R V JOHN EDWARD CHRISP HC ROT CRI-2008-063-003921 [2009] NZHC 1021 (13 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                                   CRI-2008-063-003921



                                      THE QUEEN



                                            v



                         
     JOHN EDWARD CHRISP



Hearing:        13 August 2009

Appearances: C Macklin for the Crown
             H Edward for the prisoner

Judgment:       13 August 2009


                       SENTENCING NOTES OF STEVENS J




Solicitors/Counsel:
Crown Solicitor, PO
Box 740, Rotorua 3040
H Edward, PO Box 738, Rotorua 3040




R V JOHN EDWARD CHRISP HC ROT CRI-2008-063-003921 13 August 2009

Introduction


[1]    John Edward Chrisp, you appear for sentencing today having been found
guilty after trial by jury of the following charges
under the Crimes Act 1961: one
charge of unlawful sexual connection, for which the maximum penalty is twenty
years' imprisonment;
and one charge of attempted sexual violation by attempted
rape, for which the maximum penalty is ten years' imprisonment. The case
has been
sent to the High Court by the District Court Judge in order that the Court may
consider a possible sentence of preventive
detention.


[2]    For the purposes of your sentencing today, I have been assisted by the
following: written and oral submissions
both from the Crown and your counsel,
Mr Edward. I am grateful to counsel for the quality and comprehensive nature of the
written
submissions. I have also received two reports from health assessors, one
from Dr Kumar, a consultant psychiatrist, and one from Mrs
Johnston, a registered
psychologist. There is also a pre-sentence report and a victim impact statement.


Factual Background


[3]
   You had known the victim female you for approximately seven years. The
victim's stepfather worked with you during this period.
You had become a family
friend and on the odd occasion you would stay overnight at the victim's family home
in Rotorua.


[4]   
Sometime between 1 and 28 February 2007, the victim was at her family
home with her parents, younger siblings and yourself. The victim
was aged 18 years
and you were 48 years. During the night, you and the victim went to her bedroom to
listen to music on her computer.
You fell asleep on the bedroom floor. The victim
then left the bedroom and changed into her night attire. She was then wearing a
T-shirt, pyjama pants and underwear. The victim returned to her bedroom, got into
bed and fell asleep. You had not moved and were
still asleep on the floor.


[5]    An hour or so later, the victim woke up to find you had taken the blankets off
her bed and pulled
down her pyjama pants and underwear. The victim could feel

your tongue moving around inside her vagina. The victim did not like
this and tried
to push you off her. You grabbed her and continue to perform oral sex on her.


[6]       The victim was scared and
did not say anything to you at the time.


[7]       About ten or fifteen minutes later, you climbed on top of the victim. You
were
holding onto your penis and the victim could feel you pushing your penis
inside her genitalia.


[8]       You then started to worry
that the victim's parents might come into the
bedroom and you got off. You said "I'd better pull my pants up before your parents
catch me".


[9]       The victim did not initially make a complaint to the police. However, she
complained at a later stage when
she became aware that you were sending intimate
text messages to her 12 year old sister.


[10]      When you met the victim you
told her that you liked performing oral sex
better than having sex with girls. You also sent the victim text messages, one of
which
said "Sorry I bothered you. I won't anymore. I just found you so beautiful
sorry".


[11]      You admitted to the police having
oral sex and trying to have sexual
intercourse with the victim. In explanation, you said that the victim did not tell you
to stop
and she did not physically push you away.


Victim impact statement


[12]      The victim has described how she wanted you to stop and how scared she
was during the offending. She
stated that she complained to the police after she
became concerned about your over friendly contact with her 12 year old sister.
The
victim was fearful that you might sexually abuse her sister.

[13]    As a result of telling the police, the victim's stepfather
of 12 years made her
leave the family home. This was because you worked with her stepfather. Not
surprisingly, the victim is angry
that her stepfather was loyal to you and not to her.


