R v McDonald [2014] NZHC 2054 (28 August 2014)

Last Updated: 1 September 2014

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF VICTIMS AND DETAILS OF CRIMINAL OFFENCES COMMITTED AGAINST VICTIMS PURSUANT TO SECTIONS 202 AND 205 CRIMINAL PROCEDURE ACT 2011

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-009-002921 [2014] NZHC 2054

REGINA

v

_{AARON RHYS McDONALD}

Hearing:	28 August 2014
Counsel:	C J Lange and C Boshier for Crown E Bulger for Prisoner
Judgment:	28 August 2014

_{REDACTED VERSION OF SENTENCING REMARKS OF WHATA J}

SUPPRESSION

[1] Before commencing the sentencing process I wish to address the media about:

(a) The identification of the victims; (b) The publication of the facts;

_{(c) The publication of the victim impact statements;}

R v McDONALD [2014] NZHC 2054 [28 August 2014]

(d) Respecting the privacy of the victims.

[2] I am suppressing the identities of the victims pursuant to ss 202 and 203 of the Criminal Procedure Act 2011. [ ] as a victim of sexual violation is entitled as of right to anonymity. Ms [ ] and Ms [ ] are entitled to name suppression on the basis that further publication of their names would cause disproportionate and undue hardship to them. While this latter course is unusual, I am advised that undue attention has been given to them, to the point of harassment, well beyond the public interest in the offending concerning them, due I think to the murder and rape offending.

[3] I also suppress the publication of the summary of facts under s 205 of the Criminal Procedure Act as it relates to the murder and rape that will shortly be presented by the Crown and essayed in my sentencing notes. The facts of this part of the offending are very distressing to [ ]’s family and their publication would cause undue harm to them. I propose, however, to circulate to the media an edited version of my sentencing notes, including a summary of the offending, for publication purposes at the conclusion of my sentencing. I also grant leave to the media to apply to me in the event that publication of the full summary of facts is still sought.

[4] Pursuant to s 27 of the Victims’ Rights Act 2002 I also direct that the victim impact statements by [ ]’s parents, her partner, and her brother and his partner and by Ms [ ] and Ms [ ] are suppressed as I consider that this is necessary to protect their privacy.

[5] This leads me to the final preliminary issue that I want to address.

[6] I am instructed by counsel that a member of the press media visited the family home of the murder victim on Tuesday morning seeking an interview with the victim’s parents as to their reaction to sentencing. That caused significant distress to the mother of the victim. While I acknowledge the significant and important role that the media plays in the public interest, [ ]’s parents have suffered greatly already as a consequence of their daughter’s rape and murder. They are in need of privacy. I would like therefore to take the unusual step of reminding the media present

therefore that you are obliged to respect the privacy of victims under the Victims’

Rights Act and that there is good reason for doing so in this case.

Sentencing

[7] Mr McDonald you have pleaded guilty to:

(a) The sexual violation by rape of [ ] – who I will refer to as Jane; (b) Jane’s murder;

(c) The aggravated robbery of [ ] and [ ], who I will refer to as Karen and Susan;

(d) Causing grievous bodily harm with intent to cause grievous bodily harm to Susan;

(e) Wounding with intent to cause grievous bodily harm to Karen; and

(f) Reckless driving.

[8] Murder is the lead offence and carries a maximum penalty of life imprisonment, which I impose. The remaining key issues for sentencing are the minimum term of imprisonment I must impose on you for the murder, whether I impose a sentence of preventive detention for the rape and the finite sentences for the other offending.

[9] Before I begin the next part of my sentencing remarks, I wish to acknowledge the victims and their families. I have heard and/or read the heartfelt thoughts of families of the victims through their victim impact statements. I know that another recitation of the summary of facts will be painful for you, but our system of justice demands that I read them in open Court. As I have said however I have made an order suppressing the summary of facts as it relates to the murder and rape. For avoidance of doubt I repeat that I will circulate an amended version of my sentencing

notes at the conclusion of my sentencing. Only the facts referred to in these notes may be published.

