it appropriate to consider these charges against the more recent sentencing decisions on the new specific offence of strangulation, which only came into force in December 2018, and which has a maximum penalty of seven years’ imprisonment. By definition, you were not charged with the new offence and therefore should not be sentenced by reference to it. There is no doubt, however, that strangulation is a seriously aggravating factor of the offence of male assaults female.18 The Law Commission, when considering the new offence of strangulation, described it as “a uniquely effective form of intimidation, coercion and control”.19
15 Shramka v R, above n 14.
16 And thus a little lower than the Crown’s suggested overall starting point of 15 to 16 years’ imprisonment.
17 In this context, I note charge 21 covers the period June 2013 to August 2015, but the particular is that the threats to kill occurred “while strangling [Ms T]”. If that is so, then given the strangling was only charged for the period September 2014 to August 2015, the threats to kill should also be sentenced on that basis.
18 Bigham-Hill v R [2019] NZHC 753 at [18].
19 Law Commission Strangulation: The case for a new offence (NZLC R138, 2016) at [1.2].
[49] The summary of facts records that your strangling of Ms T would impede her breathing, though not to the point of loss of consciousness, and that it occurred at least a couple of times a month. The summary of facts does not record any other violence, such as punching or kicking, associated with these events of strangulation.
[50] I have considered some other sentencing cases of male assaults female involving strangulation, sometimes accompanied by threats to kill.20 On this basis, one instance of strangulation with an associated threat to kill could justify a starting point of around eight months’ imprisonment. Given the scale of your offending against Ms T, and taking into account the need for parity in sentencing, I adopt a global starting point of two years’ imprisonment.
[51] Turning to the charge of attempting to pervert the course of justice, and as I have said, this is a serious charge, with a maximum penalty of seven years’ imprisonment, given it strikes at the heart of the criminal justice system. I have considered the cases to which the Crown has referred me. Had this charge been sentenced in isolation, I would have adopted a starting point of two years’ imprisonment. This reflects that there were no threats of violence accompanying the request to write the letter to the police. But as in a case called Harting v R, in which a two-year starting point was also upheld, the pressure you brought to bear on Ms T was in what was clearly a controlling relationship which had already turned violent.21 And your attempt to pervert the course of justice worked, for a time at least. I do not agree with the Crown’s submission that the fact you went on to offend against Ms T is an aggravating factor. Given you are being sentenced for that later offending, to include it as an aggravating factor on this charge would be double counting.
[52] The final charge of male assaults female, relating to you hitting Ms T in the head while in the car, if sentenced in isolation could have seen a starting point of three to six months’ imprisonment, and in all likelihood would not have attracted a custodial sentence.
20 Bigham-Hill v R, above n 18; Waitai v R [2014] NZHC 2116; and Wilson v Police [2012] NZHC 2503. I note that some of these cases involved a pregnant victim, and some also included a charge of injures with intent (which has a higher maximum penalty of five years’ imprisonment).
21 Harting v R [2016] NZCA 296.
[53] I must stand back and consider all of your offending against Ms T, and the principle of totality. Taking the starting point of two years’ imprisonment on the male assaults female and threatening to kill charges, I adopt an uplift to that of a further 18 months for your remaining offending, leading to a global starting point of three years, six months’ imprisonment.
[54] It is appropriate to consider discounts to this starting point. The Crown suggests, and I adopt, a discount of four months, or just under 10 per cent, to reflect that you have already served sentences in relation to other offending against Ms T which occurred over the same period. You also pleaded guilty to these charges. It was, however, a very late plea, on the morning of trial, but it did mean that Ms T did not face the ordeal of giving evidence at trial. I give a discount of around 10 per cent, or another four months. Taking these discounts into account, for your offending against Ms T, I would have sentenced you to two years, 10 months’ imprisonment.