Personal circumstances and pre-sentence report


[14]    You are 50 years
of age. Prior to your remand in custody, you lived with
friends in Rotorua. You are single now. You have a 19 year old daughter who
lives
in Australia, although you have not seen her since she was about six years old.


[15]    Your mother lives in Rotorua and
has been suffering from Alzheimer's for
some time. You visited her periodically and you indicated that your father passed
away while
you were in custody in late 2008. You describe your upbringing as sad
and strict.


[16]    In relation to employment, you worked
voluntarily at the Ngongotaha rail
park for seven years. During this time you were receiving a sickness benefit due to
ongoing depression.
You had previously employed by the Rotorua City Council as a
maintenance engineer for 17 years.


[17]    You state that you did
not commit the offences and that you cannot believe
how much the victim lied. You further stated that the victim did not ask you
to stop
and that you did not hold her down.


[18]    The probation officer has noted that you do not show any signs of remorse.


[19]    The probation report refers to your previous convictions, the fact that you
attended the Te Piriti child sex offenders
treatment programme and the Te Piriti post-
programme whilst on parole. It is to your credit that you did that programme, but the
difficulty is that, in relation to the victim's 12 year old sister, you appear not to have
applied the principles which you would
have learnt in that programme. You are
assessed as being a high risk offender given your denial of culpability, your failure to
show
remorse, your previous offending and the fact that you have previously
undertaken rehabilitation programmes.

Previous convictions


[20]   You have numerous previous convictions for sexual offending. In 1996, you
were sentenced to seven years' imprisonment for
unlawful sexual connection (three
counts), permitting an indecent act (three counts) and doing an indecent act (three
counts). I
have read the sentencing notes in R v Crisp HC ROT S 64/96 4 October
1996. Cartwright J described how the offending arose out of
sexual assaults on your
stepdaughter over eight months. Your stepdaughter was between 12 and 13 years of
age at the time of the offending.
She estimated that the offending occurred 20 to 30
times and included masturbation, oral sex and conduct close to full intercourse.


[21]   In 1976, you were sentenced to borstal training for indecently assaulting a
female (two counts) and obscene exposure (two
counts). In Dr Kumar's report he
refers to the circumstances of the 1976 offending.         You stated that you were
urinating in
a bush and a girl you knew asked what you were doing. You then state
that you turned back and pinched her bottom in a playful way.
You say that she was
pressured by her family to lay charges.         A similar explanation was given to
Mrs Johnston. Earlier in
1976, you were sentenced to three months' residential
periodic detention for obscene exposure.


Purposes and principles of sentencing


[22]   The Sentencing Act 2002 (the Act) requires that I keep a number of purposes
and principles in mind when deciding on an appropriate
sentence. In your case, I
have specific regard to the following purposes of sentencing as set out in s 7 of the
Act: the need to
hold you accountable for the harm done to the victim and the
community; the need to promote in you a sense of responsibility for, and an
acknowledgement of, that harm; the need to provide
for the interests of the victim;
the need to denounce your conduct; the need to deter you and others like you from
committing the
same or a similar offence; the need to protect the community from
you; and the need to assist in your rehabilitation and reintegration.

[23]   In sentencing you, I also take into account the principles of sentencing
according to s 8 of the Act, including: the need
to take into account the gravity of
your offending, including the degree of your culpability; the need to take into
account the seriousness
of this type of offence in comparison with other types of
offences; the need to consider the general desirability of consistency
with
appropriate sentencing levels and with similar offences; the need to take into account
the information provided to the Court
concerning the effect of the offending on the
victim; the need to take into account particular circumstances of the offender that
would mean an ordinarily appropriate sentence would be disproportionately severe;
and the need to impose the least restrictive outcome
that is appropriate in your
circumstances.


[24]   Where a person is convicted of sexual violation a sentence of imprisonment
must
follow, unless the Court considers that the person should not be sentenced to
imprisonment: see s 128B of the Crimes Act.


Aggravating
and mitigating factors


[25]   The Court of Appeal in R v Taueki  [2005] 3 NZLR 372 sets out the orthodox
approach to sentencing. Accordingly, I will look at a suitable starting point based on
the features of the
offending, and then adjust the starting point according to any
mitigating and aggravating features relating to you, the offender.


