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R V ROGER KAHUI HC AK CRI 2006 057 001135 [2007] NZHC 1065 (12 October 2007)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                             CRI 2006 057 001135



                                        REGINA



                                            v



                          
     ROGER TIRA KAHUI



Hearing:       12 October 2007

Counsel:       Steve Haszard for Crown
               Peter J Kaye for Prisoner

Sentenced:     12 October 2007


                           SENTENCE OF WILLIAMS J


Charges:       Aggravated burglary (1)    
  Imprisonment 7 years
               Injuring with intent (1)      "      "      3 years
               Injuring with a weapon (1)
   "      "      2½ years
               Male assaults female (1)      "      "      18 months
               Indecent assault (7)
         "      "      4 years (on each)
               Sexual violation by rape (4)                Prevent ive Detention
      
        Sexual violation by unlawful sexual connection (7)
                                                           Prevent ive
Detention
               Threatening to kill (3)       Imprisonment 2½ years (on each)
               Kidnapping (1)            
                 Preventive Detention

Sentences:     On Preventive Detention with minimum period of imprisonment for
          
    16 years


____________________________________________________________________




R V ROGER KAHUI HC AK CRI 2006 057 001135
12 October 2007

Mr Kahui: It is customary for those being sentenced to stand but sentencing
remarks these days are necessarily
so lengthy you can remain seated, as can the
escort until I ask you to stand towards the end of what I have to say.

____________________________________________________________________



ROGER TIRA KAHUI

       Introduction


[1]    You appear for sentence this morning, the jury having convicted you at the
conclusio
n of your trial on all 26 counts in the indictment against you. All were
committed over a period of some four to five hours on 13
June last year. The
convict ions include one count of aggravated burglary, one of injuring with intent,
one of injuring with a weapon
together with one of male assaults female, seven of
indecent assault, 11 of sexual violation including four of rape and seven of
unlawful
sexual connection including oral sex on the complainant (four counts), digital
penetration (one count) and two of you forcing
her to give you oral sex. In addition,
you were convicted of three counts of threatening to kill and a final count of
kidnapping.


[2]    As counsel have said, essentially there is only one major question, namely
whether you are to be sentenced to Preventive
Detention or a lengthy finite term
with, in either case, the question of a minimum period of imprisonment before you
beco me eligible
for parole.


       Facts


[3]    The complainant lived alone. You admitted at trial that her house was only a
few hundred metres
from where you lived. You had never met her before the night
of 13 June 2006.


[4]    But one of the disturbing features of the
case was that you were able to
describe to her some of her clothing that she was not wearing on the night of the
offending. You knew
she owned a vibrator. You knew she had handcuffs and at

least one pornographic videotape in the house. While it may have been possible
you
acquired some of that knowledge while you rummaged through her property that
night, you could not have come by all that knowledge
by those means. So there is a
strong implication that you had either been stalking or watching her, or that you had
been inside her
property before 13 June 2006.          Given your lengthy history of
burglaries, the latter is by no means impossible. But you are
to be sentenced only for
offending of which were convicted and accordingly your knowledge of her
belo ngings is relevant only as
an aggravating feature of some of your offending.


[5]       You gained entry to her home that night by a trick, having knocked
at her
door about 8:30-8:45pm asking to use her phone on the pretext your truck had
broken down and you needed to telephone for assistance.
She tried to protect herself
by passing over her cordless phone and again locking the door, but you forced your
way into her house
carrying two weapons: a pair of scissors and a hammer you had
taken from her shed. You were partially disguised, you were gloved
throughout the
incident, and your forced entry into her home gave rise to the aggravated burglary
charge.


[6]       There was a
struggle in which you subdued her, despite her efforts to resist
and screaming for assistance. You threatened her with the weapons.
You punched
her four or five times around the head and the trial photographs showed some of the
reasonably significant damage that
caused. That gave rise to the charges of injuring
with intent and assault with a weapon.


[7]       The degrading sexual offending
then began.        You ordered her into her
bedroom and she disrobed when you commanded her. You performed oral sex on
her despite
her protestations and then raped her.