[55] I must, however, consider an overall finite sentence for your offending against both Ms W and Ms T. Adding the two sentences together would give a combined starting point of 16 years and four months’ imprisonment. While a cumulative approach to sentencing is appropriate given your offending is against different victims and at different times,22 I must still stand back and ask whether this combined starting point also needs to be adjusted for totality. In my view it does, but only to a modest degree. I reduce the overall starting point for all your offending that I am sentencing you for today to 16 years’ imprisonment. This is lower than the Crown’s overall suggested starting point (of around 20 years’ imprisonment), and commensurate with the overall outcome suggested by your lawyer.
[56] I have also considered if there is any basis for discounts for personal factors; your lawyer does not suggest any. I cannot give you a discount for remorse. You continue to deny your offending against Ms W. You express some, but reasonably superficial remorse in relation to Ms T. I consider the 10 per cent discount for your very late guilty plea to adequately capture such remorse. I have not read anything in the materials put before me that gives rise to any other basis for a discount. In
22 R v Clarke CA128/06, 6 June 2006.
particular, you had a relatively stable upbringing, at least by comparison to most of the family backgrounds we see in the courts, and there is nothing to suggest anything particular in your upbringing which has had a causative link to your offending.
[57] Your finite sentence would therefore be 16 years’ imprisonment. The Crown suggests, and your lawyer does not take issue with, a minimum period of imprisonment of 50 per cent, or eight years. Given the nature of your offending, I accept that is appropriate. On any finite sentence therefore, there would be a minimum period of imprisonment of eight years’ imprisonment. I should emphasise to you and to those that are here in Court today, this is not the proposed finite sentence which, as I have said, is 16 years’ imprisonment. The eight-year minimum period of imprisonment is just the point in time following which you can start asking the Parole Board for parole. The Board would only order your release, however, once it is satisfied that you no longer pose a risk to society.
Preventive detention
[58] I turn now to the possible option of a sentence of preventive detention. A sentence of preventive detention may be imposed where a defendant has committed a qualifying violent or sexual offence,23 as in this case, and the Court is satisfied the defendant is likely to commit another qualifying violent or sexual offence upon release, after serving any sentence the Court may impose.24
[59] In deciding whether or not to impose a sentence of preventive detention, the underlying concern is whether a defendant is likely to remain such an ongoing risk to the safety of the community that it can only be met by the imposition of a sentence of preventive detention rather than a lengthy finite sentence. A sentence of preventive detention is not one of last resort however, and need not be resorted to only after other sentencing options have been tried without success.
[60] The factors which the Sentencing Act 2002 requires me to consider when determining whether to impose preventive detention are:
23 Sentencing Act 2002, s 87(2)(a).
24 Section 87(2)(c).
(a)any pattern of serious offending disclosed by your offending 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 offender to address the causes of the offending; and
(e)the principle that a lengthy finite sentence is preferable if this provides adequate protection for the community.
[61]I will address each in turn.
Any pattern of serious offending disclosed by the offender’s history
[62] There is clearly a pattern of violent offending in the context of your intimate partner relationships, though I accept that this has not manifested until recently in sexual offending. Nevertheless, there is a clear pattern of control and violence, which has escalated as you have gotten older. I take into account, however, that your offending against Ms F was not particularly serious, and while not in any way minimising your offending against Ms T or its effects on her, some of it would not be categorised as serious violence offending.
The seriousness of the harm to the community caused by the offending
[63] I think it is plain to all here in Court today that the type of offending you have engaged in causes serious harm to the community, and in particular to those women who have been in relationships with you.
Information indicating a tendency to commit serious offences in the future
[64] You will be aware that I have received two expert health assessor reports to assist me today, the first from a psychologist, Dr Kumar, and the second from a psychologist, Ms Kettlewell.
[65] Dr Kumar notes that your violent and sexual offending has been directed against intimate partners, and describes it as a pattern of diverse offending which may create challenges for rehabilitation. Dr Kumar has sought to assess the likelihood of you committing further serious violent or sexual offences in the future, though notes that in cases of offenders who do not suffer from serious mental illness like yourself, predicting the likelihood of future offending is fraught with difficulty. Dr Kumar has, however, assessed various actuarial and dynamic factors which are helpful in predicting future risk.
