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R v Reekie CA339/03 [2004] NZCA 372 (3 August 2004)

Last Updated: 25 April 2018

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA339/03

THE QUEEN

v

NICHOLAS PAUL ALFRED REEKIE

Hearing: 28 July 2004

Coram: William Young J John Hansen J Doogue J

Appearances: R A Harrison for Appellant

A J F Perkins for Crown Judgment: 3 August 2004

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

[1] Nicholas Paul Alfred Reekie appeals against a minimum term of imprisonment of 25 years imposed upon him as part of a sentence of preventive detention in respect of serious sexual offending. An appeal against conviction was abandoned in February of this year.

R V REEKIE CA CA339/03 [3 August 2004]

[2] The minimum term of imprisonment was imposed by Harrison J in the Auckland High Court on 15 July 2003 following the trial of the appellant before the Judge and a jury in respect of offending against four complainants.

[3] The essence of the appeal is that a minimum term of 17 to 19 years would have been adequate to reflect both the gravity of the appellant’s offending and the minimum period of imprisonment required for the purposes of the community’s safety. It is submitted that the minimum term imposed is manifestly excessive.

Background and the Judge’s reasons for sentence

[4] The appellant, who was born on 16 December 1970, was sentenced on 31 offences. He was found guilty of burglary, unlawfully entering premises, assault, indecent assault, abduction, sexual violation by unlawful sexual connection, and sexual violation by rape. His crimes were committed against four female complainants ranging in age from 11 to 69 years. They spanned a ten year period.

[5] We now set out the substance of the Judge’s sentencing remarks as they reflect the factual background to the sentencing and the Judge’s reasons for it. The trial Judge was entitled to make his own assessment of the facts that led to conviction for the purposes of sentence and we do not understand his summary to be challenged.

Complainant “A”

[5] Complainant A was the first of your four victims. On 7 October 1992 she was asleep in her bedroom in the family home in Henderson. She was then aged 11 years. Just before midnight you entered her room through a ranch slider door. You punched her, threw her to the ground from her bed, threatened her with a knife, and then took her at knifepoint down to a place by the chicken coup. You tied her hands.

[6] Your first sexual offence was to put your hands all over her and then place your mouth on Complainant A’s chest, trailing it all the way down. You followed this by inserting your fingers into her vagina. Then you raped her for the first time. She attempted to push you away. You then sodomised her, Mr Reekie. You also penetrated her digitally. This was the conclusion of the first episode of your sexual violation.

[7] Later you tied Complainant A to a railing with her hands above her head. You held a knife against her throat. She told you on numerous
occasions that you were hurting her. She begged you to return her home. In what was to become one of your revolting trademarks, you placed a dirty sock into her mouth. When she said that she did not wish to return on another night, you kept slapping her. Then you embarked upon your second bout of sexual violation, again both genital and anal.

[8] Finally, after about five hours, you took Complainant A home. But not before you had held her, again at knifepoint, and told her you would return to kill her, Mr Reekie, if she ever disclosed what had happened. At some stage towards the end you kissed Complainant A and apologised for the way in which you had come to abduct her. Again, this conduct fitted into a later pattern. At one stage in this ordeal you advised Complainant A that your name was David – the first name of Complainant A’s neighbour, David Dougherty.

[9] Complainant A returned to her room. She stayed there until about
7.15 a.m. She was then able to tell her father what had happened. Dr Patrick Kelly, a highly respected paediatrician at Starship, examined Complainant A that day. He described to the jury the serious nature of the injuries you inflicted to her vaginal area.

[10] The Crown charged Mr Dougherty with your crimes. He was tried twice and convicted twice. He served over three years imprisonment. By 2002 advances in DNA profiling identified you to a standard close to mathematical certainty as Complainant A’s attacker. Those same advances positively excluded Mr Dougherty.

[11] At trial, Mr Reekie, you denied these offences. At one stage you told Mr Perkins you may have been in Christchurch. At another you said that you could not remember doing those things. The jury’s verdict, Mr Reekie, shows that you have a poor memory. I need only add to what must be obvious to anybody. You could hardly forget events of such sustained brutality.

...

[14] ... Mr Reekie, I cannot envisage a case which presents more aggravating factors. The facts largely speak for themselves. My words could never do justice to Complainant A’s suffering. When she went to bed that night in October 1992 she was, in her own words, communicated through her victim impact report, “a normal happy 11 year old who was attending school and competing regularly at gymnastics”. Again in her own words “this October I will be 22 years old and half of my life has been taken up with what happened to me when I was 11”.

[15] Complainant A’s victim impact report confirms what I observed of her demeanour at trial. She remains haunted by the five hours of your terror and the pain to which you subjected her. Her suffering has been compounded by the ordeals of having to give evidence at Mr Dougherty’s two trials, and the guilt associated with his convictions. While, of course, you are not directly responsible for those miscarriages of justice, you must have known that your silence was condemning your victim to constantly reliving the horror of your crimes and an innocent man to at least three years imprisonment. It is consistent with my assessment of your character,
confirmed from what I heard of you today, that you would stand by and let others suffer rather than accept responsibility for your conduct.