[8]       You then placed a pillowcase over her head because, as you told Police, you
did
not want her to see you. The pillowcase remained in place for virtually the
who le of the rest of the time you were in her flat,
although it must be acknowledged
that during the latter part of the period that was her choice. She said :

          "I believed
the less chance of seeing his face the more chance I had of
          surviving that night".

[9]    You ordered her to shower twice
during the episode, emphasising she should
wash between her legs. Obviously you knew enough to know that would reduce the
chances
of your DNA being found. When she later had your pubic hair in her mouth
you ordered her to wipe it on your glove. The toilet roll
you used you put on the
duvet, obviously intending to take away ­ again, to lessen the chance of your
discovery.


[10]   You then
ordered her to don clothing which you selected. It was at that point
you told her you had seen her wearing a long black skirt prior
to that night and that
she looked "sexy" in it.


[11]   In the lounge she complied with your directions to play with herself, you
tried to rape her again but were unable to achieve penetration until you were behind.
You ordered her to shower again.


[12]   You
then ordered her back into the bedroom, required her to put on other
clothing and found some toy handcuffs. Knowing she had a vibrator,
you used it on
her and forced her to use it on herself on a number of occasions, then you penetrated
her with your gloved finger.


[13]   You rummaged through her handbag, demanded her pin number and
threatened to kill her if it was wrong.


[14]   After repetition
of the offending with the vibrator, there was a further act of
rape when you ordered her to "ride" you.


[15]   Telling her you
knew she had a pornographic video, you required her to play
it and raped her during the playing of the movie. You did not believe
her reply when
you asked if she would go to the Police but said:

       "that doesn't matter because I've got you for as long as
I want you now".

[16]   You then decided to leave, taking her with you. There is some force in
Mr Haszard's point this morning that
there is no indication in the evidence that you
were not intending to return to the flat.

[17]    You apparently recorded her voice
on some device ­ probably her cellphone
­ saying that everything which occurred was consensual. You handcuffed her and
left in her
car. When you stopped the car at an ATM machine she managed to
escape despite your pulling her hair to stop her. She ran some distance
to an all-
night service station to call the Police and summon other assistance. You then drove
off in her car.


[18]    Throughout
the time you were in her home, she was plainly terrified,
repeatedly asked you not to kill her and was repeatedly verbally abused
by you. The
effect on the woman that night was seen and heard by the jury on the service station
surveillance tape and the recording of the 111 call. As can be readily understood,
she was deeply, deeply disturbed by what occurred and any chance that the jury
might have accepted your defence that the later events
occurred with consent was, in
all likelihood, completely destroyed by the playing of her recordings to the jury.


[19]    To the
Police, you said that you went to her house for money to support your
P habit, not for sex, and never intended to kill her, though
you acknowledged
threatening her.


[20]    You burnt the gloves, threw your shoes into the rubbish, and disposed of her
cellphone
by throwing it away. It has never been found.


        Complainant's victim impact statement


[21]    I have listened carefully
to the reading of the complainant's victim impact
statement this morning. As has been observed on other occasions, the provision
of
the victim impact statements we have now had over the past three or four years each
time demonstrates how partial was the sentencing
process before such statements
were available.


[22]    Here, too, we have the complainant's evidence and the silent but graphic
evidence of the service station surveillance tape and the distraught voice to be heard
in the background of the 111 call. She was
dishevelled, she was injured, she was
still handcuffed and she was frantic.

[23]    The consequences of what you did that night
clearly, from the victim impact
statement are graphic and persist today despite assistance with counselling.


[24]    It must be
said, however, that she displayed great presence of mind,
determinat ion and courage to try and ensure that there was sufficient
evidence of you
left in her flat to result in your conviction.


        Probation report


[25]    The Probation report says, as
do the health professionals, that you only
reluctant ly involved yourself in interview. You were adamant about your innocence
on
all these counts to the Probation Service ­ and Mr Kaye has, on your instructions,
expressed this morning that you continue to maintain
that you are innocent of all
these charges.