[66] Dr Kumar says that you display a pattern of not accepting responsibility for behaviour in the context of relationships and offending, that you are likely to experience rages within intimate relationships, when you are also likely to shift blame to your partners. Dr Kumar notes, however, that you do not present with many of the historical or actuarial factors that are associated with an increased risk of physical violence. Dr Kumar explains that from a strictly actuarial sense, you fall in the category of people with a low risk of violence and it is difficult to explain your persistent violent offending. Dr Kumar is concerned that given your lack of insight into your offending, and a negative attitude involving denial, rationalisation and minimalisation, you may not engage in psychological intervention programmes. Ultimately, Dr Kumar concludes that you present with an “elevated risk” of committing violent and sexual offences against intimate partners.
[67] Ms Kettlewell considers that your offending history demonstrates that over a period of some five years, there has been a continuous and escalating pattern of harmful and aggressive behaviour towards your intimate partners. She notes that you later admitted you need help in learning new behaviours, but fluctuated in accepting responsibility for your actions or the severity of them. Ms Kettlewell considers there to be an intensity to how quickly you enter relationships and become emotionally invested immediately. She states that you appear to have very high emotional needs and expectations, which are inevitably not met by your partners and conflict soon begins. This leads to you becoming possessive and distrustful quickly, a problematic cycle which Ms Kettlewell sees across all your relationships.
[68] Ms Kettlewell administered a test which assesses personality characteristics. You had also completed this assessment in 2017 as part of a Parole Board assessment. Ms Kettlewell states that you provided responses similar to individuals who report history of social anxiety and distrust. Ms Kettlewell states that this is consistent with individuals seeking out romantic relationships to avoid feeling insecure or vulnerable, and those relationships becoming very intense. The results of this assessment are also consistent with reports of your aggressive interpersonal style and tendency to “blow up” at your partners. Ms Kettlewell also notes that you scored within the clinical range for general anxiety disorder. She considers these personality traits to be enduring, integral to your offending cycle and that they could be a significant barrier to treatment. She states that “unless you are prepared to develop your insight into the personality adaptations which prevent you from meaningfully engaging in treatment, it is likely you will revert to old personality patterns in the future and upon release into the community”.
[69] Ms Kettlewell also applied certain assessments to assess your risk of future offending. I do not need to go through the detail of those assessments, but based on them, she considers that you are at high risk of future intimate partner violence. She is also of the opinion that there is an increasing probability that sexual offending may occur simultaneously with physical violence. She considers that this risk will likely remain stable should you fail to address the risk factors identified as your treatment targets.
[70] Finally in this context, the PAC report writer states that without treatment, you are assessed at a very high risk of reoffending, and a very high risk of harm in an intimate relationship context.
The absence of, or failure of, efforts by the offender to address the cause or causes of the offending
[71] You have engaged in some counselling sessions to date, but having reviewed all of the materials before me, it does not appear that you have truly accepted that you need ongoing assistance with your behavioural tendencies. The PAC report writer records that last time you were in prison, you declined to complete the custodial Special Treatment Unit for Men with Violent Offending.
The principle that a lengthy determinate or finite sentence is preferable to a sentence of preventive detention
[72] This factor really speaks for itself, and the application of orthodox sentencing principles do give rise to a relatively lengthy finite sentence in this case, if I were to go down that path.
Should a sentence of preventive detention be imposed?
[73] So, now I must consider whether in light of all of the things that I have just discussed, a 16 year sentence of imprisonment will provide adequate protection for society, or whether preventive detention is necessary. Mr Bowman, I have not found this an easy question to answer. On balance however, I have decided to impose a lengthy finite sentence and not a sentence of preventive detention. There are a number of reasons why I have come to this conclusion.
