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High Court of New Zealand Decisions |
Last Updated: 13 April 2015
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2014-020-000430 [2015] NZHC 676
THE QUEEN
v
HUGH HEMI TUATUA TAREHA
|
Hearing:
|
31 March 2015
|
|
Appearances:
|
S Manning for Crown
EJ Forster for Prisoner
|
|
Sentence:
|
31 March 2015
|
SENTENCING NOTES OF TOOGOOD
J
R v TAREHA [2015] NZHC 676 [31 March 2015]
Introduction
[1] Mr Tareha, you appear for sentence having pleaded guilty to nine
charges under the Crimes Act 1961. In relation to the
first complainant, who
was aged 87, the charges are:
(a) One charge of assault with intent to commit sexual violation under s
129(2) which has a maximum penalty of 10 years’ imprisonment;
(b) Four charges of sexual violation by unlawful sexual connection under s
128B which has a maximum penalty of 20 years’ imprisonment;
(c) One charge of injuring with intent to injure under s 189(2) which
has
a maximum penalty of 5 years’ imprisonment; and
(d) One charge of burglary under s 231(1)(a) which has a maximum
penalty of 10 years’ imprisonment.
[2] In relation to the second complainant, aged 73, the charges
are:
(a) One charge of indecent assault under s 135 which has a maximum
penalty of 7 years’ imprisonment; and
(b) One charge of burglary under s 231(1)(b) which has a maximum
penalty of 10 years’ imprisonment.
[3] On 4 February 2011, you received a first warning under s 86B(1)(b)
of the Sentencing Act 2002 for your conviction for robbery.
Today you are to be
sentenced for stage-2 offences which requires the Court to give you a final
warning. I will give that at the
end of your sentencing.
[4] The Crown submits you should be sentenced to preventive detention. Given the outrageous nature of these attacks, your offending history, and your failure to have been deterred by imprisonment and past attempts at treatment in respect of past offending, I have given that sentence very serious consideration. But rather than
keeping you waiting to find out what your fate will be, I want to tell you
now that for reasons which I will explain, I have decided
by a fine margin to
impose a lengthy finite sentence of imprisonment instead. It will be a long
sentence, and because you have previously
received a first warning under the
three-strikes legislation, you will serve that sentence in full without
parole.
Procedural history
[5] Because it is relevant to the approach the Crown submits I should
take, I mention that you were due to be sentenced on 23
September 2014 but
sentencing was adjourned on that day and your previous counsel sought leave to
withdraw. Your new counsel, Mr
Forster, filed an application on your
instructions to vacate all guilty pleas but that application was dismissed by
Peters J.1
Facts
[6] I turn now to discuss the circumstances of this serious
offending.
[7] On 7 November 2013, at about 10.30 am, you were at an
associate’s address smoking synthetic cannabis and consuming
alcohol in
breach of your parole conditions. Shortly after consuming the synthetic
cannabis, you started walking and saw the first
complainant at her
letterbox.
[8] She was home alone when you attacked her. You had decided when you
were some 100 metres away that you would grab her with
the intention of raping
her. As she bent down to pick weeds from the garden, you came up behind her and
grabbed her backside. You
took hold of her arms and forced her into the house.
You then kicked the front door shut before forcing her to the floor, removing
her pants and underwear.
[9] You then inserted several fingers into her vagina, using such force as to cause bleeding. You licked her vagina, for what she says was around 15 minutes, and
licked her anal area. You inserted a number of fingers into her rectum,
causing her to
1 Tareha v R [2014] NZHC 3038.
defecate. That made you angry and you spat on her and kicked her repeatedly
about the buttocks, causing severe bruising. The first
complainant had
previously suffered a stroke which affected her speech. She attempted to call
for help but you covered her mouth
with your hand and told her to be quiet.
She suffered severe bruising around her throat, shoulders, hips and arms from
your sustained
assault.
[10] After leaving the first complainant’s residence, you
saw the second complainant, a 73 year old woman, sweeping
her porch. You
decided you would enter her home with the intention of committing a further
sexual assault. You approached her
and asked to use her telephone, pretending
that your car had broken down. Once inside the house, you made a fictitious
phone call.
You then told the second complainant she had nice hands and you
asked if she would like a kiss and a cuddle. She felt uncomfortable
and told you
to leave. You then deliberately walked over to her and brushed your arm against
her breast as you went out.