[26]    You have spent much of your life, certainly much of the last 20 years, in
gaol.
You are now wholly institutionalized. When you are released you get drunk,
you reoffend, you return to gaol. You have no family ties.
You were taken from
your parents, apparently from about the age of 7. There is some evidence that you
were living on the streets
by the age of 9. You were neglected as a child and subject
to physical, social and emotional abuse.


[27]    The Probation Officer
comments that you have no idea how to change your
attitude, and no idea how to form a relationship with a woman.           There
is no
indicat ion to the Probation Service of remorse. The officer concludes you have a
"high risk of reoffending with no motivation
to change".


[28]    Your institutionalization is probably best summed up by the comment you
made to the Probation Service:    
    "In here you rely on the prison guards to do
everyt hing for you. Out there, there is no one you can rely on for anything". As
Mr Kaye has observed, that is a sad chronicle but unfortunately you have shown no
inclinat ion over the years to change your ways.

       Previous convictions


[29]   Over the period since 1985 you have amassed over 130 convictions. At the
conclusio n of your
trial you refused to acknowledged the list of previous
convict ions. There was an opportunity given for formal objection to be raised
to
those. That opportunity was not taken. I work on the basis that you now accept that
list of previous convictions.


[30]   Most
of them, about 80, are for dishonesty, principally burglaries. But there
are about 23 convictions for various anti-social offending
behaviour including failure
to comply with bail, escaping from custody and the like, and a few driving and drugs
offences. But, most
significant as far as sentencing this morning is concerned are the
offences involving violence and the few offences involving sex.


[31]   In 2002 there was an aggravated assault for
which you were gaoled. In 1999
there was an assault. In 1998 an aggravated assault. In 1998 also five assaults also
with a weapon
and an injuring with intent to injure.


[32]   But, of particular significance are the two episodes in 1989 and 1992 for
which the
Crown has provided the sentencing notes. In 1989, when you were 19
years of age, you were sentenced to 3½ years' imprisonment for
a number of
offences including burglaries with intent to commit crime and being found with a
knife. On the same day you robbed the
occupant of a house. Shortly afterwards
there were two escapes from prison and a threatening of a detective with a knife.
The Judge
on that occasion, Greig J, [R v Kahui HC Palmerston North S4/89
24 February 1989] said that:

       "You are a young man who has
suffered many years of negligence - the
       price for which the community is now paying."

That is a comment which is as true
today as it was in 1989.


[33]   And then in 1992 you were sentenced to a net term of imprisonment of
7 years 1 month by Ellis J
for conspiracy to rape, indecent assault, two kidnappings
and three aggravated burglaries [R v Kahui HC PN T/32/91, 24 August 1992].

[34]   That is a case which has some disquieting echoes of what took place in this
instance and for which you are being sentenced
this morning. You broke into a
house with an associate, armed with a knife. One of the women ran away. You
chased her, caught her
and held the knife to her throat. Later that same night you
burgled another property and confronted a woman in her bed. You let your
associate
in and then agreed that you would rape the two women in the house. Your associate
raped one, but you did not persist with
the other. But, as the Judge said, that brief
summary scarcely describes the "horror of what you did and the ordeal of the three
women" involved in the two sets of offending.


       Health Professionals' Reports


[35]   I turn next, as is required by statute,
to look at the reports of the health
professio nals, the psychiatrist and psychologist.


[36]   You refused to participate in any
interviews with the two health
professio nals. Mr Kaye says that was not intended to be insulting, but was merely a
recognit ion
of the inevitability of the outcome this morning.


[37]   There have, over recent years, been a number of occasions when persons
who
are facing the possibility of Preventive Detention have refused to participate in the
necessary interviews. If that stance by
you and others reflects a view in the prison
populat ion that those facing Preventive Detention can diminish the chances of that
sentence being imposed, then two things need to be said about it.


[38]   The first is that although the health professionals, both
in this case and in
others, are necessarily professionally cautious about forecasting the future and
although their reports are of
great assistance in considering whether Preventive
Detention is appropriate, it is Judges - not the health professionals - who ultimately
decide the sentence. Accordingly, that refusal to participate in interviews is unlikely
to help in your position. Indeed, the refusal
to co-operate could imply that the
person himself recognises the likelihood of committing further sexual or violent
offences on release.