[16] Complainant A’s victim impact report contains her own graphic account of the pain you inflicted on her, and the humiliation she has suffered afterwards. She withdrew from friends; she suffers problems with her body image leading to bouts of anorexia and bulimia; she has suffered years of sleeping problems and feelings of despair and terror at sudden events; she has never been able to form a relationship with a male; and she has had to undergo regular counselling, and more frequently so since this trial. The scale of your brutality and depravity towards an 11 year old girl, carbon copied against adult women some 10 years later, only serves to confirm my assessment, Mr Reekie, that crimes of sexual violation are driven more by the need to control, dominate, and destroy the victim’s will than by sexual gratification. You have robbed Complainant A of the joys of a youth which promised so much, leaving her instead with a legacy of prolonged despair and desolation, both physical and emotional. You have robbed her of half her life. You have violated her to the very core.

[17] Today you told me that you never meant to hurt anybody. I could be excused for observing that those words ring hollow. There are no mitigating factors, Mr Reekie. You must pay for your crimes, and acknowledge what you have done to Complainant A, by serving the maximum term of imprisonment which I can impose of 14 years. In my judgment this sentence reflects appropriately the totality of your multiple offending. That will be the sentence I impose on each of the four charges of sexual violation by unlawful sexual connection and the two charges of sexual violation by rape. On the charge of abduction you are sentenced to seven years imprisonment. On each of the charges of burglary, indecent assault and threatening to kill you are sentenced to five years. On the charge of assault you are sentenced to two years. Those terms are to be served concurrently, and concurrently with any later sentence that I impose for your other crimes.

[18] It goes without saying, Mr Reekie, that your offending is sufficiently serious to require an order for a minimum term of imprisonment, to satisfy the requirements of punishment, deterrence and denunciation. I am satisfied that the transitional provisions of the Sentencing Act 2002 apply. ...

Complainant “B”

[20] In terms of this trial, Complainant B was your second victim. But it is directly material to whether or not I sentence you to a term of preventive detention and to the period of any minimum term of imprisonment that, in the interim, on 31 January 1993 you abducted the X sisters from their home in Henderson. They were then aged eight and six years respectively. I am satisfied that they were only saved from a fate similar to that suffered by Complainant A by the screams of one of them. In that way their father was alerted. In this Court you were sentenced to a term of 10 years imprisonment, but the Court of Appeal reduced that sentence to seven years. [R v Reekie, CA283/93, 15 November 1993] What is material for these purposes, Mr Reekie, is that you committed your crimes against Complainant B some 18 days after being released on parole from further terms of imprisonment imposed shortly after completing the X sentence.
[21] Today when you addressed me you said, and I quote you, “there are only two real periods of offending – in 1992 and 2001”. What you omitted to tell me and those in Court was that in the interim you had served a lengthy term of imprisonment for your crimes against the X sisters and other lesser terms for crimes of burglary and the like.

[22] Complainant B, as the jury heard, lived alone in a unit in a retirement complex. She was then aged 69 years. On re-entering her unit after gardening late on 28 December 2001 she saw a man. It was you. You pulled her face down into the bedroom. You tied her arms behind her back with shoelaces. You punched her around the head and elsewhere on the body before ripping a telephone cord from the wall and tying her up with that as well. As with Complainant A, you directed Complainant B not to look at your face. You then picked her up, carried her to a little spare room where, again as in the past, you stuffed a men’s handkerchief into her mouth, carried her out of the house and forced her into the back seat of your car. You then placed a continental blanket over her head.

[23] Later, but still in broad daylight, you led Complainant B to a reserve in Huia. You placed a blanket over her head; you led her across a creek into a secluded area. You made her lie in the mud and lowered her clothing. You then raped her, vaginally and anally. Afterwards, Mr Reekie, you drank some beer and took her back to the car, again covering her head with a blanket.

[24] You drove around for some time throughout that evening before stopping at your mother’s house in Kelston. You led Complainant B inside. Again, at your direction, her head was covered in a blanket. This time she was blindfolded with a red scarf. You took her to a small bedroom. Again, in a replica of your pattern with Complainant A, you resumed your sexual violation with a second episode. You made her undress and lie on the bed. You raped her again; she said in evidence “it went on and on”. You followed this, Mr Reekie, by sodomising her again. The final act of degradation was forcing her to perform oral sex upon you.

[25] You then directed Complainant B to have a shower, before making her a cup of tea and driving her home. At one stage in the evening’s journey you bought two pies, one for her and one for you. Eventually you dropped Complainant B off at home. She made breakfast and, in her own words to the jury, “just crawled into my bed and stayed there for two days”.

[26] Later that day, at the insistence of a friend, Complainant B consulted her doctor. However, for reasons which are perfectly understandable, she refused to allow him to carry out a vaginal examination. She did not intend to complain to the police. The humiliation was too overwhelming. However, one evening a few days later, Mr Reekie, you reappeared at the window. Strangely you asked whether she trusted you, or whether she hated you. This event triggered her complaint to the police.