Relevant facts

[10] Mr McDonald, I now set out the facts of your offending. It is based on the summary of facts produced by the Police. I will address the facts you wish me to take into account as I do so.

[11] Jane was a 24 year old woman. She was living with her partner in an address in Christchurch.

[12] You were released from Prison on 9 October 2013 on parole and moved to

Christchurch in breach of your parole in mid March 2014.

[13] Shortly after arriving in Christchurch you met Jane’s partner in a bar and you were invited to occupy the spare room of the two bedroom house occupied by the victim and her partner.

[14] On Friday 28 March 2014 you were alone at the property. Jane’s partner was in Police custody overnight on minor charges and due to appear in Court the next day. You were aware of this fact.

[15] Jane arrived home from her job late in the afternoon.

[16] Jane was last seen at the Christchurch Central Police Station between

6.34 pm and 6.48 pm, delivering medication to her partner that he required overnight. She then returned to her home.

[17] Jane was using her cellphone to communicate with family and a friend until

10.17 pm that night. Her last communication was a text to her friend at that time.

[18] You were using your computer from 8 pm that evening. Analysis of the websites you visited shows that you began viewing pornography at this time.

[19] During the evening you also used a needle and syringe to inject yourself with methamphetamine.

Murder and sexual violation

[20] While watching pornography you attempted to engage in sexual activity with Jane. However she declined your advances. But you ignored her refusal and overpowered her, with the intention of having sexual intercourse with her.

[21] You then methodically and over a number of hours bound Jane to overpower her initial and increasing resistance to the unwanted sexual activity. You obtained four different bindings and two rolls of tape from different parts of the house. These bindings were applied with increasing severity to restrain and subdue her. She was under considerable duress over the course of the evening and early morning. You raped her on at least two occasions.

[22] You deny that Jane was tied up continuously and that it ended after the first sexual encounter and was not restrained again until you put her in a cupboard. I am disinclined to believe you. It does not fit at all with the evidence of binding or the fact and nature of the murder. In any event, I do not need to decide whether she was tied up continuously or restrained for the entire ordeal. I am satisfied beyond reasonable doubt that you forcibly restrained the victim for lengthy periods causing her very significant emotional distress. I return later to the nature of the bindings.

[23] It is not clear when during the attack you raped Jane. But analysis of activity on your computer shows that at various times during the evening of 28 March 2014 and the early hours of 29 March 2014, you accessed various websites which contained pornographic still images. The images were ‘thumbnail’ size and were linked to videos. But there is no evidence that you accessed these videos.

[24] The ‘thumbnail’ images on the computer screen included images in which a female was tied to a bed, a female was blindfolded with a neck strap connected to a ball in her mouth and a female was bound around the neck with her wrists and ankles also bound.

[25] Computer analysis showed that you accessed websites with pornographic images between 8 pm and 11 pm, between 1 am and 1.07 am and intermittently between 1.31 am and 5.52 am. Computer activity ended at 5.53 am.

[26] The attack commenced when you tried to get the victim to watch pornography with you but she refused. You jumped on her and began strangling her with your hands around her neck. Unfortunately this was simply the start of a lengthy period of violence, including sexual assault meted out by you to Jane.

[27] You say that there was some co-operative non-sexual and non-violent interaction including sharing cannabis and Jane assisted you by injecting you with methamphetamine. I doubt this very much, but even if there was some consensual activity between you at some stage during the evening, it does not mitigate the gravity of your offending.

[28] [Redacted]

[29] During that attack Jane offered you money to stop. She provided you with two bank EFTPOS cards and PIN numbers, one for her own account and another for her partner’s account, however, the attack continued.

[30] The occupants of a nearby neighbouring address stated that they heard the scream of a female that evening after 10 pm and prior to midnight.

[31] Between 11.30 pm and at about 1.30 am you sent various text messages to a friend. It is unnecessary to elaborate on what you said in the texts other than you referred to visiting the Casino, getting a room and having sex with a whore.

