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R v Britz [2013] NZHC 1415 (13 June 2013)

Last Updated: 1 July 2013

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-1185

CRI-2008-019-3726 [2013] NZHC 1415

THE QUEEN

v

JACOB ADRIAAN BRITZ

Hearing: 13 June 2013

Counsel: G Kayes for the Crown

A Holland for Mr Britz

Sentencing: 13 June 2013

_{SENTENCE OF WOODHOUSE J}

Solicitors:

Mr G Kayes, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr A Holland, Public Defence Service, Auckland

R v BRITZ [2013] NZHC 1415 [13 June 2013]

[1] It will take me a little bit of time to explain the sentence. Mr Britz, you can remain seated. I will explain the sentence to you and to everybody else in the Court. At the end of it you will need to stand when I impose the formal sentence.

[2] You appear for sentence for the following sexual offences against three victims – and I will refer to them as victim A, B and C because their names are not to be mentioned:

(a) The first was assault with intent to sexually violate. This was in

February 2004 against victim A.

(b) In March and April 2007 you committed five offences against victim B – two of rape, two of unlawful sexual connection by anal rape and one of unlawful sexual connection with an object. Both of the offences of vaginal rape and of anal rape were representative – you committed these offences on a number of occasions firstly between 10 and 12 March 2007 and again between 17 March and 24 April 2007.

(c) In January 2008 you committed two offences against victim C – unlawful sexual connection by anal rape and unlawful sexual connection with an object.

[3] Mr Britz, these are serious crimes. They are very serious.

[4] There are three possible options for sentencing you today – in broad terms, three options. I could impose a finite term of imprisonment – a fixed term in jail. If I am satisfied that the term is not sufficient to protect the public, I can impose a sentence of preventive detention – that is, a sentence that applies to you for the rest of your life. There is a different approach to that, which I will come to. Finally, because you have an intellectual disability, I could order that you receive care in a secure facility with or without a prison sentence.

[5] In your case the assessment of an appropriate sentence has presented considerable difficulties. This is because of the tension between the need to impose

a sentence which adequately deals with crimes which are particularly bad and which adequately protects the public, but also takes appropriate account of the fact of your intellectual disability and progress that has been made with some treatment.

[6] I have received and read a reasonably large number of reports from psychiatrists and psychologists and from the compulsory care co-ordinator, Mr Wyatt. These have been provided to assess preventive detention under s 88 of the Sentencing Act, to assess possible orders under s 34 of the Criminal Procedure (Mentally Impaired Persons) Act, and to assess your fitness to plead and to stand trial.

[7] I have also been assisted with advice that I have received in Court today, at my request, from Ms Visser, who is a clinical psychologist, and Mr Wyatt, the compulsory care co-ordinator.

[8] In relation to s 34 there are options available for you as a person with an intellectual disability. I note that the alternative in respect of mental disorder does not apply in your case.

[9] The assessment is assisted in your case because you have been detained at the Mason Clinic under observation as well as treatment since November 2011, or thereabouts. This has occurred because, after you were found guilty by a jury in October 2011 of the 2004 offence, issues were raised as to whether you had been fit to enter pleas of guilty to the other charges and to stand trial for the 2004 offences. The Court of Appeal, being the only Court that could assess these matters at that

point, considered you were fit in both respects.1 The Supreme Court dismissed an

application for leave to appeal.2 I note that the Court of Appeal judgment contains information relevant not only to the matters dealt with directly, but also to your sentencing, being information in addition to the matters that I will be referring to.

[10] I will address these options a little more fully. It is appropriate, however, to tell you at this point what the sentence will be. I have had to grapple with the most

appropriate mechanism for public protection. This in my judgment has come down to a question as to whether there should be preventive detention or recourse to the compulsory care order procedures through s 29 of the Intellectual Disability Act.3

With some hesitation I have decided that there should not be preventive detention. I am satisfied that the procedures through s 29 will be invoked, and without a Court order, and that this is most appropriate. There will be a determinate sentence of 12 years 4 months imprisonment with a minimum period of imprisonment of 8 years. As I have just indicated, there will not be a hybrid sentence using s 34 of the Criminal Procedure Act.4

Summary of the offences

[11] I need to set out the facts of your offending. This, in particular Mr Britz, is to explain it to other people.

