R v Henry [2018] NZHC 1893 (27 July 2018)

Last Updated: 10 August 2018

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2016-009-009047 [2018] NZHC 1893

THE QUEEN

v

LUKE JAMES HENRY

Hearing:	27 July 2018
Appearances:	B Hawes and C C White for Crown J Lucas for Defendant
Judgment:	27 July 2018
Reissued:	27 July 2018

JUDGMENT OF GENDALL J

NOTE: These sentencing notes were recalled and re-issued later in the afternoon of Friday 27 July and are to be read in conjunction with Gendall J’s minute of the same date.

R v HENRY [2018] NZHC 1983 [27 July 2018]

[1] Mr Henry, I am going to ask you to stand later. You may remain seated at the moment and I will ask you to stand at the conclusion of my sentencing remarks.

[2] Before I begin, can I just remind members of the media here, and all present, that there is a continuing suppression order relating to the complainant and any details which might identify the complainant in this case.

[3] Luke James Henry, you appear today for sentencing after being found guilty by a jury of:

(a) two counts of rape, which each carry a maximum possible penalty of 20 years’ imprisonment;

(b) one count of breaching a protection order, which carries a maximum possible penalty of three years’ imprisonment;

(c) two counts of male assaults female, which each carry a maximum possible penalty of two years’ imprisonment; and

(d) one count of kidnapping, which carries a maximum possible penalty of 14 years’ imprisonment.

[4] You are also being sentenced today for two related charges of male assaults female and one of breaching your release conditions, all of which you pleaded guilty to.

Facts of offending

[5] First I am going to being by setting out the facts that gave rise to and formed the basis for these charges, reasonably briefly.

[6] The victim of your offending, Mr Henry, was your ex-partner. On the evening of 30 November 2015, you went to her address and banged on the door. She told you to leave but you refused. The police were called and issued you with a trespass notice.
You refused to comply so they arrested you. You were convicted and sentenced to a short term of imprisonment.

[7] After being released in February 2016, you began seeing the victim again. However, she then broke the relationship off. You continued to ring and text her. She let you stay at her address and you ended up staying for a few weeks. During that period, you assaulted the victim three times, giving rise to three charges of male assaults female.

[8] On the first occasion, after an argument, you placed your hands around the victim’s neck and pushed her against the wall so that she could not breathe. On the second occasion, you blamed the victim for something you got angry over. You choked the victim in the hallway and then pushed her over so she fell and hit her head on the door frame. On the third occasion, you held the victim down while she was on the bed and choked her with your hand. When she fought back, you hit her lip with your elbow.

[9] On the morning of 5 August 2016, you went to the victim’s house. She locked her doors and told you to leave. While she had a shower, you entered an open bathroom window. She activated her family violence alarm. You were arrested and convicted for that. A protection order was issued against you in favour of the victim. You were sentenced to six weeks imprisonment.

[10] On 5 September 2016, you were released from Christchurch Men’s Prison. Part of your release conditions indicated you were to have no contact with the victim.

[11] Despite this, on 8 September, you went to the victim’s home and banged on her bedroom window. You persuaded her to let you inside to retrieve some of your property. However, once inside you refused to leave. You then told the victim that you would leave in the morning if she agreed to have sex with you. She reluctantly agreed.

[12] The next morning, the victim dropped you off at your car and told you to leave her alone. However, you insisted that you come back with her. You did so and took
the victim’s family violence alarm, cell phone and landline, preventing her getting help. You told her that she was now your hostage. The victim was upset and told you she did not want to be with you. As she walked out of her bedroom, you grabbed her around the neck from behind, tilting her backwards. This caused her to gasp for air. This gave rise to the fourth male assaults female charge.

[13] Over the course of that day, you raped the victim twice. You began to touch the victim as she lay on her bed and tried to kiss her. She told you she did not want to have sex with you. You continued to touch her body. When she protested you told her, “I’ve taken it from you before”. You digitally penetrated her and then proceeded to rape her for 5-10 minutes in a manner designed to hurt her. Later that day, you raped her again in a similar manner. While you raped her, you made derogatory comments to the victim.

[14] The next morning, you again refused to leave. However, the victim’s ordeal ended when she managed to secretly communicate with a friend who called the police. When the police arrived, you fled the house in your vehicle.

