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High Court of New Zealand Decisions |
PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF
COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985.
IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
CRI 2006-019-001786
THE QUEEN
v
FABIAN WHATI MOORE
Appearances: P Crayton for the Crown
P F Gorringe for the prisoner
Judgment:
9 May 2006
SENTENCING REMARKS OF ELLEN FRANCE J
[1] Fabian Whati Moore, you appear for sentencing today
having pleaded guilty
to indecent assault of a child under the age of 12 years (s 132(3) Crimes Act 1961).
The District Court declined
jurisdiction.
Facts
[2] The offending took place following a party at the complainant's mother's
ho me.
[3] At about
four in the morning on 27 November 2005 you were in the street of
the complainant's home. You entered the property and began a conversation
with
R V MOORE HC HAM CRI 2006-019-001786 9 May 2006
the complainant's mother. She left you sitting on the front lawn with a friend
of hers
and went inside to go to bed. It was anticipated that the friend was going to stay the
rest of the night so the front door
was left closed but unlocked so that he could get
back inside the house. At about seven in the morning you were left alone at the
address after the friend decided to go home.
[4] The summary of facts records that you opened the front door, went into the
lounge and from there walked into the hallway before opening the bedroom door of
the 12 year old daughter of the occupant. You left
that bedroom and went to another
occupied by the complainant who was 4 years old at the time. Sitting on the bed,
you woke the complainant
telling her "don't say anything or someone will get hurt".
After pulling down the bedding you placed your hand on her pubic area
and moved
your hand in a rubbing motion. The complainant screamed and woke other family
members.
[5] You were seen leaving the
address. You returned and spoke with the
complainant's mother at the front door repeatedly saying you were "sorry", you may
have "sat on the girl's head" and were "looking for a place to crash".
Personal circumstances
[6] You are 32 years old. The
pre-sentence report records a troubled and violent
family life involving both physical and sexual abuse. You were in an on-again
off-
again de facto relationship with the mother of your two children for some 12 years
fro m the time you were 15. That relationship
ended in 2000 when you attacked your
former partner and this gave rise to convictions for sexual violation and assault.
[7]
You have no real employment history and have struggled with both alcohol
and drug abuse. The pre-sentence report writer also records
you have suffered from
depressio n.
[8] This present offending was committed some three months after your release
on parole
on 31 August 2005 . On your release on parole you initially lived at a
support house which provided for a drug and alcohol free environment
for the
residents. It seems that you did keep to the rules of the house for the most part but
not on the day prior to committing
the current offence when you both drank and
consumed cannabis.
[9] The pre-sentence report goes through the earlier programmes
which you have
attended and that is something which I will come back to. The report writer says that
your willingness to undertake
interventions to address the key factors of your
offending needs to be looked at in the broader overall context. By that the report
writer means your earlier opportunities which have not succeeded in addressing your
offending.
[10] The report writer does
consider that your willingness to take part in a sex
offenders' treatment programme, which you have not said you will do before,
"provides some scope for rehabilitation". The report writer's conclusion is as
fo llo ws:
[You] took responsibility for [your] offending ..
[you] pose a significant risk in the community given that this offence was
committed within three months of release
on Parole. ..
[you have] indicated a willingness to undertake any psychiatric or
psychologica l and substance
abuse assessment and treatment as required,
and [are] also open to participating in a sex offenders' treatment programme
via Kia Marama or Te Piriti once sentenced. It seems imperative that [you]
undertake further specialist assessments
to determine the most appropriate
treatment options, as prior provision of an extensive range of interventions
has not proven successful in breaking [your] cycle of offending behaviour.
Victim impact report
[11] The Victim Impact Report
makes it clear that your offending has had harsh
effects on the complainant and has also, not surprisingly, affected other family
members. As the submissions for the Crown observe, your offending is the sort of
offending that takes away from young children the
innocence and trust that they
should be able to have.
Previous history
[12] Your first convictions were in 1996 and involve
four convictions of indecent
assault on girls under 12 over a period from 1990 to 1995. The summary of facts is
not very clear but
it appears that three complainants were involved who were of
similar ages to the current complainant (four, five and six). The offending
is similar
to the present offending involving entry into the girls' bedroom, putting your hands
under the blankets and fondling the
girls. Some digital penetration was involved.