Victim A

[12] In February 2004 you attempted to sexually violate victim A. She entered the women’s toilets at a local mall. You were hiding in wait in one of the cubicles. After she entered a cubicle you turned off the lights. She yelled out but you did not reply. You waited until she left the cubicle to turn the lights on. You grabbed her from behind and dragged her into a cubicle. You strangled her with both of your hands for about a minute. You did this so tightly that she could not speak. She stood on the toilet to try to loosen your grip. While continuing to strangle her, you used one of your hands to lift her skirt and partly pull her underwear down. You then tried to use one of your hands to lock the cubicle. This was the first time A could speak. She said to you – and I am quoting – “in the name of Jesus get out of here” and she offered you money. And it was only at that point that you fled.

[13] You pleaded not guilty to the charge. After a second trial the jury found you guilty. This was in October 2011. The reason for the delay in sentencing for this offence, and for the other offences, is that, after you were found guilty of this

offence, having earlier pleaded guilty to the other offences, the issues about your fitness to enter pleas of guilty and to stand trial were raised

Victim B

[14] As I have said, the offences against victim B occurred in March and April

2007. You joined a Christian dating website with the help of your sister. You contacted victim B, and in fact victim C, through this website. Victim B joined the website in February 2007. She was 32 years old and, like you, mildly intellectually disabled. And I note that the words “mild intellectual disability” is the clinical description. In laymen’s terms it is considerable disability of an intellectual kind. After some correspondence with her over the telephone you invited her on a date. The next weekend you collected her from her home address and took her to your cottage. That night when B was showering you walked into the bathroom naked. Despite B’s protests you forced your way in to the shower. And I note this is the very first day that you had been alone with her. She got out of the shower and put her clothes on. You told her she should walk around the house naked but she refused.

[15] Your cottage had a bedroom with two single beds. You and B lay in separate beds until she fell asleep. Later that night she awoke to find you had tied her wrists to the frame with a cord. She was asleep when you did that. She could not move her arms. You sat on her legs, naked, and she could not struggle against your weight as you pulled her pyjama pants off. You raped her causing her to bleed from her vagina. You untied her and told her to lie on her stomach. You then raped her anally. While raping her you attempted to insert a dildo into her vagina. She was still bleeding from her genital area. You awoke her at about 3:00 a.m. and again raped her vaginally and anally. This caused further bleeding.

[16] Later that morning you raped her again. You told her that if she told anyone you would make her – and I quote – “more sore”. And I pause to say there Mr Britz that that statement makes pretty clear that you had an understanding that what you were doing was wrong, and that is my judgment. She protested again when you rolled her on to her front saying that she was not a dog. You told her that she was

and you raped her, again, anally. You raped her again that night. She was only able to leave after she lied to you about being required to go to work.

[17] She was too ashamed to tell her family about what you had done. And I expect that her intellectual disability caused problems in that regard as well. Not knowing the dreadful treatment you were subjecting her to, her family convinced her to give you another chance. You picked her up from her home over the next few weekends in March. Although you promised her that there would be no sexual activity, you raped her repeatedly on both of these occasions – vaginally and anally.

[18] She tried to end the relationship. She told her family she did not want to see you. You repeatedly tried to contact her. You told her you wanted to marry her and she agreed but said she did not want any sexual activity until you were married. You had an engagement party. At the party you told her she should not say anything or you would hit her. During April you stayed at her house, where she lived with her family. You slept in her bed. She kept the door open so that you would not rape her. However, the next night the door was shut. You raped her repeatedly that night and the next. She described this as the worst offending. You were even more violent than before and ended up bending the bars of her bed.

[19] She was in so much pain that she saw a doctor the following morning. She could not sit down. The doctor was concerned about the extent of the injuries to her genital area. It seems the police were called but it also seems that nothing was done.