Victim Impact Statements
First complainant
[11] The first complainant’s son gave the statement on his
mother’s behalf. He said that when he came home on the
day of the
assault he found his mother in her bed where she had lain traumatised for about
five hours. She was treated for her considerable
bruising straight away. The
son described the attack as leaving his mother too frightened to go outdoors for
several months. Her
mail and newspaper were delivered to a tin next to her
front door and she was unable to pursue her love of gardening. It is only
recently that she has begun venturing outdoors again.
[12] Your attack was a violation of her family home and the trauma to the
first complainant has extended to her son and the other
family members who are
also victims of your offending in that sense.
[13] When the second complainant invited you into her home, she said she
did not realise that something was wrong and that you
sounded genuine and calm.
She heard you talking on the telephone and believed you when you said that you
had rung the AA; but then
she checked the redial on her telephone two hours
later and saw that you had only dialled three digits. The second complainant's
brother describes her as more nervous and not quite the same since the
incident.
Personal circumstances
Prior convictions
[14] Your conviction history indicates you have not responded positively
to a range of sentences designed on some occasions to
punish and deter you and
on others to give you an opportunity to reform. In 2004, 2006 and 2007 you
were convicted of theft, wilful
damage and assault, for which you received
non-custodial sentences, but in 2008 you were sentenced to 20 months’
imprisonment
for burglary. That offending involved your intruding at night into
a home where you believed a young woman to whom you were attracted
was living.
You were treated leniently for breaching your prison release conditions in 2009
and in 2010, you received another lenient
sentence of 100 hours’ community
work for burglary. You breached that sentence twice.
[15] Most recently, in February 2011, you were imprisoned for three years
and nine months for burglary and robbery, an offence
which involved breaking
into the home of a 68-year-old woman, in daylight; grabbing the woman by the
throat and threatening her;
and stealing $10. For this offending, you received
a first warning under the three strikes regime. You were on parole from this
sentence when you committed these current offences.
[16] Ms Berry, the psychologist who reported on you, observes that the
offending for which you are now being sentenced appears
to have been part of an
escalating pattern of violent offending, and a propensity to offend against
elderly women.
[17] In preparation for this sentencing I have received and have read: (a) a full pre-sentence report from a probation officer;
(b) a Maori Cultural Report under s 26(2)(a) of the Sentencing Act; (c) a psychologist's report; and
(d) a psychiatrist's report.
[18] They are comprehensive and insightful and I am grateful to the
report writers for their assistance. The reports have been
given to counsel and
they will be made available to the prison authorities and to the Parole Board.
I do not propose to summarise
the contents of each report, but I will tell you
the conclusions I have drawn from them.
[19] You are 31 years old and you have Ngati Kahungunu and
Ngati Awa whakapapa. You have a four year old son, but
you have not had any
contact with him for a long time. You have supportive whanau in Hawke’s
Bay. In the past you have undertaken
some seasonal orchard and farm
work.
[20] Aspects of your childhood experiences were highly unsatisfactory,
including extensive alcohol and drug abuse among family
members. This has led
to your having, in the view of one of the clinicians, a poorly developed sense
of your core identity and
difficulty trusting people and in forming confiding
relationships. That is relevant to your future susceptibility to treatment
because
you do not fully engage with clinicians of different
disciplines.
[21] You are assessed as being of low to average intellectual ability although you made reasonable academic progress at school. At the age of 18, you entered basic army training but that was not completed. You began to use cannabis and then methamphetamine. At the age of 19, you were first diagnosed with schizophrenia, a condition which has been worsened by continuing drug and alcohol abuse.
[22] You reported having few female sexual partners and you do not appear
to have had any long-term sexually intimate relationships.
You have reported
difficulties with sexual performance and claim to have resorted to cannabis to
assist in that regard.
[23] You have a history of mental illness that has been diagnosed as
schizophrenia or schizoaffective disorder which has a relapsing
and remitting
course; that is, it comes and goes. The symptoms of anxiety, depression,
disorganisation of thinking, paranoid ideation
and hallucinations have
historically been brought on by stress or drug abuse. It has been serious at
times and you have been suicidal.
There has been limited response to
medication, primarily because you have refused to medicate consistently on
account of claimed
side-effects. There is also evidence in the psychological
and psychiatric reports that you have learned to feign psychotic symptoms
for
personal gain and you have fabricated, withdrawn and then re-asserted
allegations of sexual abuse and trauma within prison.