[26]   I first consider the aggravating features of the offending.          The Crown
submissions have summarised the aggravating
factors. These include the damage
and harm from the offending. The victim impact statement details the impact of
your offending on
the victim. Fortunately, it seems that the victim has not suffered
long term harm from the offending, although this may not be known
for many years
into the future. But it does seem that the victim has been able to move on and in that
regard she is fortunate. Of
course, one aspect of the harm that she suffered is the fact
that she has had her relationship with her stepfather of 12 years destroyed.
I accept
that without question that your offending has caused harm to the victim, although it
is difficult to predict precisely the
future consequences for the victim.

[27]    The next aggravating factor is the fact that you abused a position of trust in
relation
to the victim. You worked with the victim's stepfather. You became a
family friend and would occasionally stay overnight at the victim's
family home. I
have no doubt that you intentionally sought out this friendship and pursued
opportunities to spend time with the victim.
You entered the victim's room on the
basis of listening to music with her. The parents trusted you and the offending
demonstrates
a serious abuse of your position of trust, particularly given that the age
of the victim was 18 years at the time.


[28]    I consider
that there are no mitigating factors relating to the offending.


[29]    Turning to the aggravating features relating to you, the
most serious of course
are your previous convictions. You have 11 previous convictions for sexual offences
and two for obscene exposure.
I must treat these as serious aggravating features in
this case.


[30]    In terms of you, the offender, again there are no mitigating
factors. This is
not a case where I can give you credit for having pleaded guilty. I note that you
continue to deny responsibility
and do not show remorse.


Crown submissions


[31]    The Crown submits that the aggravating features include breach of trust,
harm
to the victim and your previous convictions. The Crown correctly submitted
that there are no mitigating factors.


[32]    In relation
to preventive detention, the Crown submitted that you have a
serious pattern of offending ­ present offending, past offending and
related
inappropriate conduct towards the victim's younger sister.           Then there is the
seriousness of the harm to the community
from your offending and the information
before the Court indicating a tendency to commit serious offences in the future, your
failure
to address the causes of your offending, particularly given that you have had
treatment through the Te Piriti programme and the follow-up
course. The Crown
submitted that a lengthy finite sentence is not adequate for the protection of society.

The Crown correctly noted
that, given the circumstances of this offending, an
extended supervision order would not be available if a finite sentence were imposed.
The Crown therefore submitted that you present a significant and ongoing risk to the
safety of members of the community.


[33] 
 The Crown invited the Court to consider a sentence of preventive detention
as being appropriate.     Counsel highlighted the serious
pattern of offending,
persistence with high risk situations and your high risk of re-offending. The Crown
did not seek to extend
the minimum non-parole period of five years that must be
imposed if you were sentenced to preventive detention.


[34]   Looking
at the position regarding a finite sentence, the Crown submitted that,
if preventive detention were not imposed, then a starting
point would be in the range
of five to seven years' imprisonment. The Crown submitted that an uplift would be
appropriate because of your
previous sexual offending. Therefore, a final sentence
in the range of eight to eight and a half years' imprisonment would be appropriate.
Further, a minimum period of imprisonment greater than one-third would be
appropriate.


Defence submissions


[35]   Mr Edward provided
helpful and comprehensive submissions on the case law
relating to both a finite sentence and preventive detention.            Mr
Edward
acknowledged your previous offending, the seriousness of the harm to the
community from your offending, and the indications
in the material regarding a
tendency to commit serious offences in the future. Responsibly, Mr Edward noted
that you have completed
the Te Piriti child sexual offending programme.


[36]   Mr Edward submitted on your behalf that a finite sentence is appropriate
on
the basis that an extended supervision order might be available. However, in oral
submissions Mr Edward acknowledged that this
was not available because of the
provisions of s 107B(2) of the Parole Act 2002. Therefore, the principle to which
Mr Edward had
referred in R v Mist  [2005] 2 NZLR 791 (CA) could not apply.