[27] Before the jury, Mr Reekie, you did not deny the acts of sexual penetration. The weight of the DNA evidence left you with no choice. Similarly you admitted assaulting Complainant B and tying her up with a cord. Again the photographic evidence left you with no alternative. But despite this you insisted that the heart of the relationship was consensual. You had always, you said, “had a thing for older women”. You said that, to
your regret, you had allowed Complainant B to seduce you in her unit one evening previously. At that time, you said, she was unwilling to have full sexual intercourse there but was a willing participant in oral sex. According to you, the sojourns to the Huia reserve and to your mother’s house were at Complainant B’s instigation. The sheer fantasy of this story does not require my emphasis. I doubt that the jury’s rejection of it came as a surprise to many.

Complainant “C”

[28] Complainant C was your third victim. She was then aged 21 years. She was living at a lodge in Avondale while her parents went for a long awaited tramping holiday to the South Island. At about 2.30 p.m. on 9 February 2002 Complainant C was walking along New Windsor Road. Without warning, you stopped your car, grabbed her around the neck and pushed her into the back seat, punching her repeatedly. She resisted, but to no avail.

[29] You forced Complainant C to lie down under the back seat. Sometime later you stopped your car at a park and, in a now familiar pattern, bound her arms and legs with shoelaces. With the use of a knife you threatened Complainant C that you would cut off her fingers and toes and do terrible things to her eyes; you actually cut her leg three times with the knife. At about 6 p.m. you drove to the site of the old Telecom tower on Old North Road, near Helensville. Again, in a now familiar pattern, you placed a blanket over Complainant C’s head. You led her into a secluded area of bush. You laid her on a blanket and, after removing her bindings, you forced her to masturbate herself. You then directed her to lie down and open her legs before performing oral sex for about 20 minutes. You introduced a break by drinking a few beers and smoking a cannabis joint. You then forced her to perform oral sex upon you, an event she described as “absolutely disgusting”. Then you proceeded to sexually violate her by rape, directing her to chew on your sock to relieve the pain. The final act of this episode was your unsuccessful attempt at anal sex.

[30] You then drove her for hours around the western suburbs. At one stage you visited your sister’s address. Towards dawn you visited a service station. There, again, you purchased two pies. You followed this by driving to an area in Brighams Creek Road, Whenuapai. There essentially you repeated the crimes which you had committed the previous evening. You raped Complainant C in circumstances which she described as being very painful and proceeding “for about an hour”. Again you tried without success to sodomise her. She was only able to make her escape when you fell asleep. She raised the alarm and her rescuers attempted to detain you. You made a frenzied exit, and eluded them.

[31] Dr Patricia Say examined Complainant C. She described her as being in an exhausted, dishevelled and tearful condition, and in pain from her bruising and cuts around her body. Dr Say described Complainant C’s genital injuries as consistent with blunt force trauma which would have caused her a significant degree of pain.

[32] Again the DNA, the photographs, the direct eye witness evidence and the medical opinion left you with no alternative but to admit your identity as the man who had abducted Complainant C from a public street in
broad daylight. However, as with Complainant B, you attempted to portray to the jury what followed as the natural evolution into a warm and consensual sexual relationship, which quickly reached a stage of such intimacy that Complainant C said she wanted to have your child. Again, it came as no surprise that the jury rejected your defence. Also, Mr Reekie, I was struck by the satisfaction, even pleasure, you appeared to derive from recounting the relevant details in evidence.

Complainant “D”

[33] Complainant D was your final victim. She was a Korean student, then studying English in Auckland. At about 8 p.m. on 11 February 2002 she was walking along Mt Eden Road. This was just a day after Complainant C had escaped from you. She was alone, holding an umbrella. On the way she saw a male leaning against a wall. He was standing against a car parked across a driveway. You were that man.

[34] Then, without warning, after Complainant D had taken a few steps, you grabbed her from behind by both shoulders. You pulled her over a chain fence into a grassy area. You punched her on the face, chest and elsewhere. On your own admission, the number of blows was ‘countless’. Complainant D, like the X sisters, was saved by her screams. They alerted others and you ran away into a bush area.

[35] Again you gave a different version to the jury. You admitted the encounter but explained it all away as accidental, concluding with a statement that you and Complainant D fell into a tangled mess. You did, of course, acknowledge striking her in the face and abdomen, as you had to, to stop her from screaming. Again it was unsurprising that the jury rejected your account.

Finite Term

[36] I intend to approach your sentence by comparing the term that would be available on a fixed term for your offences against Complainant B and Complainant C with the option of preventive detention. On a fixed term basis each of the charges of sexual violation by rape or unlawful sexual connection would merit a starting point of eight years as a consequence to the change in the maximum term of imprisonment available for rape enacted in the mid 1990s. A starting point for the other crimes would be somewhat less. Added to that would be the obviously aggravating features of premeditation, violence and the harm inflicted on your victims. I have read their reports. As with Complainant A, I have had the inestimable advantage of observing each victim in the witness box.