[24] You have a history of severe drug addiction and you have been unable
to abstain, despite apparently making some progress
on the two counselling and
rehabilitation programmes you have attended. You admitted to using alcohol and
synthetic cannabis upon
release from prison in 2013 and you said that your use
of drugs had increased in the month prior to your arrest. When asked why
you
used drugs that you described as dangerous knowing it was in breach of your
parole conditions, you appeared defensive and you
blamed your friends. The
psychiatrist regards your addiction to drugs and alcohol as a central
problem.
[25] You do appear, however, to have engaged positively with the prospect
of being provided with Maori counselling and spiritual
care in prison. It is
recommended that you should be placed in a unit where you can access cultural
resources, including learning
te reo, waiata and mahi whakairo.
[26] With respect to the current offending, you have denied these offences to clinicians despite freely admitting the offences to police in an interview dated
15 November 2013. You shifted blame on your friends and insinuated that it
was the
Government’s fault for allowing synthetic cannabis to be sold. You could not provide
any rationale when you purported to deny the offending as to why the police
would falsely accuse you or why an associate would frame
you. There is a
suggestion, however, that your denial of responsibility may be motivated by
concern about the loss of support from
your family.
[27] The psychologist used a variety of assessment tools, which she
describes fully in the report, to determine your motivations
and the risk of
re-offending. One of the tests disclosed to Ms Berry the presence of
superficial, grandiose and deceitful traits
in your interactions with others, a
lack of genuine remorse and empathy for your sexual offending and a tendency not
to accept responsibility
for your actions.
[28] Given the frequency and the nature of your offending history, the probation officer assessed your likelihood of reoffending as high. You have not satisfactorily served your community-based sentences in the past, including the current parole. On
6 November, the day before you offended, the Parole Board amended your
special conditions by adding synthetic cannabis to the general
condition not to
possess or consume illicit drugs. You breached that condition in less than 24
hours. The pre- sentence report
writer said this raises concerns about your
motivation to reform.
[29] The psychiatrist, Dr Young, could not make a firm statement
about the likelihood of you committing future violent
or sexual offending. But
he considers it is possible that the risk of future offending could be reduced
if your mental health conditions
and your alcohol and drug addictions are
addressed.
[30] Ms Berry assesses you to be at a high risk of re-offending in a sexual manner. Such risk is likely to significantly increase in the context of mismanaged stress and substance abuse. Based on your criminal history, any future sexual offending could be impulsive or opportunistic in nature and victims are likely to be vulnerable, elderly women, who are likely to submit rather than react or repel you with violence. The psychologist's view, and it is a pessimistic one, is that until you are willing to acknowledge responsibility for your sexual offending, you would not be suited to departmental interventions in the prison environment.
[31] I conclude, therefore, that there is a high risk of your offending
at the moment and that will remain unless you develop
greater insight into your
offending, acknowledge your responsibility for it, resolve to end, and actually
end, your abuse of drugs
and alcohol.
Purposes and principles of sentencing
[32] In order to determine an appropriate sentence, the Court
must take into account the relevant sentencing purposes
of holding you
accountable for the harm done to the community by your offending; promoting in
you a sense of responsibility for,
and acknowledgement of, the harm; providing
for the interests of the victims; denouncing and deterring your conduct;
protecting the
community; and assisting in your rehabilitation and
reintegration.
[33] The Court must take into account the gravity of your
offending, the seriousness of the type of offence, consistency
with appropriate
sentencing levels and similar offenders who have committed similar offences, the
effect of your offending on your
victims and the need to impose the least
restrictive outcome appropriate in the circumstances.
Approach to sentencing
[34] The three stage approach to sentencing which is adopted2
requires me first to set a starting point for the sexual offending. I
will then uplift the sentence to reflect your offending against
the second
complainant. Next, I will adjust the starting point for personal aggravating or
mitigating factors. And, lastly, I will
give you a discount for your guilty
plea.
[35] That will result in a finite sentence which, as I have said, you
will be required to serve in full.
[36] Once I have done that, I will need to turn to the Crown's submission
that I
should instead sentence you to preventive detention.
2 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607; R v Clifford [2011] NZCA 360, [2012] 1
NZLR 23 at [57]-[60].
Crown submissions
[37] The Crown has sought a sentence of preventive detention and a
lengthy minimum period of imprisonment (“MPI”),
submitting that this
combination is necessary as a punishment and deterrent but primarily to ensure
the protection of the community.