Health assessor reports


[37]   There is a report from Dr Kumar dated 27 July 2009. In the course of that
report, Dr Kumar referred to your having entered a guilty plea. I asked counsel to
explore whether this was an error or what led
to this observation. I have received a
helpful letter dated 12 August 2009, copies of which were available to counsel. In
the letter
Dr Kumar states as follows:

       As noted in your letter Mr Chrisp had given me the impression that he had
       entered a guilty
plea on legal advice but in his mind he was not guilty.
       Furthermore as noted in my letter it is not for me to decide whether
       Mr Chrisp did or did not commit the offence or whether the legal advice was
       indeed offered to him. From my perspective
his reluctance to accept
       responsibility for a crime that he has been found guilty of and is being
       considered for sentencing
is a factor that is often associated with future risk
       of re-offending.

       I would therefore like to respectfully state
that the opinions expressed in my
       earlier report dated 27 July 2009 and the recommendations made in it, are to
       remain
unaltered.

[38]   Dr Kumar refers to a pattern suggestive of serious and longstanding sexual
offending. Dr Kumar states:

     
 ...He committed his first sexual offence at a young age i.e. at the age of 17.
       Since then he has been convicted for three
counts of unlawful sexual
       connection with female 12 to 16, three counts of permits indecent act, male
       with girl 12
to 16 and three counts of does indecent act male with girl 12 to
       16. Though Mr Chrisp can identify and describe the strategies
he had
       learned to keep himself and potential victims safe since his release in 2001,
       his subsequent behaviour does
not demonstrate any evidence of application
       of this learning...Mr Chrisp demonstrates a pattern of seeking proximity
    
  with the young females using their families and by providing material gifts
       in order to win their proximity. This pattern
of behaviour is consistent with
       that demonstrated by people who pose a serious risk of committing sexual
       offences against
minors.

[39]   Dr Kumar also noted that the risk of committing a sexual offence is often
associated with certain dynamic factors.
Dr Kumar stated:

       ...Such factors may be amenable to change and include cognitive distortions
       (distorted patterns of
thinking about the offence, impact on victims and roles
       played by victims) behavioural patterns (such as grooming potential
victims)
       and underlying mental illness. When asked about the impact of his actions
       on his victims or alleged victim
Mr Chrisp tends to either deny
       responsibility, shift responsibility onto the victims or minimises the impact
       of his
actions on his victims. With regard to his first sexual crime he

        continues to believe that he was wrongfully convicted
due to coercion by the
        victim's family. With regard to the second set of offences committed in
        1996 Mr Chrisp minimises
his actions by saying he only "touched her up".
        With regard to the index offence, despite entering a guilty plea Mr Chrisp
        believes that he had mutually consensual sexual contact with the victim.
        Furthermore, he minimises the sexual nature
of his interactions with the
        alleged victim's younger sister (aged 12)...

        (emphasis added)

[40]    With respect
to the above observation, the letter of 12 August 2009 clarifies
the position.


[41]    Dr Kumar stated that your behaviour since
release in 2001 has indicated
consistent grooming of young females in disadvantaged circumstances. He also
noted that you have committed
sexual offences irrespective of the stability in your
relationship. For example, you offended against your stepdaughter while in
a stable
marriage and your first sexual offence was committed whilst in a stable relationship.


[42]    Dr Kumar noted that you present with certain actuarial factors that are
reported in groups of individuals with a high risk of committing sexual offences.
These factors include young age at first offence,
history of supervision failure,
history of disruptive upbringing, dysfunctional childhood, poor educational and
vocational history,
current social isolation and intra- and extra-familial offending.


[43]    There is also a report from Mrs Nicola Johnston, senior
psychologist. She
noted that your primary responsive barrier to effective treatment is your firm denial
that your current offending
comprised an offence. Other potential barriers are your
personality characteristics and emotional and interpersonal functioning,
as these
factors may interfere with your ability to participate in treatment, relationships and
the gains that you are able to make
from treatment.