[37] Complainant B was a fit and healthy elderly woman. She was obviously somebody who was doing her very best to maintain her independence, both physical and emotional, well into her later life. Like others, in her report she talks about her determination to survive the ordeal, about the physical pain, and the enduring emotional consequences. But she can no longer power walk or garden. She has not regained her health. She has lost friendships. She talks about her determination to fight and regain her equilibrium. In her words, Mr Reekie, she says:
You took away my mind, emotions and every part of my being. But what you did not take away was my will to live and my inner strength to recover from this ongoing nightmare at the time, frozen with fear and petrified whether you would kill me or not. What kind of power is it when you attack defenceless people who cannot defend themselves? Were you blind or did you just see me as an object, not a human being? How can one human being do this to another, or do you not have a conscience?

[38] Apart from her physical injuries, Complainant C has also suffered long term trauma. She vomited after you violated her on the first occasion in the bush at Helensville. In each of the two episodes you inflicted prolonged and sustained pain upon her. The injuries to her genital region were so bad that two days afterwards she was taken for medical assistance because of heavy bleeding. She was confined to bed for at least a fortnight. She was unable or unwilling to leave her house for about a month. She became isolated from her parents, even though she depended ultimately on their support, love and care. She cannot envisage a sexual relationship with another male in the near future. She feels shame, depression and humiliation. Her parents, who are here in Court today, have also suffered. The tentacles of your crimes, Mr Reekie, spread far and wide.

[39] I agree with Mr Perkins. Both Complainant C and Complainant B, like Complainant A, are in their own ways extremely impressive people. All were determined to survive their ordeals. All of them have borne their suffering with dignity and pride, but each has been gravely and permanently harmed.

[40] Complainant D was so terrified by your attack that she thought she was going to die. She suffered bruising which lasted for up to a month. She also suffered other trauma which has followed her back to Korea, including sleeplessness. Her life in her home country was disrupted by having to return to give evidence here at trial. She lost her employment and has been unable to find a replacement.

Preventive detention

[44] The nature of your offending against both Complainant B and Complainant C; its gravity and time span – at least 15 hours in each case within a six week period; the category of your victims – both by my assessment vulnerable women; and the effects of your offending on them all combine to point overwhelmingly towards preventive detention (R v Leitch [1998] 1 NZLR 420, 428-429). ...

[45] In my judgment, Mr Reekie, the prospects for your rehabilitation are virtually non-existent. You show absolutely no signs of accepting responsibility for your crimes. Nor do you show any remorse for your victims. Today you asked me in a roundabout way to extend mercy towards you. You asked for some understanding of your circumstances. However, you showed none of these emotional responses to any of your victims, even though they pleaded for it.

[46] Tellingly, in an interview with Detective Sergeant Goldie after your arrest for the Complainant C charges, you described your offending as a
means of expressing your general anger and hatred. All your reactions to your convictions are internalised self pity, as they have been in your address to me today. You choose to show no insight into the causes of your offending. You attempt to minimise the impact of your crimes by blaming your victims, particularly Complainant B and Complainant C. And you attempt to pass off their reactions to these horrific crimes as those of jilted or misunderstanding lovers – when nothing, Mr Reekie, could be further from the truth. Only you, I regret to say, are deluded. And today you have even attempted to lay blame for your crimes on the prison authorities for releasing you into the community, despite I note the pleading terms of your requests for parole.

Minimum term

[51] However, that is not the end of it, Mr Reekie. I am bound by law to sentence you to a minimum term of five years imprisonment or more. It must be the longer, as Mr Perkins pointed out, of either, first, the minimum period of imprisonment required to reflect the gravity of your offending (s 89(2)(a)) or, second, the minimum period of imprisonment required for the purposes of the community’s safety, measured in the light of your age and the risk you pose at this time (s 89(2)(b)). I shall consider each requirement separately.

[52] On the first or gravity requirement, I am conscious that I can only take into account your offending against Complainant B and Complainant C. I do not intend to repeat what I have already said. In my assessment your offending is at the worst end of the scale of sexual violation. There are no mitigating factors (compare R v C [2003] 1 NZLR 30 at para 28). In my judgment the minimum period of imprisonment necessary to reflect the gravity of your offending fixed to a level sufficient to punish, denounce and deter would be 20 years.

[53] I am also bound to consider the second or community safety requirement. The relevant considerations shift from punishment to public protection. I appreciate the general difficulties in forecasting risk arising from events only capable of taking place well into the future, that the Parole Board normally has the responsibility for assessing that risk, and the desirability of leaving your release date to its judgment (R v C (para 28)). But this case is unique. In my assessment, based upon my prolonged observation of you at trial, the nature of your offending, your criminal history, and the medical reports, you are most unlikely ever to be considered for release back into the community.

[54] I agree with Mr Perkins; you are in a special risk category. In my judgment you are at least as dangerous as the worst of the two serial offenders Mr Perkins referred to (Thompson and Rewa). The reasons are obvious. While the other two recent serial offenders may have committed many more crimes, the effects upon your victims is as great, if not greater, due to your pattern of abduction, violence and short term captivity as well as sexual degradation. You show a distinct proclivity towards entering private property for that purpose and, in particular, for removing those who are most vulnerable – the young and the elderly – for your predatory purposes. You do not offend simply for sexual gratification; you offend for a far more sinister reason. You offend, as I said before, to control, dominate, humiliate and harm. Your history discloses a distinct pattern of offending within a
short time of release. For example, apart from the Complainant B crimes, you offended against Complainant A and the X sisters shortly after conclusion of sentences. I agree with Mr Perkins that you present as a particularly dangerous risk to society. In my judgment that risk is too great to allow for your eligibility for release in 20 years time.