[74] First, I note that it does not appear that you have ever before been warned of the possibility of a sentence of preventive detention in the event of further similar offending. It should go without saying, Mr Bowman, that if there is future offending of this nature, preventive detention is very much on the table.
[75] Second, while there is clearly a pattern of control and violence in your relationships with women, some of your earlier offending was not of a very serious nature. For this reason, you have not before been subject to a lengthy term of imprisonment. Further, your pattern of violence in your relationships with women has only recently manifested in sexual offending.
[76] Third, the contents of the health assessor reports, and particularly that of Dr Kumar, are not so clear as some of the reports the Court sees in cases of this kind.
[77] Fourth, there is no doubt that your rehabilitative potential is not exhausted: on the contrary, you are only at the beginning of that process. This means that so long as you make the necessary mind shifts, which must be made Mr Bowman, there is a basis for considering that over time, and with treatment that you genuinely engage in, the risk you pose to women with whom you form relationships will reduce.
[78] Finally, on any view, the appropriate finite sentence in this case is a lengthy one, which at this juncture is sufficient in my view to meet the sentencing principle of protection of the public. Allied to this, and as your lawyer has referred to, is the possibility of an extended supervision order (ESO) being granted on your release. Whether or not such an order is imposed will depend on to what extent you have been rehabilitated in the interim and thus the degree of protection required for society at that time. The future potential availability of an ESO can help tip the balance in favour of a finite sentence in a marginal case such as this.
[79] On balance therefore, I am satisfied that a lengthy finite sentence is adequate in all of the circumstances to protect the community from you.
Sentence
[80] Mr Bowman, would you please now stand for me to formally pass sentence on you. I sentence you to 16 years’ imprisonment, with a minimum period of imprisonment of eight years’ imprisonment.
[81] On the charge of reckless driving, and unless there are special reasons relating to the offence, I am required to impose a mandatory period of disqualification for a period of six months or more.25 I consider there are such special reasons, given that offence is part of a suite of offences for which you are being sentenced to a lengthy period of imprisonment. I consider disqualifying you from driving, with that taking effect upon your release, could inhibit your reintegration into society. I therefore decline to order disqualification. I am also required to specify sentences for each of the charges on which you have been sentenced today. I will set those out in a schedule attached to my written sentencing notes, but to be clear, the overall sentence will remain 16 years’ imprisonment, with a minimum period of imprisonment of eight years.
25 Land Transport Act 1998, ss 35(1)(a) and 81.
[82] I also make a protection order in respect of Ms W pursuant to s 123B of the Sentencing Act 2002.
[83]Mr Bowman, please now stand down.
Fitzgerald J
SCHEDULE OF INDIVIDUAL SENTENCES
Offending against Ms W
·Sexual violation by rape (charges 1, 13, 16) – 11 years, six months’ imprisonment (concurrent)
·Sexual violation by unlawful sexual connection (charges 15, 17 and 18) – seven years’ imprisonment (concurrent)
·Injuring with intent to injure (charge 2) – two years’ imprisonment (concurrent)
·Male assaults female (charges 4, 9) – one year imprisonment (concurrent)
·Strangulation (charges 5, 14) – two years’ imprisonment (concurrent)
·Reckless driving (charge 7) – convicted and discharged
·Threatening to kill (charge 8, 10) – two years’ imprisonment (concurrent)
·Inciting to commit suicide (charge 12) – six months’ imprisonment (concurrent)
·Attempting to pervert the course of justice (charge 11) – two years’ imprisonment (concurrent)
Offending against Ms T
·Male assaults female (charge 20) – two years’ imprisonment (cumulative on charges 1, 13 and 16)
·Threatening to kill (charge 21) – one year imprisonment (concurrent)
·Attempting to pervert the course of justice (charge 19) – two years, six months’ imprisonment (cumulative on charges 1, 13 and 16)
·Male assaults female (charge 23) – convicted and discharged
2
5
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