[39]   The Court of Appeal said, admittedly in relation to an Extended Supervision
Order but it is equally relevant here [Belcher
v Chief Executive of Department of
Corrections  [2007] 1 NZLR 507, 533-534 para [48]].

       The statutory scheme assumes that reports will be provided and it would
       ma ke a mockery of that
scheme if an offender could derail the process by
       refusing to see any psychologist ... to provide the necessary report.

[40]
  So the fact that you declined to participate in interviews for sentencing does
not assist you.


[41]   That notwithstanding, the
report from Dr Ian Goodwin, the psychiatrist, is
brief. He did the best he could with the limited information available but because
he
was unable to interview you he could not make any prediction for the future. He
does, however, note that the information available
about you shows that you have
never suffered from a serious mental illness and your problems stem from an anti-
social personality
structure.


[42]   Ms Bellve-Wack, however has been able to assist with a fuller report based
on sexual offending risk assessment
instruments that do not necessarily depend on an
interview being undertaken. She, too, notes that there is no indication in your
past,
despite psychiatric evaluation, that you suffer from major mental illness. What you
suffer from is a personality disorder with
anti-social traits.


[43]   Ms Bellve-Wack makes the point that you have had many times in prison the
opportunit y to participate
in rehabilitative programmes, but have never involved
yourself in those. She also makes the point that none of the gaol terms to
which you
have been sentenced appear to have had any deterrent effect.


[44]   Indeed the Probation Officer's calculation ­ and
I acknowledge I have not
checked it - is that you have been sentenced to a total of something over 100 years
in gaol over the period
of your criminal offending. Of course nearly all of those
were concurrent sentences but that, in itself, if correct, shows how minimal
is the
chance of your changing your ways.

[45]    Ms Bellve-Wack undertook the sexual risk assessments and reached the
conclusio
n that you have demonstrated a number of factors for sexual recidivism.
As to the pattern of serious offending, the report refers
to the large number of
vio lence convictions and some are sexual offending. The seriousness of the harm to
your numerous victims
is noted as -

        "the presence of a large number of static and dynamic risk factors that
        correlate with future anti-social
violent and asexual recidivism."

[46]    Acknowledging that forecasting risk is problematic, Ms Bellve-Wack
nonetheless says that
it is not possible to predict the likelihood of your future
offending at this stage simply because, whatever is the outcome this
morning, your
release to the community will be long-postponed.


        Crown's submissions


[47]    For the Crown, Mr Haszard
seeks the imposition of a sentence of Preventive
Detention with a minimum period of at least 15 years' imprisonment before your
eligibilit
y for release and submits, in reliance on authority such as R v Leitch  [1998]
1 NZLR 420, 428 and R v C  [2003] 1 NZLR 30 at [5]-[8] that, in terms of the
Sentencing Act you "pose a significant and ongoing risk" to the community. I do
not intend to refer
to those and other authorities relating to your sentencing at length
but in the typescript of these remarks the details and references
will be included. In
those cases the Court of Appeal said that "Preventive Detention is not a sentence of
last resort".


[48]  
 Mr Haszard submits it is accordingly necessary to protect the community
fro m you.


[49]    He submits that your history discloses
a pattern of serious offending
demonstrated by the list of previous convictions over the last 22 years for dishonesty
and violence.
He particularly relies on the two earlier sentences where I quoted from
the remarks of other Judges.


[50]    Mr Haszard also makes
the point that the 26 offences for which you are now
being sentenced were committed whilst you were on bail, you having been admitted

to bail on five charges of being found without reasonable excuse in a yard only about
a month before your present offending.


[51]   The Crown also points to the victim impact statement and the obvious
seriousness in the harm you have done to the community
as shown by your pattern of
convict ions over the years.