[15] Today, you have heard the victim bravely recount the impact of your offending. Understandably, it has had a serious impact on her emotionally and mentally, as well as on her children.

Criminal history

[16] At this point, it is appropriate to note some of your previous history of offending, as that is relevant to the sentence you should be given today.

[17] You have amassed 71 convictions since your first adult conviction in 2003. These cover a range of offending. You have tended to reoffend rapidly following release or expiration of sentence. You have 16 convictions involving or related to violence. The victims of your aggression include your parents, a woman and her two children with whom you were staying, and two intimate partners.

[18] In 2010, you assaulted your then partner when she was five months pregnant. In 2011, you assaulted her and threatened to kill her. Then in 2012, you committed
your most serious offending against her. Despite a protection order in place against you, you went around to her house and punched her in the head. You then left with your 21-month-old son, in breach of a parenting order. With your son in the car, you initiated a high-speed chase with police. You eventually stopped and handed your son over to police. You then returned to your vehicle and drove straight towards the officer who was carrying your son. You were sentenced to three years and four months’ imprisonment for kidnapping, assault with a blunt instrument, male assaults female and breach of the protection order. At this stage, you received your first-strike warning.

[19] You formed your relationship with the present victim shortly after being released from that sentence. Within three months you were before the courts for charges against her. You then began the series of offending which I have detailed above.

[20] As I have noted, the victim has bravely read a detailed victim impact statement to the Court which is chilling and concerning. Your counsel, Mr Henry, has said it is accepted that significant emotional and physical harm was caused to the victim and her family.

[21] A pre-sentence report is before the Court. It states that you, Mr Henry, refused to discuss the offences in detail and the report writer assesses your risk of reoffending and causing physical harm to others both as high.

[22] References and notes of support for you, Mr Henry, however, from your mother and your aunt are before the Court and I have had the opportunity to carefully read them.

Finite sentence

[23] I will now turn to assess the sentence that you should be given. The Crown, as you have heard, submits that you should be given a sentence of preventive detention. However, I will begin by determining the appropriate finite sentence, should I found that preventive detention is unnecessary.
[24] The lead charges here are those of sexual violation by rape. The guideline judgment for sexual violation is the Court of Appeal decision in R v AM, which sets out four sentencing bands as starting points in cases of sexual violation involving rape.¹ The Court lists a number of aggravating factors that help to determine the seriousness of offending and, therefore, which band it falls into.²

[25] I consider that the aggravating factors present in this case are as follows:

(a) First, violence, detention and home invasion – the rapes here occurred while you, Mr Henry, detained the victim in her home for about 24 hours and refused to leave. You took away her phones and alarm to prevent her calling help. During that period, you assaulted her, including grabbing her around the neck. This is violence beyond that inherent in this type of offending;

(b) The second aspect is premeditation – there is some level of premeditation evident in your actions. You informed a friend that you were going to track down the victim and hurt her, which is what you did;

(c) The third aspect is the vulnerability of victim – the nature of your prior relationship with her made her particularly vulnerable here;

(d) The fourth aspect is the harm caused to the victim – as she has shared today in her victim impact statement, your victim has suffered significant mental and emotional harm and has been diagnosed with PTSD; and

(e) The fifth matter relates to the scale of the offending and this is significant. You raped the victim twice in a manner designed to cause her physical harm and over a period of time during which you were detaining her in her own home.

¹ R v AM [2010] NZCA 114 at [90].

² At [37]-[52].

[26] Given all these factors, I consider that this offending falls at the lower end of what is known as band three. Sentences for band three are between 12 and 18 years and are appropriate where two or more of the aggravating factors are present to a high degree, or where more than three of those factors are present to a moderate degree. That is clearly the case here. In order to help me set the starting point, I will consider those set in a couple of similar cases.

[27] A 14 year starting point was set in R v Te Whiu.³ That case also involved a home invasion, although the victim was unknown to the offender. The offender held a knife to the victim’s throat and tied her hands behind her back. He put a pillowcase over her head and sexually violated her in a number of different ways. He then took the contents of her handbag and left. The Judge placed the offending at the lower end of band three and adopted a starting point of 13 years. The key aggravating factors were the level of premeditation, the use of violence, the home invasion and the scale of the offending.

[28] I consider that the use of a knife and physical restraints placed on the victim in that case of Te Whiu signifies a higher level of violence than we have here. The aspect of a significant home invasion, given it was a stranger, to some extent is also a greater feature.