[20] Each time you raped her she told you not to. At times she begged. She told you she was in a lot of pain from your previous abuse and was bleeding. You were not deterred at all. The rape often caused further bleeding. Her injuries led to an infection and still you did not stop. You repeatedly threatened her with violence.

Victim C

[21] In June 2007, not long after the relationship with B had ended, you contacted victim C using the same website. She was living in Fiji. You corresponded with her for approximately six months. You agreed to sponsor her to live and work in New

Zealand in spite of the fact that you really had no capacity to do that. You told her you would marry her. She flew over on 14 January 2008.

[22] She stayed at your house. You slept in the same bedroom with two single beds. The night that she arrived, you and C were watching television. While she was lying on her stomach you removed her clothing and you anally raped her.

[23] The next afternoon while she was showering you went into the bathroom naked. She told you not to come in but you did. She got out of the shower and wrapped a towel around herself. You pulled her into the bedroom and tied her hands behind her back. You used the handle of a toilet brush to penetrate her vagina, and you hit that brush into her with your hand. This caused her to bleed and suffer significant pain. You then untied her. She was feeling faint so you took her to the doctor. The extent of her injuries was such that she was admitted to hospital.

[24] Police were called. Charges in relation to C were laid about this time followed by charges in May 2008 in relation to victim B. You pleaded guilty to the charges in relation to victims B and C in October 2009. The charge in relation to victim A did not occur, it appears, until around February 2010.5

Victim impact statements

[25] I have victim impact statements. I will simply summarise aspects.

[26] Victim A says it is impossible to put the extent of her suffering into words. And whether you can remember this or not Mr Britz, you caused her – the woman in the mall – real suffering. She has been able to describe some of it. At first, she could not eat or drink and required counselling and the assistance of her mother to get her through her darkest days. She suffered depression and had to take considerable time off work. A suffers from nightmares and is afraid of the dark. She is extremely cautious of her surroundings and is afraid to be in a confined space

_{alone. Although she did not have any serious physical injuries, she has to be}

5 The extended procedural history in respect of all of the charges is set out more fully by the Court of

Appeal: Britz v R, above n 1.

particular about how she touches her neck because it triggers memories of your attack – frightening memories.

[27] B describes the physical pain she suffered as a result of your attacks and the consequent infection. It took months of treatment with antibiotics for her to recover. She could not walk normally or lie on her side. Her emotional suffering has been severe. She cannot sleep alone anymore; she has to sleep with her mother. She sought treatment from psychologists but it did not help her and she attempted suicide with sleeping pills she had been prescribed. Although she knows that not all men are the same, she says that it is how she feels and she will never want contact with another man again.

[28] C has also suffered lasting physical injury from your attack. She said she placed all of her trust in you and you betrayed her. She does not want to upset her family so she has not been able to share her anguish with other people.

Personal circumstances

[29] Your personal circumstances – and I will describe these briefly at this point. You are aged 42. Apart from this offending you have no prior convictions. You were born in South Africa and, as I understand it, came to New Zealand in 2003. The most significant consideration in relation to your personal circumstances is that you have an intellectual disability within the meaning of s 7 of the Intellectual Disability Act. You sustained a brain injury and other injuries as a result of a car accident in South Africa when you were 10 years old. Clinically, your disability is described as mild intellectual disability but, as I earlier indicated, this is, in laymen’s terms, a reasonably significant intellectual disability. You have been assessed as having an IQ below 70 – it is in the mid to low 60s – and you have deficits in adaptive functioning. I will come back to aspects of that.

Finite sentence

[30] I come to the sentence – a finite sentence. Sentences for serious sexual offending are to be determined, firstly, having regard to the relevant provisions of the

Sentencing Act and then the guideline for starting points provided by the Court of

Appeal in a case called R v AM.6

Crown submissions

[31] Mr Kayes, for the Crown, submits, by reference to AM, that your offending overall comes within what is called band 3 of that case. He submits that there are the following aggravating factors: premeditation, detention and violence, multiple complainants, particular vulnerability, breach of trust, the scale of the offending, harm caused and additional offending. This leads to a submission of an overall starting point for all of the offences of 15 to 16 years imprisonment.