[44]    Mrs Johnston assessed you on the Automated Sexual Recidivism Scale
(ASRS) as being in the medium to high
risk category, taking into account your
current convictions. Mrs Johnston notes that ASRS medium to high risk category
offenders
sexually re-offend at a rate that is approximately twice that of the average
risk.   Mrs Johnston noted that you have had two unrelated
victims, which is
associated with heightened risk of re-offending.

[45]   Mrs Johnston assessed you in the high risk group on the
STABLE-2007
measure.   The STABLE-2007 factors identified as problematic for you include
significant social influences (negative),
capacity for relationship stability (able to
have a long-term relationship, although not in one at the present time), emotional
identification
with children, general social rejection/loneliness, poor cognitive
problem solving skills, negative emotionality/hostility, sex drive/sexual
pre-
occupations, sex as coping mechanism, deviant sexual interests and co-operation
with supervision.


[46]   Mrs Johnston also
assessed you using the PCL:SV and found you to have a
below average score. However, she noted that you had a high score on Factor
1
(interpersonal and affective deficits). This score was based on your superficiality,
grandiosity, deceitfulness, lack of remorse
and empathy and failure to accept
responsibility for your actions.     Mrs Johnston states that it is likely that these
interpersonal
characteristics have facilitated your sexual offending, including
enabling you to overcome victim constraints and convincing others
to collude with
you regarding your innocence. Mrs Johnston states that these factors may pose a
significant responsivity barrier
with respect to the prognosis of any future
intervention.


[47]   Mrs Johnston concluded:

       Based on the actuarial data from
the ASRS and PCL: SV combined with
       STABLE- 2007 assessment of risk, Mr Chrisp is considered to be at a high
       risk of
engaging in further sexual offending if the identified risk factors
       remain present: negative social influences who agree with
his denial of risk,
       the absence of a stable relationship with an appropriate intimate partner,
       emotional identification
with and attribution of adult qualities to children,
       feelings of loneliness, poor problem-solving skills, negative emotionality
       and hostility, sexual pre-occupation, using sex as a means of coping and
       deviant sexual interests, and poor response
to supervision as well as
       personality characteristics conducive to offending, as assessed by the
       PCL:SV.

[48]   Finally,
Mrs Johnston noted:

       Mr Chrisp is assessed as being at high risk of further sexual offending
       involving either a young
girl or young woman following release from prison.
       Despite completing one of the Department of Corrections intensive child
sex
       offender programmes, he continued to place himself at risk while he was
       living in the community...Mr Chrisp now
requires an adult sex offender

        treatment programme that also targets personality factors conducive to
        offending and his prognosis would depend
on his willingness to
        meaningfully engage in such treatment...his denial of his offending
        behaviour poses a significant
barrier to the successful completion of
        treatment. Mr Chrisp's risk of serious sexual offending must be seen as
        likely
to endure without his successful completion of intensive targeted
        intervention.


Finite sentence of imprisonment


[49]
   I take as the lead offence the charge of unlawful sexual connection. There is
no tariff case for this type of offending, but I
have considered the cases of
R v Hayward  [2008] NZCA 172, R v Rongonui  [2009] NZCA 279 and R v A  [2007]
NZCA 301.


[50]    Of course, each case must depend on its facts, but if I were minded to impose
a finite sentence of imprisonment, I would
have adopted a starting point in the range
of six to seven years. Then taking into account the aggravating factors, it would
have
been appropriate to add a suitable amount, adjusting that figure upwards so that
the final sentence would have been in the range
of eight to eight and a half years. A
minimum period of imprisonment would have been appropriate.


Preventive detention


Eligibility


[51]    Mr Edward accepted that you meet the qualifying criteria in s 87(2)(a) and
(b) of the Act. The real question is whether
you are likely to commit another
qualifying sexual offence if you are released at the expiry date of a finite sentence:
see s 87(2)(c)
of the Act. In this respect, I am required to take into account a number
of mandatory considerations. These are set out in s 87(4)
of the Act, which provides:

        87 Sentence of preventive detention

        ...