Mr Manning has put it on the basis that it is
difficult in the present circumstances to predict how you will respond to
efforts
to rehabilitate you and that it is far safer to leave your fate in the
hands of the Parole Board. But if the Court does not impose
preventive
detention, the Crown submits that a long finite sentence is needed.
[38] With regard to the offending against the first complainant, the
Crown submits that your offending falls under the middle
of band three in the
Court of Appeal's guideline judgment R v AM3 and says that
since the same maximum penalty applies for rape as for unlawful sexual
connection, your offending can be compared with
rape cases. On that basis
the Crown submits a starting point of 13 years’ imprisonment to
reflect the totality
of the offending against the first complainant.
[39] It then submits an uplift of six to 12 months would be justified to reflect the offending against the second complainant. Then a further uplift of between
18 months to two years’ imprisonment is justified to account for
your previous convictions, the offending while on parole,
the breach of parole
conditions and the fact that the offending took place the day after you appeared
before the Parole Board for
a release progress hearing.
[40] Initially, the Crown submitted that you would be entitled to a discount in the range of 15 to 20 per cent but, in supplementary submissions, the Crown says your guilty plea discount should be considered in the light of your unsuccessful application to vacate those pleas. It argues that as the victims had to endure uncertainty around whether they would need to be give evidence, the discount should be reduced to about 10 per cent. In the Crown's view, a finite sentence of between
15 and 16 years' imprisonment would be
appropriate.
3 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
[41] As a sentence of preventive detention requires the imposition of a
MPI, the Crown submits that, in that event, a MPI of eight
to nine years’
imprisonment would be appropriate.
Defence submissions
[42] On your behalf, Mr Forster accepts the unlawful sexual connection as
the lead offence. He argues that your offending was
spontaneous, fuelled by
legal synthetic cannabis and alcohol and that it occurred in the context of an
underlying psychiatric illness.
Mr Forster argues that the offending was not
planned or premeditated.
[43] He properly concedes that the offending should be placed within band
three of the guideline but submits that it should be
at the bottom end of band
three at a starting point of around nine years’ imprisonment.
[44] Mr Forster concedes that the offending against the second
complainant ought to be marked by an uplift. In addition, counsel
submits that
the offending while subject to parole could also justify an uplift. Your counsel
acknowledges your previous convictions
for burglary, also warranting an uplift,
but he says that this Court should take care not to punish you twice for past
offending.
[45] In terms of mitigating factors, your counsel submits there
should be a reduction for remorse and for diminished
intellectual capacity. He
accepts that you now deny the offending but says that remorse and this changed
position can be reconciled
if the changed position is the result of
your psychiatric illness, and submits that the full guilty plea discount
ought
to be awarded.
[46] Addressing the Crown’s plea for preventive detention, Mr Forster submits that the availability of an extended supervision order for up to 10 years from release is a relevant consideration that weighs against the imposition of preventive detention. Further, the second strike status of the offending means that you will be ineligible for parole, also counting against preventive detention. Counsel submits
that a long finite term of imprisonment is the proportionate and the least
restrictive outcome possible.
Setting a starting point
[47] In setting a starting point, I have to bear in mind previous comparable cases. [48] The Crown has submitted that your offending involved an element of
premeditation. But I consider it to have been opportunistic rather than
premeditated as you appear to have been heavily under the
influence of alcohol
and cannabis at the time, and your intention to attack the first complainant
developed only when you were 100
metres or so from her.
[49] In this case, the violence you used against the first complainant
was more than the mild level of violence inherent
in sexual offending.
This is especially evident as you repeatedly kicked the first complainant
as she lay on the floor.
Another seriously aggravating factor is the element
of home invasion.
[50] The first complainant was particularly vulnerable because of her
age; and in addition, the frailty caused by her earlier
stroke added to her
vulnerability.
[51] She suffered physical harm in the form of severe bruising and
vaginal tearing. Whilst she did not require hospitalisation
for her injuries,
the emotional and psychological harm you caused cannot be understated. For weeks
she could not leave her home and
could not partake in activities that brought
her happiness, such as gardening. And the attack has had a significant impact on
her
family.
[52] The Crown submits that each of the sexual violations on the first complainant were at the highest level of seriousness for violations of their kind, and says they caused injury. But other cases before the courts have included examples of varying degrees of more serious violation including the use of external objects.4 I do not consider the violation in this case, while serious in the circumstances, to be the most
serious on the spectrum.