[32] The combination of the violence including strangulation inflicted on Jane coupled with the effect of the cords, cloth and tape caused her death.

[33] After the attack had concluded you covered Jane’s bound body with a duvet taken from the house and dragged her body out to her car. Drag marks made by the victim’s heels were found at the scene leading from your bedroom out the back door to her car. You put her in the boot of her car and covered her body with the duvet.

[34] At 8.45 am you then sent a series of text messages from Jane’s cellphone, purporting to be her, to her partner’s lawyer. The messages stated that the partner could not come back to the home address on Court bail and that he was no longer welcome.

[35] At 9.08 am you also sent a text message to the partner asking if he was ‘free yet’.

[36] At about 9.30 am, you drove Jane’s car from the address to a supermarket. You parked the vehicle, which contained her body in the boot, in the public car-park.

[37] You say that you put her in a public place believing she would be found quickly and that you could have taken her with you and maybe her body would never have been found. I accept that at face value, for what it is worth.

[38] Later that day you drove around Christchurch visiting retail outlets, withdrawing cash, purchasing fuel for your vehicle and items such as a tent, knife and camping equipment for the eventual trip to the West Coast of the South Island.

[39] I now turn to that trip and the offending against Karen and Susan.

West Coast – South Island circumstances – Karen and Susan

[40] On Sunday 30 March 2014 you were driving your Nissan Terrano vehicle on

State Highway 6, near Whataroa, Westland.

[41] Karen and Susan are overseas nationals and had been hitch-hiking their way down the West Coast en route to Queenstown. The pair had previously travelled extensively around the world, including hitch-hiking in a number of countries, without incident. You picked them up near the White Heron store in Whataroa. You say that at this time you had no intention of harming them. That may be so but it is hardly a mitigating factor.

[42] Your Terrano was a three door vehicle, requiring the rear seat passenger to access the rear seat via the front passenger’s door.

[43] Susan sat in the front passenger seat and Karen sat in the rear of the vehicle. During the drive you offered Susan cannabis, which she refused. Due to your demeanour, the victims began to feel uneasy with the situation.

Aggravated robbery (x2)

[44] Just before you reached Franz Josef township, you pulled off the main road onto a side street and drove for approximately 300 metres.

[45] You told the victims to keep still and not do anything stupid. You produced a metal bar and brandished it at Susan.

[46] You told the victims that they were going to get robbed of their personal items, threatening them with violence.

[47] Fearing for her life and seeing a car coming towards them, Susan undid her seat belt, opened the door of the moving vehicle, stood up, waved and screamed for help in an attempt to get the attention of the on-coming car.

Causing grievous bodily harm with intent to cause grievous bodily harm

[48] You grabbed Susan’s right arm in an attempt to pull her back into the car.

[49] She ripped her arm free from your grasp. You then pushed her out of the moving vehicle onto the road. You say you grabbed her arm to pull her back to stop her jumping out onto the road and injuring herself. I find that highly unlikely. But even if so, you plainly caused her to jump from the car with your threatening behaviour and gave her, even on your account, a slight push. All of this resulted in significant injury to her.

[50] Indeed, as a result of the high speed impact she received a cerebral concussion and a very deep abrasive wound on her right hip. She also received multiple soft tissue injuries or road burn including wounds to her right shoulder, right forearm, right lower leg and also left forearm. Susan was hospitalised for a period of seven days and during this time had to undergo plastic surgery for the

wound on her right hip. She will be left with a permanent scar measuring 10 cm on her right hip.

Wounding with intent to cause grievous bodily harm

[51] Karen believed Susan had been threatened with a double barrel shotgun.

[52] After you pushed Susan out of the car, you drove up the road a short distance before completing a u-turn and drove towards her while she was lying on the road. Karen believed that her friend was about to be run over. You say you never had any intention to run over the victim on the road even though both of these victims may have thought that was the case.