[55] Taking into account your age and the other relevant factors, I am satisfied that the only period appropriate for public protection is 25 years. By then you will be 57 years of age. Your victims are entitled to the comfort of knowing that you will never be considered for parole until then. In this respect I have given weight to your previous offending against Complainant A and the X sisters. Accordingly, Mr Reekie, I sentence you to a minimum term of imprisonment of 25 years as part of your term of overall sentence of preventive detention. Please stand down.

[6] To put the appeal against the minimum term of imprisonment of 25 years into perspective, it should be noted that that term relates to the sentence of preventive detention imposed in respect of the offending against the second and third complainants. In respect of the first complainant, that sentence was not available. The appellant was sentenced to an effective sentence of 14 years imprisonment in respect of his crimes in relation to the first complainant with a minimum term of imprisonment of 9½ years. Equally, in respect of the fourth complainant, where the lesser offences of attempted abduction and assaulting a female were involved, the appellant was sentenced to an effective sentence of five years imprisonment and no minimum term of imprisonment was involved.

The law

[7] In imposing the minimum term of imprisonment of 25 years, Harrison J applied the following provisions of s89 of the Sentencing Act 2002:

89 Imposition of minimum period of imprisonment

(1) If a court sentences an offender to preventive detention, it must also order that the offender serve a minimum period of imprisonment, which in no case may be less than 5 years.

(2) The minimum period of imprisonment imposed under this section must be the longer of—

(a) the minimum period of imprisonment required to reflect the gravity of the offence; or

(b) the minimum period of imprisonment required for the purposes of the safety of the community in the light of the offender's
age and the risk posed by the offender to that safety at the time of sentencing.

(3) ...

[8] The section has already been the subject matter of judicial comment by this Court in the cases of R v C (CA249/02) [2003] 1 NZLR 30 and R v Johnson CA221/03, 23 October 2003.

[9] In R v C, Tipping J in delivering the decision of the Court, said this:

[10] The gravity criterion referred to in paragraph (a) of s89(2) is directed to those matters which bear on the appropriate minimum period, from the point of view of punishment, denunciation and deterrence after bearing in mind all matters relevant to that inquiry. ... By contrast paragraph (b) of s89(2) is directed to the appropriate minimum period necessary for the purpose of the safety of the community, ie. public protection.

[11] Section 89(2) therefore involves the Court in a two step inquiry. First, the Court must assess what minimum period properly reflects the gravity of the offending on the basis just mentioned. Second, the Court must consider whether that period is adequate for public protection purposes. It must be remembered that at this point a decision has already been made to sentence the offender to preventive detention. It has therefore already been established that the offender qualifies for such a sentence and it is appropriate to impose it because of the significant and ongoing risk the offender poses to the safety of the community. What is at issue at the stage now under discussion is whether the minimum period necessary to punish, denounce and deter, after bearing in mind all matters relevant to that inquiry, is enough for the purposes of public protection. If it is not enough, the period fixed at the first step must be increased to the level which is considered necessary for the purpose of public protection.

...

[27] The second step requires us to consider whether any longer period is required for the purposes of the safety of the community. In that respect the statute requires us to consider the appellant's age (mid-forties) and the risk he poses to the safety of the community. We must make that assessment as at the time of sentencing. Our consideration of these matters leads us to the view that the minimum period of 6½ years fixed at step one does not require any increase for the purposes of the safety of the community. The pleas of guilty are relevant again in this respect, as are the steps the appellant has already taken at Kia Marama, upon which it must be hoped he can build. Putting the matter bluntly, the appellant will be behind bars for not less than 6½ years. We consider that is enough as a minimum for public protection, particularly in the light of the fact that he will not be released after serving 6½ years, unless and until the Parole Board is satisfied he will not pose an undue risk to the safety of the community or any person or class of persons: see s28(2) of the Parole Act 2002.
[28] The way s89(2) is constructed must be reconciled with the fact that it is the Parole Board which has the continuing responsibility to assess the risk offenders pose to the safety of the community. The court's assessment at the time of sentencing under paragraph (b) is designed, if necessary, to increase the paragraph (a) assessment if, in the Judge's view, the Parole Board should not be able to consider an offender for release on parole for a longer period than that reached under paragraph (a). Parliament, in addressing the matter in this way, may have had in mind the interests of victims in having a maximum certain period during which parole cannot be considered. Against that must be balanced the difficulties of forecasting risk in relation to events capable of taking place only well into the future. Also to be borne in mind is the general desirability of leaving matters to the judgment of the Parole Board, after the minimum period of imprisonment required to reflect the gravity of the offence under paragraph (a) has been served. That said, sentencing courts must not overlook the fact that Parliament has given them the responsibility of fixing the longer of the paragraph (a) and paragraph (b) periods, if they differ. Thus in a case where the Judge comes to the view that risk clearly outstrips gravity, it is the risk assessment which must prevail.