On these convictions you were sentenced to two years imprisonment.
[13] In 1997
you were convicted of wounding. This was an unprovoked attack in
the course of which you used your knife on the complainant, a 20
year old man. On
this charge you were sentenced to a term of imprisonment of one year three months.
[14] There was then in 1998
conviction for possession of a knife in a public place
which resulted in a sentence of supervision. In 1999 you were convicted of
one
charge of male assaults female and again given a sentence of supervision. This
convict ion related to your former partner who
was also the subject of the incident
result ing in your March 2000 conviction for male assaults female.
[15] Then in 2001 there
were six convictions, one of rape, four of unlawful sexual
connection and one assault to which you pleaded guilty and were sentenced
to a term
of seven years imprisonment. There was one complainant, your former partner. The
offences related to one incident and the
summary of facts makes it clear this was
serious offending. A sentence, described as cumulative, of 10 months imprisonment
was imposed
at that point for one of the earlier offences of male assaults female.
Reports from health assessors
[16] I have to say something
now Mr Moore about the reports obtained under s 88
of the Sentencing Act. Those are ones the Court ordered from two appropriate
healt
h assessors about the likelihood of your committing a further qualifying sexual
or violent offence and that is for the purpose of
deciding whether or not I should
impose a sentence of preventive detention. Two reports have been obtained.
[17] The first report
is dated 30 March 2006 and is from Dr Marjorie TaVoularis
who is a consultant psychiatrist with the Regional Forensic Psychiatric
Service at
Health Waikato. She discusses your social and medical history, noting you were in a
motor vehicle accident. She also discusses
the present offence and the previous
offences. She records you have had no formal psychiatric treatment but have been
prescribed
medication by the prison doctor in 2001 because of depression.
Dr TaVoularis also discusses the other programmes which you have attended.
She
says you are remorseful. She says you told her that for ten years you have been
battling your attraction for female children, you thought you had overcome that
because the urge dissipates but it then recurs when you are using alcohol and
cannabis.
[18] This report writer concluded:
I do not believe [you suffer] from a psychotic illness and [your] depressive
symptoms appear to be primarily a response
to [your] remorse. My
diagnostic impressions under AXIS I include adjustment disorder with
mixed mood disturbance,
alcohol and cannabis abuse and institutional
remission and paedophilia.
[19] The psychiatrist's recommendation is that
you participate in one of the sexual
offenders' courses run by the Department of Corrections. Dr TaVoularis is of the
view that if
released currently you are likely to re-offend and "this is just a matter of
time." From that I infer offending of a sexual nature.
You are also seen as needing
help to maximise the likelihood you can remain drug free after your release. Your
cannabis abuse is
seen as making you more likely to offend.
[20] The second report dated 21 April 2006 is from Dr Raksha Lutchman a
consultant
clinical psychologist with the Regional Forensic Psychiatric Service at
Health Waikato. Dr Lutchman discusses your upbringing and
what you have done
since leaving school. Dr Lutchman also discusses your earlier relationships and your
mental status as well as
your previous offences. Your current offence is seen as
indicat ing an intensified attraction towards vulnerable young victims.
[21] Dr Lutchman assesses, on the basis of various tests, that you have moderate
to high potential of future sexual offending.
The recommendation is that if you
receive a prison term it would be beneficial for you to receive treatment for your
sexual offending
behaviours and drug and alcohol abuse issues, as well as
counselling for your sexual abuse issues and anger/impulsive behaviours.
It is also
recommended that towards the end of your sentence you be detained at a specialised
sexual offenders' unit where you would
be able to attend a sexual offenders'
programme.
Legal principles
[22] I turn now to consider the relevant legal matters.
[23] Section 87(1) of the Sentencing Act provides that the purpose of preventive
detention is to protect the community from those
who pose a significant and ongoing
risk to the safety of its members.
[24] The first two requirements of s 87, as Mr Gorringe
accepts, are met.