[53] Fearing for her friend’s life, Karen retrieved a fruit knife from her pack and held the knife to the front of your neck and demanded to be let out of the locked vehicle.

[54] You and the victim fought and wrestled for the knife. You then told her to get out.

[55] The victim let go of the knife to open the door as it was locked. You then grabbed the knife and stabbed her three or four times on the right side of her neck.

[56] The victim pleaded with you to stop at which point you reached forward and unlocked the door. She managed to climb out via the passenger door.

[57] These victims were very fortunate that the first two vehicles which stopped after the attack contained advanced paramedics who administered high level medical attention.

[58] As a result of the attack Karen received three wounds to the right side of her neck. One of the wounds caused a large amount of internal bleeding. A chest drain was subsequently placed in the victim and over two litres of blood drained from her body.

[59] She was hospitalised for a period of seven days. During that time she underwent extensive testing due to problems that developed with her vision as a result of her injuries. As a result of nerve damage from one of the stab wounds, one of her eyes began to droop.

[60] Karen could not leave the country for a further two months as she was unable to undertake aircraft travel due to her injuries.

[61] Both victims have suffered major post traumatic stress from this attack. They have both expressed that they believed they were going to die.

[62] You drove away from the scene in your vehicle with the personal belongings of both the victims.

[63] You then drove to a remote location South of Franz Josef on Waiho Flat Road. After travelling through a farm paddock you threw the victims’ belongings into an area of scrub.

[64] A description of your vehicle was circulated and at about 8.00 pm the Ross Police officer noted your Nissan Terrano vehicle travelling south on State Highway 6 near Hunts Beach Road.

[65] The Constable indicated to you to stop your vehicle by activating his marked patrol vehicles lights and siren.

[66] You failed to stop as signalled.

Reckless driving

[67] You continued to drive away from Police and at speeds exceeding 120 km/h, intermittently on the wrong side on the road for over 200 kilometres along the West Coast.

[68] On at least one occasion you stopped your vehicle and reversed towards the pursuing patrol vehicles requiring them to take evasive action to avoid a collision.

[69] You continued driving south of Fox Glacier until about 11.00 pm when your vehicle was brought to a stop using Police road spikes.

[70] At times throughout the pursuit you threw Molotov cocktails from your vehicle which exploded.

[71] You then got into a standoff with police who by now had responded from around the South Island, causing the activation of Armed Offenders Squads from three districts.

[72] You refused to come out of the vehicle and you were eventually taken into custody at about 3.00 am on Monday 31 March 2014.

[73] When spoken to you admitted the facts as outlined.

[74] During the statement you made to Police you made a comment that you seemed unsure if Jane was alive or not when she was placed into the boot of the car.

Personal history

[75] Mr McDonald, I am now going to address your personal history.

[76] Mr McDonald, you are a 39 year old male. There is nothing in your childhood which could possibly foreshadow your offending. You self report a strong relationship with your mother and that she is extremely shocked at what you have done.

[77] Your adult years, however, seem to have been blighted by drug use and in particular methamphetamine. That drug use might explain at least some of the [68] instances of offending committed in the period 1998 to 2009. That offending commenced with an unlawful entry into the home of an 81 year old woman and brutally assaulting her. You also disclosed to a health assessor other violent and dishonesty offending for which you have not been apprehended. But you have no previous convictions for sexual offending.

[78] Your pre-sentencing report records that you commenced consuming alcohol and smoking cannabis at the age of 13. You say that this progressed over the years to the point where you were manufacturing methamphetamine. You also reported that you were on anti-depressants until very recently but no suicidal tendencies were reported. You also reported suffering from dyslexia and scotopic sensitivity which apparently affected your schooling.

[79] The report also notes that you present with a lack of empathy and take no responsibility for your offending rather blaming a perceived lack of support while subject to earlier sentences. The report says that during the interview process you were completely calm and emotionless. As against this observation, I have a letter from you recording an apology to Jane’s family for what you have done.