[32] The Crown accepts that some reduction of the sentence is appropriate, or may be appropriate, because of your intellectual disability. Mr Kayes submits that this might be applied by reducing the starting point, on the basis that the disability could be seen as bearing on culpability, or by being brought in as a mitigating factor of a personal nature, but it cannot be brought in twice. I agree with the latter point. It is appropriately brought in as a mitigating factor in my judgment and there is reference

to this in the AM case.7

[33] In this context the Crown emphasises – or submits – that you have not shown any remorse and submits that the Crown’s description of your offending as predatory is accurate and supported by the opinion of one of the medical specialists, Dr Gardiner. I will come back to that in a moment.

Defence submissions

[34] Mr Holland, on your behalf, broadly accepts the aggravating factors outlined by the Crown, but argues that premeditation in meeting your victims online is diminished because of your sister’s assistance. Your sister may have assisted with the computer contact, but that in my judgment has nothing to do with the degree of

_{premeditation on your part in relation to the offences.}

6 _{R v AM [2012] NZCA 114, [2010] 2 NZLR 750.}

7 R v AM, above n 5, at [84].

[35] Mr Holland made a further submission that victim B’s level of intellectual functioning is similar to yours. And from this he appeared to submit that victim B perhaps was a less vulnerable victim. This, if I understand it correctly, is not a justifiable proposition.

[36] Mr Holland’s submission is that the starting point should be 12 to 13 years for the offending against victims B and C with an increase of one year to take account of the attack on victim A – that is to say, a total overall of 13 to 14 years imprisonment.

[37] Mr Holland submits that there should be a 25% reduction in your sentence to take into account your intellectual disability and the efforts you have made to rehabilitate yourself. The efforts at rehabilitation he refers to relate to the treatment at the Mason Clinic since you were compulsorily detained there in around November

2011.

[38] Mr Holland further submits that the lateness of your guilty pleas was due to your previous counsel’s need to obtain a professional assessment about your competence. Therefore, he submits you should receive a 20% reduction for your guilty pleas.

[39] Finally, Mr Holland, on your behalf, submits that a minimum period of imprisonment is not appropriate as your offending was caused in part by your intellectual disability and you are now receiving treatment. He submits that the fact that you can be detained as a care recipient means there is less risk to the public if you are granted early parole. I will discuss this aspect.

Discussion of determinate sentence

[40] Although the offences against B were in March and April 2007 and those against C were in January 2008, the offences were broadly similar in kind. For this reason it is convenient to discuss these offences as a group in fixing a starting point.

[41] The charge of assault with intent to sexually violate is different. It occurred 3 years earlier. And, although your offending was sexual in nature, it was different in

that you attacked a stranger, rather than a person you were in a relationship with. I will assess the starting point for that offence separately and add it to the sentences for the other offences as an uplift.

[42] There are the following aggravating factors of your offending against B and C, and in large measure against A as well. Some of the matters I am about to refer to do overlap to an extent and should not be, and will not be, double counted.

(a) Premeditation. You accessed your victims by seeking them out on a dating website. In saying that, and in regard to Mr Holland’s submission – and I must say, I am not in any way being critical of Mr Holland – there is no suggestion of course that your sister participated in any way in that regard. She was just trying to help you – to help her brother. You chose victims who would be more vulnerable to your attacks. What is more, your offending occurred as soon as you had B and then C in your control.

(b) There was serious violence. It is serious violence Mr Britz. You used a significant level of violence against the victims, beyond what is inherently involved in sexual offending of this nature. You restrained both victims with rope and caused significant injury.

(c) There was vulnerability. B was vulnerable because she has an intellectual disability. C was vulnerable because she was socially isolated. You had arranged for her to emigrate from Fiji and you were her sponsor for her visa application. Although you have an intellectual disability it is clear you were the dominant person and you used your relative strength to overcome resistance. There was considerable manipulation of B and of circumstances relating to B.