[25] The third requirement in terms of s 87(2) is that the Court must be satisfied
that you are likely to commit
another qualifying sexual or violent offence if released
at the sentence expiry date of any sentence other than preventive detention
that the
Court is able to impose.
[26] When considering whether to impose the sentence of preventive detention the
Court must
take into account a number of factors, and I am quoting from the section:
(a) any pattern of serious offending disclosed
by [your] history; and
(b) the seriousness of the harm to the community caused by [your]
offending; and
(c)
infor mation indicating a tendency to commit serious offences in future;
and
(d) the absence of, or failure of, efforts
by [you] to address the cause or
causes of [your] offending; and
(e) the principle that a lengthy determinate sentence
is preferable if this
provides adequate protection for society. (s 87(4))
[27] And I am going to talk now about each of
these factors in turn.
Pattern of serious offending?
[28] The Crown submission is that there is a clear pattern of serious
offending. It
is said you have offended consistently over an 11 year period with offences of both a
serious sexual and violent nature.
The submission is that your offending has been
interrupted only by periods of imprisonment. You offend whenever you are under
pressure
and regularly on your release. The serious offending has been against male
and female, the very young and adult, both those known to you and strangers.
[29] Your counsel submits that the
focus of this application would be on sexual
offending. Mr Gorringe submits that the Crown's reliance on violent offending
overstates
the case as, in his submission, there has been just the one incident of
serious violence. In that respect Mr Gorringe suggests that
your offending is seen as
falling into three groups. In relation to this sexual offending, while the offences are
serious, the submission
is that the pattern is not so plain. While there is some
similarit y in the 1996 and current offences, there is a significant gap
between those
two. As Mr Gorringe acknowledges, that does have to be considered in light of the
fact that for a good part of this
time you were in prison. The submission is also
made that there are particular circumstances of the offending involving your former
which provoked what Mr Gorringe describes as your "exploding" in the way that
you did.
[30] The remaining offences are different
in type but overall there is a pattern of
serious offending albeit not as similar in type as is, unfortunately, often the case.
The seriousness of the harm to the community caused by the offending
[31] The Crown correctly points to the tragic effects of
this sort of conduct on
very young children. In your case, there have been a number of victims over the
years although, as Mr Gorringe
says, in terms of the sexual offending against young
girls that has been at the level of indecent assault.
Information indicating
a tendency to commit serious offences in the future
[32] In terms of the information indicating a tendency to commit serious
offences
in the future, I have already referred to the two reports from the health assessors, and
to the pre-sentence report.
[33]
The Crown points, first, to your past behaviour: over a significant period you
have, when at liberty, committed violent and/or
sexual offences. The Crown also
relies on the two reports from the health assessors and from the pre-sentence report
writer. On the
basis of this information, the Crown submits that the question is not if
but when you will commit a serious sexual offence or a serious
violent offence.
[34] On your behalf, Mr Gorringe emphasises that both of the health assessors
opened their recommendations by
reference to treatment for sexual offending. He
points out that the two treatment programmes, Te Piriti and Kia Marama, are known
for a high success rate. He says a reasonable inference is that a satisfactory
complet ion of such a programme would reduce
significantly your tendency to re-
offend. I hope that is so. However, there is no real challenge to the assessment that
there is
something in the order of a moderate to high chance of your re-offending in
this same way unless successfully treated.
Absence
of or failure of efforts by the offender to address causes of offending
[35] In terms of the absence of or failure of your efforts
to address the causes of
your offending, you were on parole whilst this offending occurred. Further, in the
course of the sentence
imposed for the offending between 1990 and 1995, you were
released on parole and attended a three month residential violence prevention
programme and also took part in psychological counselling. In 1997 you attended
the "Hamilton Steps to Safety Programme for Sex Offenders"
after your release but
did not complete the programme as you re-offended. The Community Probation
Service records reveal that as
a result of this counselling and treatment,
ther e were no significant signs of improvement in the way [you] were coping
with [your] life and it was considered that neither group nor individual
counselling were effective in assisting [you]
to change [your] behaviour.