[80] I have also had the benefit of a psychological assessment report by Fran Vertue and a health assessor’s report by Dr Sue Galvin. In your interview with Ms Vertue, you admitted to having grabbed Jane, dragged her to your bedroom intending to force her to have sex with. You stated that you raped her twice during the hours between 10 pm and when you strangled her with a cord sometime the next morning. You also admit in the interview to having forced various other sexual violations upon her. You also said that you tied her up and put her in a cupboard. Apparently you had more methamphetamine and tried to rape her again but could not do so.

[81] In terms of your offending against Karen and Susan, you record in the interview that you had no intention of robbing them and I have addressed your explanation for what occurred above.

[82] Returning to your personal characteristics, Ms Vertue notes that you present with a significant history of detected and undetected criminal behaviour starting in early adolescence. It notes that your antisocial behaviour has escalated to the point of the current convictions for causing serious physical harm and sexual violation.

[83] Ms Vertue observes that you only have a superficial impression of the impact of your actions. She says there is a lack of real insight into the suffering of others or empathy. She also observed:

Once he is committed to a plan of action, his ability to adjust the plan or his behaviour when confronted by unexpected events, or if the plan is not working, is limited.

[84] The report also observes that you have few coping strategies for managing strong and negative emotions. She refers to your mental inflexibility and that this means your capacity to problem solve adaptively is compromised. Ms Vertue also assessed your potential to reoffend against various measures. She concluded that your risk of sexual and violent reoffending at this time is considered to be high.

[85] Dr Galvin’s report was prepared without a clinical interview of you. Apparently you refused to participate in an interview with her. Dr Galvin provides an insight into your background which I have already described in part, above. It appears that you have successfully completed a number of programmes provided by Corrections though plainly they have not had a long term impact on your behaviour.

[86] Based on the information available to her, she describes traits of what are called the Cluster B personality disorders, namely antisocial, borderline, narcissistic, and histronic, characterised by emotional disregulation and dramatic behaviour. But she cannot offer a firm view about that. She also notes that she is unable to offer a final conclusive formulation of your psychological mechanisms because she has been unable to interview you. Her report also largely appears to be inconclusive about your risk of reoffending.

Victim impact statements

[87] I now want to address the victim impact statements. I have been asked not to dwell on them by the victims.

[88] I have read the impact statements of Jane’s parents, her partner, and her brother and his partner. Karen and Susan have also provided statements.

[89] Naturally Jane’s parents are emotionally distraught. As only parents can do, they describe the small and large moments of her life that have such special meaning and the shattering consequences of your conduct.

[90] Jane’s brother and his partner of six years both speak of the devastation caused by your actions. Like her parents. they talk about the everyday contribution made by Jane to their lives and how they have been left feeling empty and numb by her loss.

[91] Jane’s partner has also provided a statement. Jane was his first real love and his soul mate. He suffers from bouts of severe anger and anxiety and is in need of extensive counselling.

[92] Susan describes the events leading up to her ejection from your car, the trauma suffered by her, including her serious physical injuries, and the invasion into her private life as a consequence of your offending.

[93] Karen recalls how she thought you pointed a shotgun at Susan, her fear of you, seeing Susan being pushed out of the car and how she thought you were going to run Susan over. She describes her physical injuries and the broader cost to her of your offending.

Purposes and principles of sentencing

[94] I am now going to describe the principles that guide sentencing.

[95] I have to take into account the purposes and principles of sentencing outlined in ss 7 and 8 of the Sentencing Act 2002. There is a need to denounce your offending and to hold you accountable for the harm you have done. The sentence is intended to promote a sense of responsibility in you for that harm. There must be deterrence, both against future offending by you and against others who might act similarly. And I have to consider the protection of the public.

[96] The sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way. I must consider the

gravity of your offending and your culpability. I must also take into account any circumstances that might make an otherwise appropriate sentence disproportionately severe and any effects that the offending has had upon you. I must also consider you rehabilitation.