[29] The second decision I want to mention is R v Winikerei. There, the offender and victim were long-time friends.⁴ The offender directed the victim to drive him to a house in an area she did not know. He detained her there for two days. When she tried to leave, he punched her and dragged her by her hair down some steps. This caused bruising all over her body. The offender raped her. The Judge took a starting point of 10 years and six months’ imprisonment.

[30] Your offending in my view, Mr Henry, is more serious than that which occurred in Winikerei, given that you raped the victim twice, you invaded her home and she was particularly vulnerable to you given the protection order she had and your previous offending against her.

³ R v Te Whiu [2013] NZHC 2308.

⁴ R v Winikerei HC Rotorua CRI-2008-029-1187, 25 June 2010.

[31] After considering the aggravating factors of this offending and other authorities, I will take a starting point of 12 years for the rapes. This starting point takes into account the kidnapping and male assaults female charges which form part of the context of that offending, and the fact you breached a protection order in doing so.

[32] On top of this, I apply an uplift of six months for the earlier assault charges and breaching your release conditions. This uplift takes into account the fact that you pleaded guilty to some of those charges.

[33] Given your history of offending, Mr Henry, and that you offended while subject to sentence at the time of this offending, usually an uplift of a further 12 months would be applied. However, as your counsel has properly noted before me, the Court of Appeal has stated that, given that this is your second strike, I must keep in mind that the purposes of denunciation, accountability, deterrence and community protection are also served by the removal of your right to parole.⁵ I refer to the decision of Wipa. I find that an uplift is therefore not necessary. The fact that you will have to serve your entire sentence adequately ensures the purposes and principles of sentencing are met here.

[34] Next, I turn to the issue of personal mitigating features. There are no personal mitigating features here. This would result in an end sentence of 12 years and six months’ imprisonment.

Minimum period of imprisonment

[35] Due to the fact, Mr Henry, that this is your second conviction for a serious violent offence, s 86C of the Sentencing Act requires me to order that you serve this sentence without parole if I am to impose a sentence of this type. Nonetheless, that section also requires me to state the minimum period of imprisonment (MPI) I would otherwise have imposed under s 86. I would have imposed an MPI under that section in this case of eight years, both for the purposes of denunciation and in order to protect the community.

⁵ Wipa v R [2018] NZCA 219 at [36].

Preventive detention inquiry

[36] As I have said earlier, the main question for me today, however, is whether the appropriate sentence in this case is to be one of preventive detention or, instead, a lengthy fixed term of imprisonment. I now turn to consider whether I should impose a sentence of preventive detention.

[37] The purpose of preventive detention is to protect the community from people who pose a significant and ongoing risk. Your age, Mr Henry, and the nature of your offending means that you potentially qualify for such a sentence.

[38] Section 88 of the Sentencing Act requires me to consider reports from at least two appropriate health assessors about the likelihood that you will commit a further qualifying sexual or violent offence. Two reports have been prepared, which I have considered, one by Annmaree Kingi, a consultant clinical psychologist, and the other by Cristina Fon, a registered clinical psychologist.

[39] The main thing I need to decide is whether I am satisfied, Mr Henry, that you are likely to commit another qualifying sexual or violence offence if you are released at the expiry date of a finite sentence. There are a number of things that the law says I need to take into account when making that decision.

Pattern of serious offending

[40] The first is your pattern of serious offending. First, I must consider whether you have a pattern of serious violent offending. Clearly, in my view, you do. What is especially concerning is that your violent offending has been increasing in seriousness since 2010. As I have already noted, you have 16 convictions involving or related to violence. I note too that a pattern of strangulation or choking has emerged and that is particularly worrying.

[41] Within three months of your release for your previous offending here, you came before the Court again for charges relating to your next intimate partner, the present victim. It is highly concerning that you began to engage in inappropriate behaviour in such a short time span.
[42] Your recent convictions have largely involved your intimate partners but I note, too, from reports before the Court that you have displayed aggressive and intimidatory behaviour while in prison, including against your own lawyer.

Seriousness of the harm to the community

[43] The second matter I need to consider is the seriousness of the harm caused by your offending to the community. The seriousness of this harm is reflected in the victim impact statement which we have heard. Violent offending of any kind causes harm to the community, but your tendency, Mr Henry, to engage in violence against those close to you, particularly your intimate partners, is very destructive.