        (4) When considering whether to impose
a sentence of preventive
            detention, the court must take into account--

           (a) any pattern of serious offending
disclosed by the offender's history;
               and

           (b) the seriousness of the harm to the community caused by the
               offending; and

           (c) information indicating a tendency to commit serious offences in
               future;
and

           (d) the absence of, or failure of, efforts by the offender to address the
               cause or causes of the offending;
and

           (e) the principle that a lengthy determinate sentence is preferable if
               this provides adequate protection
for society.

[52]   I have also noted and considered the leading authority on preventive
detention in R v C  [2003] 1 NZLR 30 (CA). I refer in particular [5] and [6]:

       The following general comments may be helpful before we address the
       circumstances
of the present case. In s 87(1) Parliament has clearly spelt out
       the purpose of preventive detention. It is to protect the
community from
       those who pose a significant and ongoing risk to the safety of its members.
       The purpose of preventive
detention, as described in s 87(1), is not
       materially different from the purpose of the sentence as described by this
   
   Court in R v Leitch  [1998] 1 NZLR 420 at p 428. Protection of society has
       always been a dimension of sentencing at common law. In the case of the
       sentence
of preventive detention it is the dimension which Parliament has
       indicated is to predominate. The qualifying offences set
out in s 87(5) are, as
       s 87(2)(a) indicates, all sexual crimes or crimes of violence. In the latter
       respect the range
of qualifying offences has been significantly widened.

       Under s 87(2) there are three preconditions to the imposition of a
sentence of
       preventive detention. In short, the three qualifiers are: (i) the commission of
       a qualifying offence; (ii)
when aged 18 or older; and (iii) the likelihood of
       the commission of another qualifying offence upon release. Their
     
 establishment does not mandate such a sentence. Its imposition remains a
       matter of discretion (the High Court "may" impose
such a sentence: s 87(3)).
       The statutory discretion again reflects the approach which was confirmed in
       Leitch at p
429. The sentence of preventive detention is not a sentence of last
       resort, albeit its imposition must be carefully considered.
The greater
       flexibility of the new regime, whereby parole eligibility can and often will
       occur earlier than at the
previous ten-year mark, reinforces the Leitch
       approach.


Pattern of serious offending disclosed by the offender's history


[53]   As noted, you have 11 previous convictions for sexual offending and
previous convictions for obscene exposure. The health
assessors' reports disclose
that the 1976 offending involved you pinching the bottom of a female that you knew.

The sentencing
notes for the 1996 offending reveal that it included masturbation,
oral sex and conduct close to full intercourse over approximately
eight months. The
offending was against your stepdaughter.


[54]   The current offending involved an older female aged 18 years
at the time.
You were able to befriend her and facilitate contact alone with her in the
circumstances I have described.


[55]  
Dr Kumar noted that you have a pattern of seeking proximity to young
females using their families and by proving material gifts to
gain proximity. I am
satisfied that there is a pattern of serious offending disclosed by your history.


Seriousness of the harm
to the community


[56]   Sexual offending has serious consequences for the victims and their families.
The incidence of sexual abuse
has the broader potential to impair the functioning of a
community. There is no doubt that this requirement is satisfied.


[57]
  In assessing the harm to the community from your offending, or any harm
likely to be caused from future offending, I take into
account the observations of the
Court of Appeal in R v Murphy CA165/99 28 July 1999 at [20]:

       ...The nature as well as the
extent of risk may be important. In a case such as
       the present, for example, where those put at risk are vulnerable young
       children, considerations of protective expediency may, in all the
       circumstances of the case, render even a lengthy
finite sentence an
       unacceptable risk. ...