[52]   As to a demonstrated tendency for you to commit serious offences
in the
future, the Crown carefully analysed the health professionals' reports, particularly
emphasising your failure to undertake
or complete any of the programmes available
to you in prison to address and reduce the chance of future offending.


[53]   Mr Haszard
analysed the aggravating factors in this case including your
taking weapons to the complainant's house and threatening to use them,
your
vio lence in punching her and in other ways, the ever-present threat of violence
throughout the five hour ordeal and her belief
you would kill her.


[54]   The Crown stresses the means by which you gained access to the house and
the duration of the offending,
the added elements of cruelty in your offending
- without the savagery of the offending itself - her vulnerability and your
premeditat
ion. The Crown suggests there are no mitigating features in this case.
Mr Kaye acknowledges that to be correct.


[55]   Therefore,
in reliance on authority, the Crown submits the statutory minimum
period of imprisonment of five years should be well exceeded in
this case by the
gravit y of your offending.


[56]   In dealing with the next step, whether a longer period than the minimum is
required to protect the community, the Crown made reference to a number of cases
where minimum periods of seven to 20 years have
been imposed and upheld, and a
number of those will be referred to in detail in the typescript.


[Draft written Sentencing Remarks
discussed with counsel during submissions but
not read during sentencing remarks]:

[57]   The next step is to inquire whether a
longer period is required to protect the
communit y and in that regard the Crown where makes reference to cases where
minimum periods
of imprisonment of seven to 20 years have been imposed and
upheld:   R v Toia CA310/06 3 August 2007  [2007] NZCA 331 where a seven year
minimum period of imprisonment was upheld; R v Exley CA279/06, 7 September
2007,  [2007] NZCA 393 where a minimum term of eight years' imprisonment was
imposed (which would have been 10 years had there not been guilty pleas); R
v
Goodwin (CA62/06, 4 December 2006) where a nine year minimum period of
imprisonment was upheld where a woman was abducted and a
pillowcase put over
her head and a gag in her mouth but which resulted only in two charges; R v Miller
(HC CHCH CRI.2005-019-13007)
where seven years' imprisonment was imposed
though the minimum period of imprisonment would have been 10 years had it not
been for
guilty pleas; R v Al Baiiaty (CA120/05, 17 October 2005) where a seven
year minimum period of imprisonment was imposed but the Court
of Appeal said it
could have been higher; R v Luamanu (CA343/04, 1 March 2005) where an eight
year period was upheld for multiple
offending committed over a single night whilst
the complainant had a pillowcase over her head but where the scale and range of
offending
was nowhere near as serious as yours; R v Reekie (CA339/03 3 August
2004) where a 25 year term was reduced to 20 years for multiple
offending
committed over a 10 year period; R v Johnson (CA221/03, 23 October 2003) where
a 15 year minimum period of imprisonment
was reduced to 11 years' imprisonment
for an appellant who had reoffended whilst on parole against three victims, but
where the ultimate
term was reduced for early guilty pleas; R v Albert (CA429/01,
14 March 2002) where a 14 year term was reduced to 12 years, for invasions
into
three victims' homes and the commission of a number of offences in 1998 but
where, since then, the appellant had been sentenced
to Preventive Detention for other
crimes and the Court of Appeal considered that had he been sentenced for all the
crimes the minimum
non-parole period would have been less.


       Defence submissions


[58]   For you, Mr Kaye, stressing that you maintain your
innocence, eloquently put
forward on your behalf everything that could be said for you this morning.
Mr Cassidy ably represented
you at trial also. Mr Kaye concedes you are eligible to

be sentenced to Preventive Detention but he carefully analysed your offending
history and, as I said, stressed that as regards the health professionals' reports you
were not intending to be insulting in refusing
to participate. However he says on
your behalf, you are probably institutionalized, with little faith in the authorities,
medical
or otherwise, with whom you have come into contact over the years.


[59]   Whilst counsel says you lack confidence in the programmes
available in
prison, it must immediately be said that there have been a number of opportunities
for rehabilitative interventions
that have been offered over the years whilst you have
been in gaol but you have chosen not to involve yourself in any of them.