(d) Next, there was breach of trust. You were only able to offend against

B and C because you had gained their trust through the online dating website and then established a relationship.8

8 See the Court of Appeal’s comments in Watts v R [2012] NZCA 240 at [35].

(e) There is the scale of the offending. You offended against in fact three victims. You offended against B frequently in the short space of time before she was able to escape you. You acted with particular cruelty towards B, having callous disregard for the injuries and severe pain that she was clearly suffering from your repeated abuse.

(f) There is the degree of violation. This factor overlaps with serious violence and the scale of the offending – I recognise that. You acted so violently towards your victims that you caused them significant injury to the genital area. You continued to rape B despite those injuries.

[43] Your culpability is not diminished because you managed to convince B and C

to have a relationship with you.9

[44] I note that I have been referred by both counsel to some other cases and I have taken these into account. Given the length of this sentencing I do not propose to discuss them.10

Starting point for victims B and C

[45] Your offending against B and C, having regard to all of the offences, in my opinion clearly comes within band 3 of the Court of Appeal case. Sentences in band

3 are between 12 and 18 years imprisonment. The starting point for all of the offending against B and C should be 15 years imprisonment.

Sentence for offence against A

[46] I come to the sentence against A. There is no tariff case for assault with intent to sexually violate. The starting point must always be fact dependant.11 This offending is aggravated by your predatory planning or premeditation – you waited in

_{the women’s toilet for a victim and lured her out of a cubicle by turning off the}

9 _{R v AM, above n5, at [61].}

10 Cases cited by counsel, and one other case referred to (in addition to those referred to in R v AM) are: Burrell v R [2010] NZCA 426; R v Tonihi HC Christchurch CRI-201-009-17567, 6 July 2011; R v Ashby CA441/97, 17 February 1998.

11 Watts v R above n 8, at [29].

lights. There is planning in that and cunning. You were also very violent towards her. I presided at the trial. It seemed clear from the evidence that what saved A from sexual violation was the simple chance that she begged you to leave her alone in the name of Jesus and that had an effect on you.

[47] There is also Dr Gardiner’s assessment, noted in a moment, about what this offending indicates. And I agree with his assessment and, as I say, I will expand on that in a moment.

[48] Your offending with A is somewhat similar to the facts of a case called R v Silva.12 In that case the starting point was 4 years imprisonment. The facts of your offence are not quite as bad, in a relative sense, as in that case. If I was dealing with this offence by itself I consider the starting point would be 3 years imprisonment.

[49] This will need to be reduced to take account of your intellectual disability and totality and I will come back to that.

Increase or reduction for personal circumstances

[50] I now need to consider any increase or reduction having regard to your personal circumstances. There are no circumstances of a personal nature which require an increase in the starting points.

[51] Your intellectual disability does require some reduction in the sentence that would otherwise be imposed. The Sentencing Act requires it to be taken into account13 and I will refer to some cases in a footnote. 14 The broad range of reductions indicated by earlier cases suggest that it could be between 10% to 25-

30%. It is not easy to determine the extent to which this should be taken into account. I must say, Mr Britz, that when I listened to you and watched you giving evidence in your own defence I formed an impression that you had a reasonable

_{capacity to understand the implications of questions you were being asked and to}

12 _{R v Silva HC Auckland CRI-2003-004-38908, 24 May 2005.}

13 _{Sentencing Act 2002, s 9(2)(e).}

14 R v Goodlet [2011] NZCA 357, [2011] 3 NZLR 783 (mental disorder); E (CA689/2010) v R [2011] NZCA 13 (mental disorder); R v Chisnall HC Wanganui CRI-2005-083-806, 29 March 2006 (intellectual disability and personality disorders).

work out answers that would best suit you. That in turn indicated to me that you were, in effect, seeking to use the effects of the injuries you sustained as a boy in a calculated way and that you do have a reasonable understanding of your actions.