[44] Ms Fon has noted in her report that you have persisted in contacting your intimate partners despite protection orders and non-association orders. These women are vulnerable due to the nature of their previous relationships with you and you have disregarded protections set in place for them. Violence of a domestic nature such as this is a serious issue in our community that does immeasurable harm.

Information indicating a tendency to commit serious offences in the future

[45] The third matter I need to consider is the information that is available indicating any tendency to commit serious offences in the future. Both the clinical psychologists, Ms Fon and Ms Kingi, used a number of tools to assess how likely it is that you, Mr Henry, will reoffend seriously in the future. Based on a measure known as the ROC*ROI measure, Ms Fon found that you were at a moderate risk of imprisonment for further offending within five years of being released. However, once the present offending is put into the calculation, Ms Fon noted it was likely you would be in the high risk band. Ms Fon also reported that on the VRS:SO risk measure, you are at a high risk of sexual recidivism.

[46] Ms Fon concluded that, based on all her assessments, you are at a very high risk of further violent offending and a high risk of further sexual offending within a five-year period of being released from any finite imprisonment term.
[47] Ms Kingi used the HCR-20 tool to assess your risk of further violence. This took into account what she said were factors like your violent and general antisocial attitudes, your poor employment history and conflict within jobs, your need for treatment and your limited social support. This tool assessed your risk of further violence as high.

[48] Ms Kingi also noted that you share many characteristics of the persistent or life-course offenders, which supports your identification as a high risk-offender. She identified you as having childhood onset conduct disorder, which is characterised by a pervasive pattern of disregarding and violating the rights of others, a callousness and impulsivity. She said you have difficulty experiencing a range of emotions such as shame, guilt and empathy.

[49] As noted by both the report writers, you have a pattern of offending against intimate partners. They say you lack insight into your current and past offending and tend to blame your victims for a number of your actions. Ms Kingi suggests that factors which suggest you are likely to offend in this way again are your hostility towards women, your sense of entitlement and your need for stimulation, control and dominance.

[50] The conclusion of both report writers is that you are at a high risk of reoffending in a violent sexual way.

Absence or failure of efforts to address causes of the offending

[51] The fourth matter I need to consider is the absence or failure of efforts on your part to address the causes of the offending. Ms Fon in her report states that you have not successfully completed any intensive, offence-specific programme. You declined to participate in the High Risk Personality Programme when offered in early 2014 and were removed from the Matapuna Special Treatment Unit Rehabilitation Programme the same year due, she says, to continuous abusive communications. You informed Ms Fon that you recently attended 10 individual sessions with Stopping Violence Services while in the community, and your counsel informs me that you have completed the STOP courses whilst in prison on remand.
[52] Ms Kingi notes however that, while you said you had gained some insights, any treatments in the past have not adequately addressed your risk of violence.

[53] Ms Fon in her report states that you have made no noticeable progress towards your goals. She considers that while you may have demonstrated some insight into your offending behaviour in the past, you appear to have significantly poor regulatory control over your behaviour and emotions. She states that you have externalised blame to others, minimised the harm you have caused, and tried to justify your offending. She considers there is no evidence that you can take full responsibility for your behaviour and that you have an extremely limited understanding of the harmful impact it has on others.

[54] Ms Kingi notes too that you have made statements that minimised the degree of violence you directed at your victims and its lasting impact on them. And you indicated here that you would be unwilling to repeat the Matapuna programme in Christchurch, she says, because you believe you will be treated unfairly.

[55] All of this, and the fact that all prior attempts at rehabilitation have been unsuccessful, tends to show a real absence on your part of any willingness to address the causes of your offending. Ms Fon considers that your current presentation suggests you would be unlikely to avail yourself of further therapeutic opportunities. This indicates to me that there are real and serious concerns that you will continue to have these issues and be at risk of reoffending when eventually released.

Principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[56] The fifth and last matter I need to consider is whether a lengthy finite sentence would be enough to protect society from the risks you pose, Mr Henry. If it is, then that is the sentence I should impose.

[57] In her report Ms Fon concludes that, as you were unlikely to display significant behavioural and attitudinal change, your risk of re-offending would need to be managed by external controls in the medium to long term. Ms Kingi agrees that you
would require considerable support and oversight on release. This will be the case irrespective of the sentence I impose.

