R v Nuntoon HC Auckland CRI-2010-090-8451 [2011] NZHC 1889 (8 November 2011)

Last Updated: 30 January 2012

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-090-8451}

THE QUEEN

v

LUI NUNTOON

Counsel: J Shaw for Crown

J Edgar and E Chan for Prisoner

Judgment: 8 November 2011

_{SENTENCING NOTES OF BREWER J}

SOLICITORS

Meredith Connell (Auckland) for Crown

Public Defence Service (Henderson) for Prisoner

Introduction

[1] Mr Nuntoon, you appear for sentence today on one charge of unlawfully detaining a girl without her consent with intent to have sexual connection with her,

_{one count of indecently assaulting the girl, and one count of supplying her with}

R V NUNTOON HC AK CRI-2010-090-8451 8 November 2011

cannabis. Your victim was aged 16 years at the time of the offending which occurred on or about 1 October 2010. You pleaded guilty to the charge of supplying cannabis on the first day of your jury trial on 1 August 2011. The jury convicted you on the other two charges.

[2] The maximum term of imprisonment on the charge of unlawful detention without consent and with intent to have sexual connection is 14 years. The maximum term of imprisonment for the charge of indecent assault is seven years‟ imprisonment. The maximum penalty for supplying cannabis to a person under

18 years of age is eight years‟ imprisonment.

[3] Your trial took place in the District Court. The reason you are being sentenced in this Court is because the trial Judge was of the view that a sentence of preventive detention should be considered. It is this Court which has the jurisdiction to sentence a person to preventive detention. Whether or not you should be sentenced to preventive detention is the major focus of today‟s hearing.

Facts

[4] Your victim was a 16 year old girl who had a boyfriend living in the same area where you lived. She did not know you personally but she recognised you as a local resident.

[5] On the morning of Friday, 1 October 2010, your victim left her boyfriend‟s house and walked towards a bus stop. In doing so she walked past you. Your victim was waiting for the bus when you drove up to her in your car and asked her whether she wanted a lift. She said that she was going home and you offered to take her home. After you had driven off with her you asked her whether it was alright if you smoked a cannabis joint first and the victim agreed.

[6] After stopping for cigarettes you drove to a lookout point, but there were other people there so you said you would go to another place. At that point your victim asked you if you would take her home and you agreed but said that before that happened you would drive a bit further and smoke your cannabis cigarette. You

did drive to another place and stopped to smoke cannabis. You asked the victim several times whether she wanted a puff and you would not take „no‟ for an answer. Eventually, at your insistence, the victim took the cannabis cigarette, had a puff and then gave it back to you. You were insistent that she smoke some more and despite her protests you kept insisting. She refused.

[7] You turned the conversation to sexual subjects and began to talk to the victim about her spending the day with you and going to get more cannabis. She said that she wanted to go home. You then began driving again and the victim used her cellphone to send text messages to a friend. You were aware that she was using her cellphone to send text messages but you did not try to stop her. You did ask her who she was sending text messages to and she gave you her boyfriend‟s name. You then started talking about sexual matters, asking your victim about what she and her boyfriend did when they had sex. You became very explicit in your questioning. At one point you put your hand on your victim‟s leg and rubbed it before taking your hand away. Your victim was scared and shaking. She continued to send text messages to her friend and in between times you continued to drive to other locations. At one of those locations, just as your victim got out of the car, the Police arrived, having been alerted by the friend.

Finite Sentence

[8] Before considering whether you should be sentenced to preventive detention, I need to consider first what the appropriate sentence would be if preventive detention was not imposed. That is a two-step process. The first step is to fix a starting point having regard to the seriousness of your offending by itself and taking into account the totality principle. What that means is that I have to look at what you did, in total, and fix a starting point taking into account how serious it was.

[9] I have considered the cases cited by the Crown and by your own lawyer. I

have also had research done of my own.

[10] You were, of course, sentenced for very similar offending by Ronald Young J in this Court on 15 September 2009.[1] His Honour adopted an overall starting point in the range of 18-20 months. However, on that occasion you were not charged with detaining for sexual connection, which is the most serious of the charges for which you appear for sentence today.

[11] For this current offending the Crown submits that I should take an overall starting point of three-and-a-half to four years‟ imprisonment. Your lawyer largely agrees with that and says that a starting point of three to four years is appropriate.