[52] In assessing the allowance to be made I have been assisted in particular by the recent and comprehensive report from Dr Gardiner. It is a report provided at the request of the National Intellectual Disability Care Agency, through Mr Wyatt, the compulsory care co-ordinator. It also draws together relevant opinions from earlier reports. The primary purpose of Dr Gardiner’s report is to assist me in determining the most appropriate type of sentence and, in particular, whether there should be specific orders for treatment related to your offending and disability. Dr Gardiner says, in broad terms, that there are two possible ways of assessing your offending. It may be that you misunderstand what is sexually appropriate because your injury meant your sexual education was poor and you mostly learnt about sex through pornographic material and occasional relationships. On the other hand – and I am stating this very broadly – he observes that the nature of your offending is premeditated and predatory with this perhaps highlighted by the offence against victim A. The offence against A – and I interpolate here to say that I am emphasising this offence because it has been set to one side to some considerable extent and it should not be. I am bound to say that it does appear to me that it has been, to a considerable extent, set to one side by Ms Visser – perhaps I misunderstand that. The difficulty has been that you say you have no memory of this. But the facts of what you did must be taken into account. The offence against A could have been much worse. It is also an important pointer in my judgment to the complexity of the causes of your behaviour because of the contrast with the other offending, amongst other things.

[53] As Dr Gardiner said, when the 2004 offence is considered with the later offences, it – and I quote – “paints more of a picture of a predatory, versatile and aggressive sexual offender”. Dr Gardiner is also satisfied that there are significant negative aspects of your personality and disposition that existed before the brain injury. I acknowledge that there may be issues about that and Mr Holland, quite properly, has drawn these to my attention. But I cannot ignore the opinion. In my

judgment there are also a number of indicators of your understanding that your actions are fundamentally bad and that they were at the time fundamentally bad.

[54] In my judgment the maximum that should be allowed in relation to the disability for a finite sentence is a reduction of 15%. The principal reason for a reduction is that the disability would be likely to mean that a prison sentence will adversely affect you more than a person without your disability and the disability does, to a limited extent, diminish your responsibility – criminal responsibility – for your offences.

[55] You are entitled to a further reduction for the guilty pleas for the offences against B and C. I acknowledge Mr Holland’s submission about delays for the purpose of medical assessments. However, taking that into account I do not consider that there should be a reduction of more than 15%.

[56] There were no previous convictions. But there is the 2004 offence and I do not consider there should be any further reduction in respect of the offences against B and C.

[57] The starting point of 15 years imprisonment is therefore to be reduced to 10 years 10 months for the offences against B and C – assuming my arithmetic is correct, and I will double check it.

[58] In relation to victim A the starting point is 3 years. This should also be reduced by 15% to take account of your disability. It would also be appropriate to allow at this point for the absence of previous offences by increasing this to 20%, or thereabouts. That results in a reduction to 29 months imprisonment. However, having regard to totality, because this sentence is to be added to the other sentence rather than imposed cumulatively, the end sentence should be further reduced to 18 months.

[59] This means that the overall sentence is 10 years 10 months plus 18 months, a total of 12 years 4 months. I am satisfied when assessing the totality, and looking at

all of this dreadful offending, that a finite sentence of 12 years and 4 months – fully allowing for your intellectual disability – is a proper and necessary sentence.

Minimum period of imprisonment: Sentencing Act 2002, s 86

[60] There is then a question of a minimum period of imprisonment. I have again been assisted by careful submissions on your behalf from Mr Holland. He submitted, firmly and with reasonable grounds, that there should be no minimum period. However, I am satisfied that with this sentence there should be a minimum period of imprisonment when considering all of the factors under s 86 of the Sentencing Act. A minimum period of imprisonment must not exceed two-thirds of the full term or 10 years imprisonment, whichever is less. I consider that a minimum period of imprisonment of close to two-thirds should apply in your case, and that is 8 years. I must say that I have taken into account all of the factors in s 86 and this includes, in particular, protection of the public. And in considering this I have weighed it, as I have indicated several times, against the competing consideration of your treatment, which is underway and with some progress.