[10] In R v Johnson the Court said this:

[30] But it may be helpful to consider that for the purposes of the imposition of a minimum term of imprisonment offences could be evaluated in three ways. ... Third, those offences where the risk warrants preventive detention and either because of the degree of risk or the gravity of the offence, a ten year minimum term would be inadequate. It is particularly in relation to this category that difficulties of principled assessment of gravity arise.

[31] When contemplating, in a case requiring preventive detention, whether a minimum term exceeding five years is required, a method which is not entirely subjective or arbitrary might be to consider what finite term may have been appropriate after taking into account all relevant aggravating and mitigating factors and then, having regard to the gravity of the offence, what the period of the minimum term might properly be in relation to the possible finite term.

[32] We deliberately refrain from indicating a too prescriptive approach for at least two reasons. First, sentencing is a matter of judgment and experience. Second, there have been and will be cases of such gravity as to render inapt any assessment by analogy to a notional finite sentence. Such cases will compel evaluation mainly by reference to their own extreme features. The crucial point to bear in mind, however, is that the sentence of preventive detention does not, of itself, require a minimum term of imprisonment exceeding five years. Whether and to what extent that five year minimum should be exceeded depends on the matters referred to in sub- paragraphs (a) and (b) of s89(2), with the gravity issue raised in sub- paragraph (a) being informed by, but not dictated by, the finite term analogy discussed in para [31] above.
[11] In sentencing the appellant Harrison J was aware of the decision in R v C and applied it and there was no suggestion that he erred in principle in his approach to s89. The decision in R v Johnson was subsequent to his sentencing.

Submissions for appellant

[12] Although not expressed precisely in this way, the submissions for the appellant were advanced under three separate heads. First, it was submitted that the minimum term imposed was manifestly excessive when viewed in the context of other cases, both of the same kind and of a different kind, for example, murder. Secondly, it was submitted that when the two specialist medical reports before the Court did not discount entirely the possibility of rehabilitation on future intervention that the public’s safety could not require a term as long as that imposed. Thirdly, it was submitted that the appellant would be aged between 49 and 51, if a minimum non-parole period of 17 to 19 years imprisonment had been imposed. By that time the Parole Board would have all the material necessary to determine whether the appellant was a risk for public safety. It could be said that the second and third submissions reflect an underlying submission that the Parole Board is constituted to protect public safety. It is thus unnecessary for the sentencing Judge, in the absence of clear evidence, to impose a lengthier non-parole period than that required to reflect the gravity of the offence.

[13] In respect of the first of the heads of submission identified by us, the appellant invites us to compare his case with the case of R v Johnson where a 11 year minimum period was imposed by this Court and R v Thompson [1996] 2 NZLR 429 where, under the Criminal Justice Act 1985, a 25 year period of minimum imprisonment was upheld by this Court. Although it is accepted that the present case is more serious than Johnson, it is submitted that it is unquestionably less serious than Thompson. It is noted that when this Court upheld the term of 25 years in Thompson it was influenced by the fact that the Parole Board had power to visit the case despite the minimum term, a power that does not exist under the present legislation. It is accordingly submitted that a term of 17 to 19 years imprisonment would adequately reflect the gravity of the offending. In respect of the same type of

offending it is further submitted that the case is simply not as serious as R v Rewa (unreported, T322/96 Auckland Registry, 3 July 1998, Anderson J) where a minimum term of imprisonment of 22 years was imposed.

[14] The appellant goes on to note that in respect of murder convictions, minimum non-parole periods of 25 years, 30 years and 17 years have been upheld by this Court in the cases of R v Howse CA444/02, 7 August 2003, R v Bell CA80/03, 7 August 2003 and R v Watson CA384/99, 8 May 2000. It is submitted that while it is accepted such cases deal with a different form of criminality, the offending of the appellant cannot have reached the same gravity and seriousness as the murders involved in those cases.

[15] In respect of the reports from the two medical specialists before the Court as to the likelihood of the appellant being a risk to the community, the appellant submits that neither report discounts entirely the possibility of rehabilitation and both leave it open. It is submitted that this factor speaks against any term in excess of that required to mark the gravity of the offending being imposed. It is noted that when the appellant was in the community between 1998 and March 2000, he did not offend in a sexual manner. It is further noted that one of the reports acknowledges that the appellant has not had the opportunity for therapeutic programmes in relation to sexual and violent offending, as he had not had prior convictions for such behaviour. That report further notes that the appellant is clearly of average to above average intelligence and is able to think about and discuss issues in relation to himself and may be willing to engage in consideration of these problems. While the report further notes that his personality disorder may impair his ability to engage in successful therapeutic work, the submission is made that there has never been an opportunity for that to be evaluated.