Analysis
[53] Having regard to the relevant cases referred to me by counsel and
others that I have considered,5 I place your offending towards the
lower end of band three, but not at the bottom, on account of the violence you
used; the vulnerability
of the victim – particularly her advanced age;
the element of home invasion; and the resulting harm.
[54] I adopt a starting point of 12 years’
imprisonment.
[55] An uplift is required to reflect your offending against the second
complainant. Again, she was an elderly woman, alone in
her own home. You
breached her trust. Luckily, the second complainant was not harmed but you had
the intention of gaining entry
to commit a further sexual assault. I add an
uplift of 18 months’ imprisonment, keeping in mind the totality principle
under
s 85 of the Sentencing Act and bearing in mind the close proximity of the
two incidents.
[56] That results in an overall starting point of 13 and a half
years’ imprisonment.
Personal aggravating and mitigating factors
[57] In terms of personal aggravating factors, you were convicted of
burglary in
2008 after stalking a young woman. In 2011, you were convicted of burglary
and
robbery after breaking into an elderly woman’s home. I uplift the
starting point by
12 months’ imprisonment, not to re-punish you for those past
convictions, but to instil in you a sense of accountability and
to recognise
that the earlier sentences have not deterred you from further
offending.
[58] Lastly, there is the matter that you offended while on parole and your breach of parole conditions.6 The Crown has emphasised that the condition not to use
synthetic cannabis was imposed only a day before the offending.
This flagrant
5 R v Finau [2012] NZHC 3027; R v Olver [2012] NZHC 706; R v Amohanga [1989] 2 NZLR 308 (CA). See R v Baldwyn [2012] NZCA 472 at [28] where the Court of Appeal reiterated that the R v AM bands require an assessment of culpability overall and do not allow for further uplifts in relation to specific aspects of the offending that do not involve unlawful sexual connection.
6 Sentencing Act, s 9(1)(c).
disregard of the Parole Board's order warrants a further uplift of
six months’
imprisonment.7
[59] You get no discount for remorse and I decline to give a discount
under s 9(2)(e) for diminished intellectual capacity or
understanding. The test
is whether the offender's diminished intellectual capacity or understanding
“materially contributed
to the offending”.8 I accept
that you have a history of mental ill health, but there is no evidence that you
were suffering from a psychotic or other
mental disability at the time of the
offending. And I do not consider that you are of “lesser moral
fault” because of
your mental health issues;9 you were fully
aware of what you were doing.
[60] After these uplifts, your sentence comes to a total of 15
years’ imprisonment.
Guilty pleas
[61] You initially entered pleas of not guilty in February 2014. You then
subsequently changed your pleas on 7 July 2014. As noted
earlier, you then
sought to vacate your guilty pleas. The Crown argues that the discount should
reflect the fact that you tried
to do that.
[62] The courts have acknowledged and the law accepts that a guilty plea
has many benefits, including saving the prosecution time
and resources and
particularly in cases of this kind of sparing victims the stress of giving
evidence.10 There is some merit in the Crown’s submission
that your decision to attempt to vacate the guilty pleas undermined these
benefits.
But the cost savings in not going to a full trial and sparing the
complainants the ordeal of giving evidence warrants, in my view,
a discount of
around 15 per cent.
[63] The least restrictive end sentence I consider to be appropriate,
therefore, is
12 years and nine months’ imprisonment.
7 Both to denounce that aggravating factor and to recognise the need for additional deterrence.
8 R v M [2008] NZCA 148 at [33]; Nelson v R [2014] NZCA 121 at [28].
9 R v M at [33].
10 Hessell, above n 2, at [45].
[64] Given that this is a stage-2 offence, you must serve the full term
of this sentence without parole.11
Should preventive detention be granted?
Approach to preventive detention
[65] I now turn to consider whether preventive detention should be
granted.
[66] The purpose of preventive detention is to protect the community from
people who pose a significant and ongoing risk
to the safety of
others.12 Preventive detention is not a sentence of last
resort.13 But judges have cautioned that its imposition must be
carefully considered. It may be premature and disproportionate to sentence
an
offender to preventive detention in some cases if the offender has a short
criminal record or has not had prior treatment.14 The approach to
take to preventive detention applications is to decide whether the end
sentence as determined by the usual
sentencing approach is sufficient to
protect the public.