Murder

[97] I now address the appropriate sentence to impose upon you for murder. This begins with s 102 of the Sentencing Act 2002 which provides a presumption in favour of life imprisonment. This may be displaced only if such a sentence would be “manifestly unjust”. No such injustice exists here. Your sentence is one of life imprisonment.

[98] The next step is to consider the appropriate minimum period of imprisonment: the period you must serve before you are eligible for parole. If one or more of the circumstances in s 104 of the Sentencing Act 2002 applies, I am required to impose a minimum period of imprisonment of at least 17 years unless satisfied that it would be manifestly unjust to do so.

[99] Both Crown counsel and your counsel submit that your offending qualifies for a minimum sentence of 17 years imprisonment in terms of s 104. I agree. First, the degree of the culpability of your offending falls well beyond what has been called “the standard range of murder”. I have found it difficult to find a word or words to describe the level of depravity involved in your actions. Barbaric and inhumane provides some guide to my assessment of your conduct and the harm done by you. The facts speak for themselves, and the photographic evidence that I have seen simply confirms the horror that you visited upon Jane.

[100] Regrettably again, it is necessary for me to list the factors in terms of s 104 that demand the imposition of a minimum sentence of (at least) 17 years. On this I find that s 104 (1)(d), s 104(1)(e) and s 104(1)(i) are plainly evident on the facts. In summary:

(a) The murder was committed in the course of another serious offence,

including Jane’s rape. In fact, based on your own admissions, there

were multiple sexual violations of Jane leading up to her death.

(b) The murder was committed with a high degree of brutality, cruelty, depravity and callousness. As the Crown says, Jane died many hours after being attacked in her own home; [Redacted] and finally strangled with a cord before her body was abandoned in the boot of her car and left in the carpark of a local supermarket.

(c) There are additional exceptional circumstances, namely your offending against Karen and Susan. This was serious offending resulting in serious injuries to the victims.

[101] The Crown also says that your offending qualifies as home invasion. While your acts of violence were perpetrated in the sanctity of her home, I do not think that when Parliament referred to home invasion it was intending to capture residents otherwise permitted to be on the property. While I express no final view about this, I do not think that it adds to the overall gravity of your offending to describe it as a home invasion.

[102] Ms Bulger has asked me to note your instructions that in a methamphetamine affected state of mind you thought it was better to simply leave the victim in the boot of the car at a local supermarket rather than dumping her somewhere far away where she might never be found. She also submits that you did not attempt to conceal your movements. I do not consider that these are matters that mitigate in any way the callousness or depravity of your actions.

Uplift

[103] I must now consider whether there should be uplift from a starting point of 17 years minimum sentence. I have examined various authorities in consideration of resolving this issue.¹ I do not propose to canvas them now. The written version of

_{these notes will simply footnote them.}

¹ Compare R v Reid [2009] NZCA 281; R v Baker [2007] NZCA 277; R v Cui CA333/05,

28 September 2006; R v Weatherston [2009] NZCA 267; R v Kee HC Auckland CRI-2010-404-

23, 3 August 2010.

[104] In any event, I am satisfied that uplift in the starting point is plainly warranted. In addition to the factors just mentioned, I agree with Ms Boshier and Ms Bulger that the following further aggravating features are relevant:

(a) The use of a weapon in the aggravated robbery and wounding offending against the two victims on the West Coast;

(b) The fact that the offending against Jane occurred in her home and in particular that one rape occurred in her bedroom;

(c) The loss and harm caused to Jane’s family and friends, which is

incalculable;

(d) The harm, loss and injury caused to the two young women on the

West Coast;

(e) The inherent cruelty displayed in the offending relating to Jane

(though I have already factored that into my s 104 assessment); (f) The fact that all three victims were particularly vulnerable.

[105] Accordingly, there are multiple layers to your offending that call for a stronger response in terms of the proper applications of the principles of sentencing. In short, the combination of very serious crime and the callousness of your actions justify a significant uplift of six years. For completeness, in reaching this view I have taken into account the totality of your offending overall, the individual elements of which I will address below.