[16] In an affidavit put before the Court by the appellant there is reference to him successfully completing a Straight Thinking programme in cognitive skills development since he was sentenced. The same affidavit expresses remorse for his victims, the first acceptance by the appellant that he offended. The affidavit expresses a desire to come to terms with his problems.
[17] In respect of the third primary submission for the appellant it is submitted that a minimum non-parole period which would see the appellant not being eligible for parole until he is 57 years of age must militate against his rehabilitation. It is submitted that the lesser period urged upon us of 17 to 19 years must adequately reflect the appellant’s risk to the public safety and enable him to have an opportunity to rehabilitate himself. It is submitted that the lengthier sentence imposed is crushing and that the appellant should have some hope and incentive to undertake any treatment available to him.

[18] It is accepted for the appellant that little can be said by way of mitigation. It is submitted that the cases indicate a range of between 11 and 25 years for the nature of the offending and the risk to public safety, and that accordingly a minimum non-parole period of between 17 and 19 years would be appropriate. It is submitted that it cannot be said the risk to the community clearly outstrips the period necessary to reflect the seriousness of the offence.

Submissions for respondent

[19] The respondent submits: First, it was within the sentencing Judge’s discretion to consider that the minimum period of imprisonment appropriate to reflect the gravity of the appellant’s offending was 20 years; secondly, it was open to the sentencing Judge to increase that period to 25 years to reflect the appellant’s risk to the safety of the community in the light of his age and the material before the Court.

[20] In support of the respondent’s submissions the horrific nature of the appellant’s offending was emphasised to us. In addition, it was submitted that it was reasonably clear that all offending was premeditated. While the offending spanned ten years it is clear that the appellant was only in the community for short periods of time before he re-offended. The offending against the first complainant was when the appellant was on parole. He had been released on 21 September 1992 and the offending was committed on 7 October 1992. It was just a few months after that that he abducted the two young children, which in part led to the sentence reduced by this Court on appeal. As already noted, his offending against the second complainant

was just 18 days after he was released from prison on parole. The offending against the third complainant was some six weeks later. The offending against the fourth complainant was the day after sustained and prolonged offending against the third complainant. It is further noted that the offending is against females of any age.

[21] It is submitted that the appellant’s present expressions of remorse must be self-serving and not genuine. That is because they are inconsistent with all other material before the Court. The accurate position, it is said, remains that expressed by the doctors in their reports that there was no awareness of the harm to the victims. It is further submitted that the sentencing Judge was well placed to assess the absence of remorse on the part of the appellant.

[22] The respondent stresses to us a number of relevant aggravating factors relating to the offending, namely:

(a) The number of complainants.

(b) The offending in respect of the first and second complainants involved unlawful entry into their homes.

(c) The offending against all four complainants was committed while the appellant was on parole.

(d) The considerable harm caused to the victims.

(e) An element of cruelty in at least some of the offending combined with a desire to humiliate. The depraved nature of the offending was made worse by the appellant’s warped and bizarre belief of an intimate relationship with his victims.

(f) The particular vulnerability of the victims especially the first and second complainants.

(g) The premeditation present on the part of the appellant.

(h) The extraordinary brief period of time between the attack on the third complainant and that on the fourth complainant put the appellant into a different category from the usual serial offender.

(i) In relation to prior convictions the abduction of the two young girls is of significance. Other convictions of potential significance include:

Possession of a knife (two charges in 1987) Burglary with a weapon (1987)
Assault on police (1988)
Being armed with intent to break and enter (1988)
Aggravated burglary with a firearm (1988) Common assault (1990)
Breaking and entering with a weapon (1993) Aggravated assault (2000)

(j) The prolonged duration of the offending, 5, 15 and 17 hours of captivity respectively for the first three complainants.

[23] It is submitted that the Judge’s assessment of the gravity of the offending was thoroughly justified and consistent with earlier cases in this area. The acceptance by the appellant that an appropriate minimum term would have been of the order of 17 to 19 years reflects the reasonableness of the Judge’s approach. On any basis the case is a far more serious one than R v Johnson. It is noted that the sentencing Judge did not determine that the present case should attract the same minimum term as R v Thompson on the basis of gravity but rather on the basis of community safety.

[24] It is thus submitted that having regard to the horrific nature of the offending and the aggravating features relating to it that Harrison J was well entitled to impose a minimum term of 20 years imprisonment in respect of the gravity of the offending.


[25] It is submitted for the respondent that the real issue on the appeal is whether the Judge was entitled to impose a greater term because of his assessment of the appellant’s risk to public safety. It is submitted that the Judge’s assessment was correct in that the appellant’s prospects for rehabilitation were “virtually non-existent”.

[26] The respondent submits that the Court can be assisted by taking into account the factors relevant to the imposing of a sentence of preventive detention. The respondent refers to s87(4) of the Sentencing Act 2002 which provides:

(4) When considering whether to impose a sentence of preventive detention, the court must take into account—

(a) any pattern of serious offending disclosed by the offender's history; and

(b) the seriousness of the harm to the community caused by the offending; and
(c) information indicating a tendency to commit serious offences in future; and

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

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

[27] The appellant submits that the first four of the factors just referred to provide a useful framework by which a sentencing Judge may assess the risk posed by an offender to community safety at the time of sentencing and in the future.