[60]   As to the minimum term suggested by the Crown, Mr Kaye suggests the
minimum term of 15 years would be excessive given your
age and given the fact you
are likely to be serving Preventive Detention. Seven to 10 years may be more
appropriate and in line with
authority.


                    Mr Kahui, will you and the escort now stand.


       Discussion


[61]   When you, disguised and
armed with dangerous weapons, burst into the
complainant's home on a pretext on the evening of 13 June 2006, you were a man
who,
over the previous 20 years or so, had amassed over 130 convictions for a wide
range of offences including numerous offences of violence
- especially the two
episodes which I have earlier detailed which evoke some disquieting echoes of your
offending that night. In
addition, you were on bail on a number of offences.


[62]   When you forced your way into her home it was also reasonably clear
that,
by one means or another, you already knew a good deal about her and her lifestyle
and discovered more as you rummaged through
her flat. You took advantage of that
knowledge for the rest of the night. During what was about four hours or a little
more, you
committed all 26 of the offences in the indictment. In fact, you almost
certainly committed more, such as converting her car and stealing the money which

was in her purse,
but for which you were not charged and for which you will not be
sentenced.


[63]   Over that four hour period, you subjected that
extremely vulnerable
complainant to the terrifying ordeal which she described in evidence and in her
vict im impact statement with
the consequences from which she still suffers. She was
continually subjected, against her repeated objections, to sexual indignities
and other
behaviour which she clearly found repellent, particularly as far as you were
concerned. As an adjunct to the offending
itself, you insisted on her undertaking
other actions which could only have been designed both to titillate you and to
increase your
gratification and increase the terror from which she was suffering.
Examples include your insisting on her wearing the skirt you
had seen her wearing
earlier, using the vibrator, viewing the pornographic video and the wearing of the
handcuffs.


[64]   All of
that was a deliberate, premeditated expression of what you, given your
disordered background, must have regarded as your sexual entitlement.
Put in the
terms you yourself used:

       "it was the only way I could fuck her".

[65]   You knew she would go to the Police but,
as you put it:

       "that doesn't matter because I've got you for as long as I want you
       now".

[66]   You plainly enjoyed
having her in your thrall as your sexual plaything, forced
to do whatever you demanded, whenever you demanded and despite her pleas
to you
to desist. Entirely understandably throughout her agonized ordeal, she thought you
would kill her. You said several times
you had no intention of doing so but she had
been punched, threatened, and repeatedly subjected to unwanted sexual indignities of
the gravest sort. Rapists sometimes kill to lessen the chance of being called to
account for their actions. And when you insisted
on putting a pillow-case over her
head for most of the evening so she would be unable to recognise you, when you
remained gloved
throughout and took other measures to lessen the chance of

detection, when you insisted on her showering in a way you thought would
remove
your DNA, why should she believe your denials that you would kill her?


[67]    Though fearing death, she determinedly and
courageously tried to do what
she could to ensure you would be caught and forced to accept responsibility for your
actions. Her efforts
were sufficiently successful that at the commencement of the
trial you filed a formal admission accepting that you were the man who
invaded her
house during the period in question.


[68]    Despite the jury's overwhelming and rapid rejection of your defence, you
still
maintain your innocence on all the charges you faced. There is not the slightest hint
of remorse or even recognition of the
deep physical and psychological harm you
dished out to the victim that night or for the serious consequences from which she
still
suffers.


[69]    Short of cases of violent and sexual and other offending resulting in
ho micide, the raft of concentrated offending
you committed on the victim over the
four to five hour period that night is pretty much as serious an episode of sexual and
vio lent
offending as most that come before the Courts.


[70]    As mentioned at the outset, on the qualifying offences there is really only
one
issue: whether you are to be sentenced to Preventive Detention or to a very lengthy
finit e term on those offences, particularly
the 11 convictions of sexual violation each
of which carries a maximum of 20 years' imprisonment.


[71]    On the offences which
do not qualify for Preventive Detention, you will be
sentenced as follows:


        a)       On the aggravated burglary, injuring
with intent and assault with a
                 weapon, all the counts relating to your forced entry into the
                 complainant's
home, against maximum penalties of 14, five and five
                 years' imprisonment respectively, you are sentenced to seven, three
                 and
two and a half years' imprisonment respectively.