Mitigating factors relevant to the offending

[106] It is now necessary for me to turn to the mitigating factors relevant to the offending and then to you. In short, there are none. I have taken into account your claim that you left Jane at the supermarket rather than disposing of her in a way that meant she could not be found; that there were moments of consensual non sexual activity and that you did not set out to harm Karen and Susan. But I consider these

to represent, at most, the absence of aggravating factors rather than mitigating factors.

Aggravating and mitigating factors of the offender

[107] In terms of your personal circumstances, apart from your conviction for attacking an old woman in her home, your criminal history is not directly relevant to the murder offending – though the linkage to drug abuse is a concerning factor and I will come to this when I examine preventive detention.

[108] The attack on the old woman reveals a propensity to violence from a much younger age, but is not by itself a reason for separate further uplift given the weight I have already attached to the depravity of your offending.

[109] I can see no personal mitigating factors. Your belated attempts at evincing remorse carry little weight with me. I place greater weight on the presentencing report that you lack insight to your offending.

Guilty plea

[110] I consider that an early guilty plea in this case was relevant as you have not put the victim’s family to the further pain and expense of trial. But I also consider that the case against you was always compelling and a guilty plea simply delayed the inevitable.

[111] I have considered the Crown’s submission that lesser weight is given to guilty pleas in cases of serious murder. I am not entirely convinced about this, insofar as it affects the length of the minimum sentence above the statutory minimum of 17 years for serious murders. So I propose simply to assess the value of the guilty plea in a context where the case was very strong against you.

[112] On that basis I will allow a discount of 15% on the period above the statutory minimum of ten years to reflect the practice of this Court as suggested by both Counsel.

[113] In the result, on the murder charge, from a starting point of 23 years the minimum sentence you must serve for the murder will be 21 years.

[114] I now turn to the finite sentences for the other offending.

Rape

[115] As to the rape, I agree with the Crown that a finite sentence near the maximum available is justified in accordance with leading authority, namely R v AM.² Your counsel responsibly accepted this in light of the following factors properly identified by her:

(a) The fact that the offending occurred in the victim’s own home;

(b) The violence used against the victim;

(c) The fact that Jane was detained over a lengthy period of time;

(d) The nature and extent of the harm caused to the victim during the course of the offending;

(e) The fact that Jane was particularly vulnerable due to being home alone with you and was then kept in a cupboard and incapacitated by you during the detention so as to prevent her escape; and

(f) The multiple instances of offending.

[116] In light of these facts, subject to what I have to say about preventive detention, your offending attracts a starting point sentence of 18 years. I do not consider that your previous criminal history warrants any further uplift for the offending in this case but as it is not the lead offence I give that aspect no further consideration.

[117] There are no mitigating factors but as with the murder sentence, you are also entitled to a discount of 15% for the guilty plea on the total sentence, resulting in an end sentence of 15 years four months.

[118] Before I impose a finite sentence for the rape I must consider whether a sentence of preventive detention is necessary. I will come to that after I address the sentences for the offending against Karen and Susan.

The West Coast offending

[119] Firstly, the aggravated robbery. There is further consensus that there are several aggravating features to this offending, including the use of weapons, the proximity to the prior offending against Jane and the subsequent offending against Karen and Susan.

[120] Ms Bulger suggested that a starting point between five and six years imprisonment would be appropriate on the aggravated robbery charges. I agree that a six year starting point is appropriate for each. I also consider, however, that your previous conviction history for entering with intent, theft and burglary indicate an escalating trend and itself warrants a further uplift of one year on each of the robbery charges.

[121] There are no mitigating factors in relation to this offending and no mitigating factors relevant to you personally. You are entitled again to a discount on this offending of 15% on the total sentence.

[122] Accordingly, from a starting point of seven years, the finite sentence for the two aggravated robbery charges each is five years 11 months.