[28] The pattern of serious offending and the serious harm caused to the community have already been traversed. It is submitted that the indication of the tendency to commit serious offences in the future is underlined by the offending spanning some ten years, with the offending generally occurring shortly after release from prison. It is accordingly submitted it is logical to infer that the appellant is predisposed towards violating females without their age being a determining factor. The respondent refers to comments by the specialist medical witnesses as indicating that the offending is much more likely to be about controlling, humiliating and harming women. It is submitted that it is understandable that those specialists are not prepared to predict the risk the appellant is likely to pose at some point in the future. There is, however, sufficient within the reports to conclude that it is likely the appellant will commit another qualifying sexual or violent offence, if released at some time in the medium term future. It is also noted that one of the specialists comments that he is unaware of any current treatment programmes in the prison system that are likely to impact on the appellant’s pattern of behaviour. It is submitted that the appellant would have to accept a substantial measure of responsibility for his offending before any improvement could occur and that, on the basis of the information before the sentencing Judge, it had to be doubtful if that would ever occur.

[29] It is submitted that there has been a failure by the appellant to address the cause of any of his offending and that it seems unlikely that he can do so.
[30] It is accordingly submitted that Harrison J was justified in coming to the view that the appellant was in the “special risk category” and that the risk was too great to allow for the appellant’s eligibility for release after 20 years. It is submitted that the Judge was entitled to take the view that the appellant was at least as dangerous as the two serial offenders Thompson and Rewa. In taking that view he was assessing the risk to the community rather than comparing the extent of the offending actually committed. It is submitted that the Judge was obliged to consider the appellant’s risk to the community rather than the consequences of the sentence for the appellant. It is accordingly submitted that the 25 year minimum term imposed was within the Judge’s discretion and is neither manifestly excessive nor wrong in principle.

Discussion

[31] It seems to us clear that the minimum term of imprisonment of 20 years taken by the sentencing Judge to reflect the gravity of the offending was within his sentencing discretion. Even if at the upper limit of the range open to him, it could not be said to be manifestly excessive. The offending was so grave and the aggravating features relating to it so substantial that there had to be a long term of minimum sentence. A range of 16 to 20 years had to be open to the sentencing Judge. He was well placed to assess where the case fell within such a range as he had the opportunity of hearing and observing both the appellant and the complainants.

[32] To compare the appellant’s offending with other horrendous cases is not particularly helpful in this area. Each case inevitably has distinguishing features. The appellant’s offending has nothing in common with any of the murder cases referred to us, none of which involve multiple offending of the same kind as has occurred here. Nor do the sexual offending cases referred to on behalf of the appellant assist him. The sentencing Judge accepted that the appellant’s offending was not at the same level of gravity as that arising in relation to the most serious serial offenders Thompson and Rewa, even although it has disturbing features such as the periods of detention not found in those cases. On any basis therefore we

accept that the 20 year minimum term taken by the sentencing Judge in respect of the gravity of the offending was open to him.

[33] The more difficult question on this appeal is whether the Judge was entitled, given the length of that period, to consider that an additional five year period was necessary to reflect the risk that the appellant will pose to the community so many years in the future.

[34] We are mindful of what this Court said in R v C at [28]. Unless the sentencing Judge is satisfied the risk to the community clearly outstrips the period of imprisonment fixed to reflect the gravity of the offending at the time of sentencing there should be no top-up of that period. The offender will not be released unless and until the Parole Board is satisfied the offender is not an undue risk to the safety of the community.

[35] It would seem reasonably clear that the longer the minimum period of imprisonment imposed to reflect the gravity of the offending under s89(2)(a) the less likely the Judge will be able to be satisfied a further period is necessary under s89(2)(b) to protect the community from risk. There was no evidence in the present case that would enable us to say that 20 years was clearly inadequate to protect the public and that a further five years was required. Understandably evidence as to the risk the appellant might be to the community in 20 or 25 years time does not at present exist. We do not know whether or not the appellant’s personality will change over those years. We do not know whether treatment regimes will or will not come into existence over those years that might assist the appellant and provide protection for the community. The most that can be said is that at the time of sentencing the appellant represents a danger to the community for a period of time that cannot be accurately assessed. The period is not clearly one exceeding the 20 year term justifiably taken by the Judge to represent the gravity of the appellant’s horrendous offending.

[36] We are thus compelled to the view that it was not open to the Judge to decide that at the date of sentencing the appellant’s risk to the community clearly required a

longer minimum term of imprisonment than the 20 year period fixed to mark the gravity of the offending.

[37] We hope it is crystal clear that this conclusion does not mean the appellant will be released into the community in 20 years time regardless. He will not be released into the community at all unless and until the Parole Board is satisfied on appropriate evidence that he will not pose an undue risk to the safety of the community or any person or class of persons: see s28(2) of the Parole Act 2002.

Result

[38] The appeal is allowed and the minimum term of imprisonment imposed on the appellant is reduced to 20 years in respect of each sentence of preventive detention imposed upon him.

Solicitors:

Crown Solicitor, Auckland