[58] I take into account here also that an extended supervision order (ESO) could be applied for by Corrections if, at the time of your release, they are concerned that you continue to pose a high risk of violent offending. An ESO, extended supervision order, can be made for up to 10 years and can be further extended. It would mean that you would be under a restrictive monitoring regime and would provide a means of intensive oversight. A public protection order is also an option although the threshold is a little higher. While the Court of Appeal in a decision called R v Mist has described ESOs as “a potential safety valve which is now an inherent quality of a determinate sentence for relevant offences”, it also noted that it should not be seen as a back-up to prevent me from determining whether the standard for preventive detention has been met.⁶

[59] Notwithstanding these ESO aspects I have just mentioned, when I take into account all the factors I have already outlined, I have reached the view that the finite sentence of 12 years and six months’ imprisonment I mentioned earlier would not be appropriate here and would not adequately protect society given particularly, amongst other factors, your high risk of re-offending recognised by both health assessors and I conclude that the indeterminate sentence of preventive detention must be imposed. The fact too that a finite term of imprisonment (without parole) might provide little incentive for you, Mr Henry, to attempt to reform your behaviour by participating in available programmes, as the Crown has suggested here, supports my view that a sentence of preventive detention should be imposed.

[60] So, a sentence of preventive detention, in my view, is necessary. Your risk to society, Mr Henry, can be adequately managed by such a sentence of preventive detention in that it may provide some incentive to you to acknowledge your offending and to seek help for your problems.

⁶ R v Mist [2005] 2 NZLR 791; (2005) 21 CRNZ 490 (CA) at [100] and [59].

[61] At the very least, it would mean that you will not be released until such time as the appropriate health professionals are satisfied that you no longer pose a risk to the community.

Result

[62] Mr Henry, would you please stand.

(a) Mr Henry, on each of the charges of sexual violation by rape you are sentenced to preventive detention and ordered to serve a minimum term of imprisonment of eight years;

(b) On the charge of breaching a protection order you are sentenced to one month’s imprisonment;

(c) [Para 62(c) Redacted – see Gendall J’s minute dated 27 July 2018];

(d) On each of the four charges of male assaults female you are sentenced to six months’ imprisonment; and

(e) On the charge of kidnapping you are sentenced to two years’ imprisonment.

[63] Those sentences are all to be served concurrently.

[64] Please stand down.




...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch Public Defence Service, Christchurch

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 21111. SEE

http://wow.Iegislation.govt.riz/act/pu6lic/2011/0081/Iatestf0£Nf336I)350.html

IN TPE HIGH Cf3URT OF NEW ZEALAND CHRISTCHURUH REGISTRE

I TE KÖTI MATUA O AOTEAROA ÖTAUTAHI ROHE

TRI-2016-009-009047

THEQTJEEN

LLM JAMES HENRY

Heal4ng: 27 July 2018

Appearances: B Hawes and C C White for Crown

I Lucas for Defendant

Minute: 27 July 2018

MINUTE OF KENDALL

[1) Today, Friday 27 Jul / 2018, 1 sentenced the defendant Luke James Henry on charges of sex Tal violation by i-ape, breaching a protection order, male assaults female end kidnapping charges.

[2] In doing so at para [62](c) of my sentencing notes I also endeavoured to sentence Mr Henry on one charge of breaching release conditions and on this he was sentenced to one month’s imprisonment,



[3] I had understood earlier from counsel for Mr Henry that this charge of breaching release conditions had been transferred to the High Court for sentencing from the District Court.

[4) It now transpires that this was not the cage. I am told that the charge of breaching release conditions is still before the District Court and is awaiting trial.

[5] That said, my sentencing on this charge of breaching release conditions at para [62](c) of my sentencing notes was therefor in error. Those sentencing notes are now recelled and in their place I issue fresh sentencing notes which deletes and omits the 'previous para [62](c) which stated:

(e) On the charge of breaching release conditions you are sentenced to one month’s imprisonment,

[6] In all other respects Jny original sentencing notes which are now replaced by the reissued sentencing notes remain.

[7) I regret and apologise for the error which occurred.

Solicitors:

Raymond Donnelly & Co, Christchurch Public Defence Service, Christchurch