[67] It is common ground that the three preconditions for preventive
detention are satisfied in this case, but whether preventive
detention should be
imposed here is a matter for the Court’s discretion.
[68] In exercising that discretion, I am required to take the following
factors into account:
(a) Any pattern of serious offending disclosed by your 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;
11 Sentencing Act, s 86C(4)(a).
12 Section 87(1).
13 R v C [2003] 1 NZLR 30 (CA) at [6].
14 R v Ranga [2014] NZHC 2583 at [29].
(d) The absence or failure of efforts by you to address the cause(s) of your
offending; and
(e) The principle that a lengthy determinate sentence is preferable if this
provides adequate protection for society.
[69] In terms of the level of potential risk of re-offending, it has been
said that “there has to be a significant, ongoing
risk of serious harm
before somebody is incarcerated indefinitely”.15
Analysis
[70] I will address the relevant factors in turn.
Pattern of serious offending (s 87(4)(a))
[71] The conviction history shows that you have now offended in the homes
of three elderly women, aged 68, 87 and 72 at the time
of the offending. I agree
that you seem to exhibit a pattern of offending that is often driven by sexual
desire and involving an
element of home invasion. All of the offending has been
against women which suggests a tendency to offend against those more vulnerable
and in situations where you can exert some control over the victims.
[72] I accept that prior to the current convictions, you did not have
convictions for sexual offending. But your offending has
increased in severity
over time and it has had sexual overtones. However, your conviction history is
relatively short and not all
of your previous offending can be categorised as
“serious”.
Seriousness of the harm to the community (s 87(4)(b))
[73] Mr Forster properly accepts that your offending has caused significant harm to the complainants. The nature of the attacks, committed in daylight and against
elderly women, has the potential to induce fear in the
community.
15 R v Parahi [2005] 3 NZLR 356 (CA) at [85].
Information indicating a tendency to commit serious offences in the future
(s 87(4)(c))
[74] The pre-sentence probation report writer assessed you as a high risk
offender given the frequency and nature of your offending.
Ms Berry, the
psychologist, considers you also to be at a high risk of reoffending in a sexual
manner and that such risk is likely
to increase if you do not manage your stress
or substance abuse. Dr Young, the psychiatrist, could not give an opinion but
pointed
out that your alcohol and drug use is a significant risk factor for the
future.
[75] The common thread in these reports is that you must address the
causes of your offending to reduce the risk of it reoccurring.
Efforts by the offender to address the cause of the offending (s
87(4)(d))
[76] The probation officer has questioned your motivation and ability to
address your offending given the opportunities you have
had in the past, the
state of your mental health and your refusal to take medication. The
psychologist describes the treatment programmes
that you have taken part in but
considers that you still show little insight. You told her that you did not
think that attendance
at alcohol and drug programmes have been of any assistance
to you.
[77] The Crown submits that the extensive counselling, monitoring and
numerous behavioural interventions that have been attempted
has not reduced your
offending, but has in fact seen an escalation in it.
[78] The psychiatrist, Dr Young, views your situation, however, in a more positive light. He says that as you mature further and with appropriate programmes and interventions, you may start to engage with your addiction issues. I doubt that you have yet been exposed to the full spectrum of programmes on offer. For example, Ms Berry points out that you have not yet engaged with a departmental psychologist.
Does a lengthy determinate sentence provide adequate protection
for society? (s 87(4)(e))
[79] The Crown submits that preventive detention has readily been imposed
in cases where a lengthy finite sentence would otherwise
have been appropriate.
It suggests that preventive detention motivates offenders to truly address the
causes of their behaviour
in a way that a lengthy finite sentence does
not,16 and says that preventive detention will protect the community
in a way that a finite sentence cannot.17 Against that, there is
concern that imprisoning someone indefinitely can be crushing and can stifle any
prospect of rehabilitation.
[80] Previous cases indicate that the court will not readily impose
preventive detention, a sentence which would mean that you
would not be released
unless and until the Parole Board determined you would no longer pose a threat
to the safety of the community.
[81] I recognise that there is a risk that you will simply do your time
and not address the causes of your offending if a determinate
sentence is
imposed today, and that aspect has caused me the gravest concern. But I think
it is too simplistic just to say that
it is safer to leave matters in the hands
of the Parole Board.