[36] You attended, in 1998, a 12 month intensive supervision programme under
Maatua Whangai. The
Crown submission is that this was an extensive programme
covering a significant number of important behavioural matters. Again, it is noted
"this intervention did not break
[your] cycle of violent offending".
[37] You attended a further Whakamana Wananga course in November 1999 and
also completed
a Straight Thinking programme, alcohol and drug counselling and
relat ionship counselling.
[38] On the basis of this material,
the Crown says the issue is not about your
willingness to be treated but rather the effectiveness of such treatment in preventing
further offending of a serious violent or sexual nature that is in issue given the failure
of the previous programmes.
[39] Your
counsel emphasises that it does not appear you have had the chance of
an intensive sexual treatment programme as contemplated by
the reports. Indeed, it
is said that almost none of the assistance you have had has addressed the issue of
your sexual risk.
[40]
Obviously, the apparent lack of success of these earlier programmes is a
concern. The positive aspect is your willingness now to
attend a sexual offenders'
programme.
Lengthy determinate sentence preferable if provides adequate protection for
society
[41]
In the end, for reasons I will explain shortly, I have concluded that a lengthy
determinate sentence does provide adequate protection
for society.
The outcome
[42] You narrowly avoid preventive detention for three reasons. First, because of
the comparatively
low level and opportunistic nature of this particular offending. I
say that without minimising the impact on the complainant. That
factor alone would
probably not be enough (see: R v Bailey CA102/03, 21 July 2003 and R v K
CA57/00, 30 March 2000). Second, the
fact that you are remorseful shows you have
some insight into your offending. You are willing to undergo further treatment and
obviously
it is desirable that you be able to attend the Kia Marama or Te Piriti and
any other similar programmes. On this basis, although
previous programmes have
not been successful, there is still some prospect of rehabilitation. Third, the
possibilit y of
an extended supervision order at the time of your release is relevant in
assessing what is necessary now for the protection of the
community.
[43] On balance, I consider that a finite term of the length you will now serve is
sufficient to protect the public.
Be warned that if you re-offend in the same way on
your release, you are then likely to face a sentence of preventive detention.
Finite term
[44] I turn then to discuss the finite term I should impose. Your counsel accepts a
higher term (2½ - 3½ years
effective sentence) than would be usual for this
offending is appropriate given your history.
[45] The Crown submits the appropriate
starting point in light of the young age of
the complainant is in the range of 4½ - 5½ years imprisonment (with a minimum
term of
the maximum available of two-thirds).
[46] I have decided that a finite term of 3 years 4 months imprisonment with a
minimum
term of 2 years is appropriate for this offending. In reaching that figure, I
have used a higher starting figure (5 years) than usual
for this type of offending but I
bear in mind the following factors:
· This involved a home invasion although no breaking to
get in;
· You were on parole at the time;
· The need for individual deterrence;
· The vulnerability of the complainant
because of her age.
[47] In your favour is your guilty plea and remorse.
[48] In terms of R v C [2003] 1 NZLR 30, I then considered what was necessary
for the purposes of the safety of the community. It is relevant here that you have
only narrowly
avoided preventive detention. As the Court of Appeal in Leitch
(R v Leitch [1998] 1 NZLR 420) stated that there is room for public protection
purposes to go beyond what would otherwise be the upper level of a sentence in this
sort of situation. (See also R v Staynor CA31/96, 7 August 1996.) I add that I have
also considered totality as the term I am imposing
on you will be cumulative on your
present 7 year term.
[49] Mr Gorringe acknowledged that the Court would wish to consider
a
minimum term but suggested that release should be a matter for the Parole Board. I
consider a minimum term is necessary to reflect
the safety of the community and to
deter you from other offending in this way. You are therefore sentenced to a term of
3 years 4
months imprisonment with a minimum term of 2 years. This sentence is
cumulat ive on your present sentence.
[50] Please stand
down.
_________________________
Ellen France J
Solicitors:
Crown Solicitor, PO Box 19173, Hamilton
P F
Gorringe, PO Box 7098, Hamilton
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URL: http://www.nzlii.org/nz/cases/NZHC/2006/480.html