              All those sentences and in fact all the sentences that will be imposed
              this morning will be served concurrently.


       b)     On the three counts of threatening to kill, each of which
carries a
              maximum of seven years' imprisonment, you will be sentenced to two
              and a half years' imprisonment
on each


       c)     On the conviction for male assaults female relating to your trying to
              drag her back into the
car by her hair as she was in the course of
              escaping at the end of her ordeal, against the maximum of two years'
 
            imprisonment, you are sentenced to 18 months' imprisonment on
              that count.


       d)     On the seven
convictions for indecent assault, each of which carries a
              maximum of seven years' imprisonment, six relating to the
use of the
              vibrator and one relating to the count of your requiring her to
              masturbate you, you are sentenced
to four years' imprisonment on
              each.


[72]   The counts which do qualify you for a sentence of Preventive Detention
are :


       a)     The 11 convictions for sexual violation, each of which carries a
              maximum of 20 years' imprisonment.
Four of those were for rape,
              three for unlawful sexual connection between her genitalia and your
              mouth,
three for unlawful sexual connection between her mouth and
              your penis, and one involving unlawful sexual connection
between
              your fingers and her genitalia not involving vaginal penetration;


       b)     The count of kidnapping which
carries a maximum of 14 years'
              imprisonment.      That is most clearly demonstrated by your
              handcuffing
her before leaving her flat, but the Crown takes the stance
              that the whole incident from your entry into the flat amounted
to a
              kidnapping because she was not free to leave. On reflection, that
              must be right.

[73]   The first
aspect which must be considered is any pattern of serious offending
disclosed by your history. It is to be noted that Parliament
has not limited that
assessment to qualifying sexual or violent offences so all serious offending can be
taken into account.


[74]
  Clearly this requirement is satisfied in your case. You have been convicted
of over 130 crimes since 1985. They are of varying
seriousness but they include a
large number for dishonesty, a large number of anti-social offences and a number
invo lving violence
as earlier detailed. All resulted in lengthy terms of imprisonment.
As I mentioned before, on the Probation Officer's calculations
you have been
sentenced to a century of imprisonment, although many of the sentences were
concurrent.


[75]   But the most telling
previous convictions, and the pattern of serious
offending are the two clutches of offending to which reference was earlier made.


[76]   It is convenient next to consider whether all the material indicates you have a
tendency to commit future serious offences.


[77]   Again, there can be no doubt whatever in that regard. You seem to have
spent well over half your adult life in prison since
you were about 16 ­ and doubtless
the only reason you have not amassed many more convictions is that you have been
in gaol for so
much of your life. That adds to the certainty that in periods of liberty
in the future, you will continue to commit offences and
many will be serious
offences. Your acknowledgement to the Probation Officer says as much.


[78]   The community has suffered significant
harm at your hands. That is not just
those who have been physically harmed or threatened by you over the course of your
offending
but also those who have been the victims of the many burglaries of which
you have been convicted. People who have burgled feel a sense of defilement, less
of course
than those who are physically harmed, but they are harmed nonetheless.


[79]   The fourth criterion is the absence or failure of
efforts by you to address the
causes of your offending. This, too, is plainly satisfied. As I have mentioned, you

have had many
opportunities to engage in programmes available to those in prison to
rehabilitate themselves and reduce the risk of reoffending.
But you have steadfastly
refused throughout your lengthy prison history to participate and, as the Probation
Officer said, you really
have no idea about how to embark on such programmes and
no wish to do so.


[80]   The overall question is whether the material satisfies
the Court that you are
likely to commit other qualifying sexual or violent offences if released at the normal
sentence expiry date.


[81]   In that regard, whilst your history of sexual offending is not extensive in
numbers of convictions, what is significant
is the manner in which the offences were
committed. In particular, the offences against the present complainant were not just
offences
of violence and violent sexual offending, but violent sexual offending
committed in circumstances of degradation and cruelty where
you saw what you
what you were doing as a matter of entitlement.