[123] On the two charges of causing grievous bodily harm and wounding with intent to cause grievous bodily harm, I adopt the starting point suggested by the Crown and not disputed by your counsel, namely that this offending falls within Category or Band 3 of R v Taueki.³ Having regard to the totality of the offending a

sentence in the order of ten years for each of the wounding related charges is appropriate.

[124] There are no further aggravating features or mitigating features to the offending or you personally. After a discount for a guilty plea, again of 15%, a finite sentence of eight years six months is appropriate on each of the wounding charges.

Reckless driving

[125] Counsel did not address me on reckless driving. Plainly your driving was seriously reckless. There is no point imposing a fine on you. Disqualifying you from driving seems rather pointless too. Accordingly I simply impose the maximum sentence of three months.

Preventive detention

[126] I must now consider whether I should impose a sentence of preventive detention. You qualify for a sentence of preventive detention because of your murder and rape offending.

[127] The purpose of a sentence of preventive detention is to protect the community from those who pose a significant and ongoing risk to its safety. In determining whether such a sentence should be imposed, I must take into account a number of factors including:

(a) Any pattern of serious offending by you;

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

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

(d) The absence of or failure of efforts by you to address the cause of your offending; and

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

[128] It will be obvious that I consider your offending to be in the most serious category. The assessment undertaken by Ms Vertue concludes that you represent a high risk of both sexual and violent reoffending in the long term. You refused to cooperate with Dr Galvin, so I have no other expert opinion upon which to base my assessment. There is also evidence that you have not taken steps to address a primary factor associated with your offending, namely your substance abuse.

[129] Balanced against this, the type and gravity of this offending is a marked departure from other offending by you and to that extent could be said to be out of character. I also remind myself that a sentence of preventive detention is not about punishing you further for the harm that you have done. Ms Bulger also noted that there had been a significant period of abstinence from substance abuse, during which there was no offending.

[130] But this is one of those cases where the scale and type of your sexual offending, combined with the assessed high risk of it re-occurring, compel me to the conclusion that preventive detention is required. I note in this regard that Ms Vertue considered that your risk levels meet the criteria for a prison based high intensity programme. It may be that these programmes combined with a long period free of substance abuse will bring about positive change. That is an assessment however better made in the future.

[131] For completeness I consider that this case is broadly (though not exactly) comparable to the case most relied on by the Crown, namely R v Reid.⁴ The broad nature of the offending was similar. In that case Mr Reid, like you, did not have a lengthy history of prior sexual offending or very serious violent offending, but the medical professionals in that case nevertheless expressed the view that he presented a very high risk of offending. While Ms Vertue does refer to the risk as being ‘very”

_{high, her opinion is that it is high.}

⁴ R v Reid, above n 1.

[132] Accordingly, given the clear information indicating a tendency to commit serious offences in future, I consider that I am obliged to impose a sentence of preventive detention in relation to the rape, with a minimum sentence of seven years eight months, being 50% of the sentence I would otherwise impose on you for the rape.

Summary of sentences

[133] Accordingly Mr McDonald, please stand. I sentence you as follows:

(a) On one count of murder I sentence you to life imprisonment with a minimum non parole period of 21 years;

(b) On one count of violation by rape I sentence you to a sentence of preventive detention, with a minimum non parole period of seven years eight months to be served concurrently with the sentence for murder;

(c) On one count of aggravated robbery of Karen I sentence you to a sentence of five years 11 months to be served concurrently with the sentence for murder;

(d) On one count of aggravated robbery of Susan I sentence you to five years 11 months to be served concurrently with the sentence for murder;

(e) On one count of causing grievous bodily harm with intent to cause grievous bodily harm I sentence you to eight years six months to be served concurrently with the sentence for murder;

(f) On one count of wounding with intent to cause grievous bodily harm I sentence you to eight years six months to be served concurrently with the sentence of murder;

(g) On the sentence of reckless driving I sentence you to the maximum three months imprisonment.

[Three strikes warning given.]

Solicitors:

Raymond Donnelly & Co, Christchurch

E Bulger, Christchurch