[82] You have not previously been sentenced to a long term of
imprisonment; the longest time that you have actually spent in prison
is a
little over two years. Nor have you previously been warned that preventive
detention might be imposed if you re-offended.18
Exercise of the discretion
[83] In the end, after considerable anxious thought, I have decided that preventive detention is not necessary to provide adequate protection for society. It is
significant, in my view, that the psychologist questions whether
the various
16 R v Jenkins [2014] NZHC 1923.
17 R v Emerson HC Tauranga CRI-2011-087-721, 21 September 2011.
18 See R v MH [2013] NZHC 709; R v Wilson [2009] BCL 459 (HC) at [49]; R v Komene [2013] NZHC 1844; R v Grey [2014] NZHC 789; R v Ranga, above n 14, at [29] where the Court declined to impose preventive detention in cases where the offender had not previously served a lengthy sentence and had not been previously warned about the prospect of preventive detention.
interventions to which you have been subjected were suitable to
cater to your complex needs.
[84] Also, I have found the Maori Cultural Report encouraging. The
report writer described how well you responded in her conversation
with you.
And it gave me the impression that you were more comfortable in that meeting
than in the other interviews where you were
described as agitated and
stressed.
[85] I think it reasonable and fair to give you an opportunity to engage
fully with your cultural heritage, so that you
might learn to deal
with stress and your dependency on alcohol and drugs. As you become more
self aware of your actions and
its consequences, you might start to take
responsibility for what you have done. Given that the range of interventions and
programmes
that you have been involved in to date has not had a lasting effect
on you, I consider it would be valuable for the Department to
fully adopt the
recommendations in the cultural report.
[86] Taking into account the need to impose the least
restrictive outcome, a determinate sentence will suitably address
the need for
community protection. The period I have determined to be appropriate is a very
long one and you must serve all of it.
You will not be released until you are
nearing your mid-forties.
[87] In addition, the Department will have the ability to seek
an extended supervision order for up to 10 years from
your release, giving an
opportunity for protective measures to be put in place.
Sentence
[88] Mr Tareha, would you please stand:
(a) On the charges of sexual violation, I sentence you to 12 years and nine
months’ imprisonment;
(b) On the charge of assault with intent to commit sexual violation,
three
years’ imprisonment;
(c) On the charges of burglary, three years’ imprisonment;
(d) On the charge of injuring with intent to injure, two
years' imprisonment;
(e) On the charge of indecent assault, six months’
imprisonment.
[89] Those sentences are to be served concurrently, that is at the
same time, meaning the total period you will serve is
12 years and nine
months.
[90] Mr Tareha, you have come close to a sentence of preventive detention
– very close. Unless you take the opportunity
to make use of the
rehabilitative courses available to you, with a view to preventing future
offending, you can expect preventive
detention on another occasion to be
inevitable.
The stage-2 warning
[91] Given your convictions for sexual violation, you are subject to the
three strikes law. As this is your second strike, any
future serious offending
will have serious consequences for you. I now give you the stage-2
warning.
[92] This is your final warning and it will explain the consequences of
another conviction for serious violent or sexual offending.
You will be given a
written notice outlining these consequences and Mr Forster can help you to
understand them.
[93] If you are convicted of any serious violent offence other than
murder or manslaughter after this warning is given, you will
be sentenced to the
maximum penalty for each offence, and you will be required to serve the sentence
without parole or early release
unless that would be manifestly
unjust.
[94] If you are convicted of manslaughter after this warning, you will receive life imprisonment with a minimum non-parole period of at least 20 years’ imprisonment unless the judge considers this minimum period to be manifestly unjust.
[95] If you are convicted of murder after this warning, you will be
sentenced to life imprisonment, and will serve that sentence
without the
possibility of parole unless the judge considers this would be manifestly
unjust.
[96] If in future you are sentenced to preventive detention, you will be
required to serve at least the maximum penalty of the
most serious offence for
which you are convicted unless the judge considers that this would be manifestly
unjust.
Minimum period which would otherwise have been imposed
[97] Mr Tareha, the Crown Solicitor has pointed out that there is one
other thing that I need to do which is just a formality
and it has no effect on
the sentence you are to receive. Although you will be required to serve the full
12 years and nine months’
imprisonment, I am required to indicate a
minimum period of imprisonment I would otherwise have imposed and that is one of
eight
years.
[98] Stand down.
..................................
Toogood J
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URL: http://www.nzlii.org/nz/cases/NZHC/2015/676.html