[82]   Seen alongside your history of other violent offending
and offending
generally, the only conclusion open is that you are likely to commit other qualifying
sexual or violent offences if
released at the normal sentence expiry date.


[83]   The further conclusion which must be reached is whether you pose a
significant
and ongoing risk to members of the community so a sentence of
Prevent ive Detention is appropriate.


[84]   And the final matter
which must be considered in that regard is whether a
lengthy finite sentence would provide adequate protection for society and therefore
that is the type of sentence that should be imposed.


[85]   There can be no doubt that society will not be adequately protected
from you
if a finite sentence is imposed. It is not putting the matter too high to say that
essent ially all your limited periods
of liberty over the past 20 plus years have been
occupied in offending, as the Probation Officer noted, and there is no reason to
doubt
that the same would apply were you to be released at the end of a finite sentence.

[86]   Society needs to be protected from
you for longer than that. And in that
regard it is pertinent to keep in mind the lifetime re-call to which those sentenced to
Prevent
ive Detention but later released are subject.


[87]   The sentence of the Court therefore on all the counts of sexual violation
and
the kidnapping is that you be sentenced to Preventive Detention.


[88]   Parliament finally requires me to fix a minimum period
that you must serve
in prison before becoming eligible for release, with a minimum of five years. The
law requires that to be assessed
in a two-stage process; first, fixing the minimum
period which reflects the gravity of the offence at a level sufficient to punish
you,
denounce your conduct and deter others, bringing into account all relevant
sentencing considerations including appropriate reductions;
        and secondly, to
consider whether any longer period is required for community safety.


[89]   In my view, the most convenient
and appropriate approach to the first of
those steps is to consider the minimum period of imprisonment that might have been
imposed
had you been sentenced to a finite term but with the two-thirds mandatory
maximum being just a factor. Mr Kaye, in the cases which
will appear in the
typescript, has indicated some authorities suggesting that in those circumstances 16-
18 years imprisonment minimum
has been upheld but, as I remarked to him during
his submissions, those cases are affected by the fact that they were home invasion
cases when there was statutory minimum in our law for a period for such offending.
[R v Martin HC Rotorua T.00045 28 February 2001; R v TRTA CA346/05 27 June
2006;
R v Wilson CA135/02 26 August 2002; R v B CA336/01 9 May 2002; R v
Selwyn CA327/01 6 December 2001; R v Toto CA160/01 26 November
2001; R v
Leger (CA444/00 13 June 2001 and R v Leatigaga HC CHCH CRI.2005-9-14538,
19 October 2006].


[90]   Had a finite sentence
been imposed on the lead convictions for sexual
vio lat ion aggravated by the kidnapping, the term would have been very much
towards
the maximum of 20 years' imprisonment, with all terms to be served
concurrent ly. The circumstances of your background; your previous
history of
offending;   all the circumstances relating to your offending on 13 June 2006

including the number of offences, particularly
the sexual violations; the lack of any
sense of responsibility or remorse on your part for the harm done to your victims and
the
community; and the need to denounce the conduct in which you were involved
and protect the community from you, would have indicated
that a term of
imprisonment in those circumstances would have been imposed of at least 10,
possibly much closer to 15 years' imprisonment,
probably more.


[91]     The next question is whether a longer term is appropriate to protect the
communit y from your depradations.
Had you been sentenced to a finite term of
imprisonment for the sexual violations of perhaps somewhere near 18 years, the
maximum
non-parole period would have been appropriate, that is to say about 12
years.


[92]     And, having weighed all the factors discussed
throughout this sentencing and
reflected at length, the conclusion is that a minimum term above the top of the range
I have discussed
is the appropriate one following imposition of the sentences of
Prevent ive Detention.


[93]     So in the ultimate result, you
are sentenced to Preventive Detention on all
convict ions for sexual violation and kidnapping.           The minimum period of
imprisonment
required to be served before you are eligible for release will be
16 years. Stand down.




                                    
        .........................................
                                                      WILLIAMS J.