Information indicating a tendency to commit serious offences in the future


[58]
  Dr Kumar is unable to identify exactly what the risk of your re-offending is.
However, he noted that your pattern of seeking proximity
to young females by using
their families is consistent with that demonstrated by people with a serious risk of
committing sexual
offences against minors. Since release from prison in 2001 you
have continued to groom young females in disadvantaged circumstances.
He also
noted that you deny responsibility for your offending (past and present) and sought

to shift responsibility onto the victims
or otherwise minimise the impact of your
actions on the victims. The fact of failing to accept responsibility after having been
found
guilty is a factor that is often associated with future risk of re-offending.


[59]   I have already referred to the risk factors found by Mrs Johnston on each of
the actuarial scales, ASRS, PCL:SV
and the STABLE-2007 measure.                  You are
considered to be at a high risk of engaging in further sexual offending if
the
identified risk factors remain present. Mrs Johnston noted a lengthy list of risk
factors that applied to you.


[60]   Mrs Johnston
also referred to the primary responsivity barrier to effective
treatment being your firm denial of your current offending. She noted
that you have
offended against two unrelated victims, which is associated with heightened risk of
re-offending. She also referred
to the fact that you had earlier completed the Te
Piriti programme.


[61]   In terms of a tendency to commit serious offences in
the future, I have also
considered the observations in the pre-sentence report.         The report records the
following:


    
  a)      The writer was unable to gauge your insight (if any) into the
               offending because you would not accept that
you committed any
               offences;


       b)      You showed no remorse;


       c)      You were assessed as a high risk
of re-offending; and


       d)      The report suggests that the offending is related to issues of sexual
               arousal
and the use of violence.


[62]   From the above reports and assessments, it is clear that there is information
available indicating
a tendency that you will commit serious offences in the future.

The absence of, or failure of, efforts by you to address the cause
or causes of
your offending


[63]   I have already referred to your completion of the Te Piriti programme.
Despite that, you have
still continued to place yourself in high risk situations and
engaged in high risk behaviour with the victim and her younger sister.
I do not need
to repeat what I have earlier said in this regard. Clearly, your denial of the current
offending makes it difficult,
if not impossible, for you to be accepted into and
complete the required programme to address the causes of your offending.


A lengthy
determinate sentence is preferable


[64]   I have to consider whether a lengthy determinate sentence would be adequate
to protect
society. I have already referred to the fact that I would be minded to
encourage a determinate sentence in the range of eight to
eight and a half years. But
I note that you are not eligible for an extended supervision order because of the
nature of this offending.


Conclusion


[65]   Having considered all of the mandatory statutory criteria, I am satisfied that
the only appropriate sentence
is one of preventive detention.         Your previous
convictions have provided you with the opportunity to reform. You have already
served a lengthy sentence of imprisonment for sexual offending and this did not
deter you from the present offending.


[66]   You
have completed the Te Piriti programme as I have discussed, but you
have not applied the principles and strategies that you learnt
to help you live in the
community.


[67]   Mrs Johnston assessed you as having a medium to high risk of re-offending.


[68]   I
consider that a lengthy determinate sentence would not provide sufficient
protection for the community. Therefore, a sentence of
preventive detention is the

only appropriate proportionate response to your offending.          I consider that is
necessary in
your case to adequately protect society from you.


Minimum period of imprisonment


[69]   The statutory provision provides for
a five year minimum period of
imprisonment when imposing a sentence of preventive detention. This may be
increased in certain circumstances,
which are set out in s 89(2) of the Act where that
is required for the purposes of ensuring the safety of the community in the light
of
your age and risk profile. I am conscious that the Court must follow the two-step
process under s 89(2): see R v C.


[70]   In
your case, counsel are agreed that there is no need for the Court to impose
a greater minimum than five years to meet the relevant statutory requirements. I too
am satisfied
that an appropriate minimum period that would be sufficient to
appropriately reflect the gravity of the offending is five years.
That will give you the
opportunity to address your offending and, if you choose to do so, embark on further
treatment and sexual
offending programmes. These will need to relate to sexual
offending against adults.


[71]   I therefore impose upon you a sentence
of preventive detention in respect of
both charges. The minimum period of imprisonment will be five years.


[72]   You may stand
down.




_________________________
                       Stevens J