[12] I consider the aggravating features of this case to be the premeditation (you saw the victim, got your car, drove past her more than once before you approached her), the length of time that you had her in your car, your supply of cannabis which you insisted she take in the context of attempting to lessen her resistance to your attentions, and the indecent assault which you did to a very frightened young woman under your control. I have read the victim impact statement filed on behalf of your young victim and also the victim impact statement filed on behalf of your victim‟s mother. Both give testament to the anxiety that your actions caused and you are to a degree fortunate that your young victim has bounced back as quickly and as completely as she indicates. In these circumstances I am going to adopt the higher starting point in the range submitted by your lawyer as being appropriate, namely four years‟ imprisonment.

[13] The second step is to look at factors which are personal to you to see whether the starting point should be adjusted either up or down. You are 47 years old and were born in Samoa. You arrived in New Zealand in 1987 and shortly afterwards met and married your wife. You have three children ranging in age from 24 to

15 years. Your youngest child has special needs and you have been involved with her care.

[14] You have worked at various jobs but you have been unemployed since 2007. You have a gambling problem and as a result your family has had considerable

_{financial difficulties. You also have a problem with cannabis.}

[15] Of particular concern is that you have offended previously in very similar circumstances. In September 2007 you enticed a young girl into your car and supplied her with cannabis. You also touched her leg on three occasions. You pleaded guilty to that offending and that is the offending for which you were sentenced in 2009 by Ronald Young J. Your overall sentence on that occasion was one year and three months, but since you had already been in custody for longer than that period you were released immediately. There will have to be an uplift to the starting point to take account of the fact that your current offending was committed less than a year after your 2009 sentencing.

[16] Worryingly, you came to the attention of the Police in March 2002 and August 2003 under similar circumstances. On both of those occasions you were not charged but were warned by the Police. You accepted the factual background to those incidents in a memorandum of admitted facts used for the purpose of your trial in this case.

[17] You are assessed as being a high risk for re-offending by both the psychiatrist and the psychologist who have assessed you for this sentencing. The author of the pre-sentence report agrees. You show no remorse and you do not acknowledge that you were motivated by sexual impulse.

[18] There is nothing, therefore, to mitigate or reduce the starting point in your personal circumstances. I agree with Crown counsel and with your lawyer that the starting point must be adjusted upwards by one year to reflect your previous offending.

[19] Accordingly, an end point of five years‟ imprisonment would be the

appropriate sentence if I were to not order preventive detention.

Preventive Detention

[20] The purpose of a sentence of preventive detention is “to protect the

community from those who pose a significant and ongoing risk to the safety of its

members”.[2] The Court may impose a sentence of preventive detention if three threshold factors exist. They are:

(a) A person is convicted of a qualifying sexual or violent offence; and

(b) The person was 18 years of age or over at the time of committing the offence; and

(c) The Court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date of any sentence the Court is able to impose.

[21] In your case, Mr Nuntoon, both the charges of detaining without consent and indecent assault are qualifying offences. You were, of course, over 18 years of age at the time of committing the offences.

[22] The reports of the health assessors satisfy me that you are likely to commit another qualifying sexual or violent offence if you are released at the sentence expiry date of any determinate sentence that I might impose. On the material I have read, I accept the view of the psychologist, Ms Sharma, when she said:

... During times of stress that brought up feelings of failure in him, he escaped back into an irresponsible mode in which his need for escapism combined with a sense of entitlement and faulty thinking resulted in sexual offending. He seemed to have overcome inhibitors for sexual deviant motives with the use of cannabis.

Mr Nuntoon‟s choice of victims and modus operandi enables him to feel power and control in order to escape from feelings of inadequacy. His victims were seen as naïve and vulnerable who allowed him to feel powerful. He gets into a position of power and control by offering them a ride and then attempts to groom them by offering them cigarettes and getting them to smoke cannabis.

[23] The most worrying thing about you, Mr Nuntoon, is that you do not accept that you have a problem. You have consistently denied that you had any sexual

_{intentions towards your victims and, although you have said that you would be}

willing to undergo any rehabilitative courses ordered, they will not be effective unless you do acknowledge your problem and become motivated to address it.

[24] I find that all three pre-conditions to a sentence of preventive detention are present in your case. That is not the end of the inquiry.

[25] When considering whether to impose a sentence of preventive detention, I

have to take the following matters into account:

(a) Any pattern of serious offending disclosed by the offender’s history

[26] Under this heading I look only at your 2007 offending and the present offending. I am satisfied that the similarities between the two cases, and the fact that your latest offending was committed within a year of being released from prison on the 2007 offending, disclose a pattern of serious offending.

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

[27] This includes the harm that you have done to your victims. I accept that your offending is at the lower end of the scale for its type. But it is undoubtedly harmful to the community if young females cannot be safe from your attentions. I do have to take into account, however, that you have never coerced or threatened your victims and have enticed them into your car. While they have been in your car you have done your best to become sexually intimate with them. You have alarmed and frightened them. However, your touching has been at the lower end of the scale and you have not used physical force or threats to detain them, although you did try to grab your 2007 victim when she suddenly got out of your car.

(c) Information indicating a tendency to commit serious offences in the future

[28] Here I have regard to the psychiatric and psychological reports. I take into account the admitted facts of the 2002 and 2003 incidents. I conclude that you do have a tendency to commit serious offences in the future.

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

[29] This is the point that gives me the greatest cause for reflection in determining whether a sentence of preventive detention should be imposed on you. I take account of your lawyer‟s submission that you have never been directed by the Department of Corrections to attend any treatment or counselling to address the causes of your offending. You were held in custody on remand for the 2007 offending for a period greater than your eventual sentence. Therefore, you were released immediately upon being sentenced. As a result, you have never been assessed by the Department of Corrections Prison Service or by the Community Probation for parole purposes. You have had only a six weeks course of drugs counselling with no follow-up. I further take your lawyer‟s point that imposition of an adequate minimum period of imprisonment would provide a proper opportunity for you to undertake focused treatment and counselling for sexual offending while you are serving the sentence. Upon release your risk of re-offending can be further addressed by imposing appropriate standard and special release conditions, such as conditions requiring you to take part in rehabilitative and reintegrative needs assessments and suitable programmes to continue to address the causes of your offending. The Parole Board can therefore subject you to proper oversight for a period of up to six months following your release. I have to consider this factor in deciding whether preventive detention should be imposed.

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

[30] A sentence of preventive detention is no longer a sentence of last resort. Its purpose is to protect the community from those who pose a significant and ongoing risk to the safety of its members. It is not a punitive sentence. It is a preventive sentence. If the three conditions are found, as I have found them to exist in this case, that does not require a sentence of preventive detention because it remains a discretion for the sentencing Judge.

[31] I agree with Crown counsel that this is a finely balanced case. However, in all the circumstances, I think it would be wrong of me to impose a sentence of preventive detention at this stage when you have never been given an opportunity to be assessed and respond to programmes to address the underlying causes of your offending. I accept that the risk I run in not sentencing you to preventive detention at this stage is that you will continue to refuse to acknowledge your blameworthiness. However, I balance that against the relatively low level of your offending to this point.

[32] I am entitled to impose a minimum period of imprisonment. It may be imposed where the Court is satisfied that the minimum period otherwise applicable would be insufficient for the relevant sentencing purposes including community protection. It follows from what I have said that I am firmly of the view that the maximum minimum period of imprisonment should be imposed to give the prison system the maximum opportunity to address the causes of your offending in order to protect the community.

[33] Accordingly, on the charge of detaining without consent with intent to have sexual connection, I sentence you to a term of five years‟ imprisonment. I impose a minimum period of imprisonment of two-thirds of that sentence, namely three years and four months. On the charge of indecent assault, you are sentenced to a term of

20 months‟ imprisonment, and on the charge of supplying cannabis you are sentenced to a term of 12 months‟ imprisonment. All sentences are to be concurrent with each other.

[34] Mr Nuntoon, this is your last chance. If you offend again in this way, I am quite sure that you will be sentenced to preventive detention. You may think that you do not have a problem with approaching young females with a sexual motive. The psychiatrists and the psychologists disagree. So do I. You are a mature man and I can only hope that you take this opportunity. It will be the last one you are given. Stand down.

Brewer J

---

[1] R v Nuntoon HC Auckland CRI-2007-090-8562 15 September 2009.

[2] Sentencing Act 2002, s 87(1).