Preventive detention

[61] I think it is appropriate to outline considerations relating to preventive detention notwithstanding the fact that I have decided, with hesitation, not to impose such a sentence.

[62] The Crown submitted that consideration should be given to a sentence of preventive detention. Mr Holland submitted, with care, that it was not appropriate. The essence of his submission is that the medical reports, and in particular the most recent report of Ms Visser, indicate that preventive detention is not necessary and the focus should be on treatment in respect of which, it is submitted, there has been good progress.

[63] You have been convicted of serious sexual offences – what are called qualifying sexual offences in s 87 of the Sentencing Act – and you were over 18 years of age at the time of the offences. Because of this preventive detention could

be imposed if I was satisfied that you are likely to commit another qualifying sexual offence or an offence of violence (as defined in the Act).

[64] In determining that question I must take into account five matters set out in the Sentencing Act:15

(a) Any pattern of serious offending disclosed by your history – and there is one.

(b) The seriousness of the harm to the community caused by your offending – and there is undoubtedly serious harm.

(c) Information indicating a tendency to commit serious offences in the future – and there are indications of that.

(d) If you have made efforts to address the causes of the offending – well you have through the compulsory detention and you are engaging in it.

(e) Finally, the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. As I have kept saying, I have had to grapple with that.

[65] Preventive detention has a protective, rather than a punitive, purpose.16 The risk of re-offending is central and there has to be a significant, ongoing risk of serious harm before somebody is incarcerated indefinitely.17 There is no particular standard proof; I am merely required to make up my mind on reasonable grounds.18

[66] On this question, as on numbers of the other questions, I have again been materially assisted by the medical reports. Some of the reports have been expressly directed to the question of preventive detention in terms of s 88 of the Sentencing

_{Act. There are the reports from Ms Visser, from Dr Goodwin, who is a consultant}

15 _{Sentencing Act, s 87(4).}

16 _{R v C [2003] 1 NZLR 30 at [5]-[6].}

17 _{R v Parahi [2005] 3 NZLR 356 (CA) at [85].}

18 R v White [1988] 1 NZLR 264 (CA) and R v Leitch [1998] 1 NZLR 420 (CA).

psychiatrist, and from Ms Bell Hunter, who is a clinical psychologist. However, some of the other medical reports also consider the question of risk – the likelihood of your committing a further qualifying sexual offence. And, again this includes the most recent report from Dr Gardiner. In referring to these other reports I acknowledge the fact that the report writers, such as Dr Gardiner, were not purporting to provide a report to the Court under s 88 of the Sentencing Act. But this does not mean that the very helpful advice cannot be taken into account.

[67] The assessment of risk differs to some extent. But all, save for Ms Visser’s most recent report, assess risk as moderate to high, including earlier reports from Ms Visser. This, if nothing else, highlights the difficult balancing exercise involved in this sentencing. The balancing judgment here in the end is selecting the most appropriate protective mechanism – preventive detention, or a finite term coupled with s 29 of the Intellectual Disability Act. In weighing this against the intellectual disability and the prospects of treatment – in assessing this matter – and standing the sentencing down to further assess it – I have been assisted by all of the submissions from both counsel and I have been further assisted by numbers of the cases referred

to me and in particular the decision of Miller J in Chisnall.19

Treatment options

[68] In relation to treatment options – which have been extensively canvassed –

there are three broad options:

(a) Ms Visser expressed the opinion that there be no prison sentence but that you be made a care recipient. With respect to Ms Visser I do consider that proposal is not realistic having regard to all of the matters I have to take into account and including what in a broad sense can be described as the necessary punitive elements of a sentence and, more particularly – and what I keep coming back to – protection of the public, and the impact of sentencing on you having

_{regard to all aspects of sentencing.}

19 R v Chisnall, above n 14.

(b) The second option is the possibility of what is called a hybrid sentence involving a prison sentence together with a Court order for treatment. This would be pursuant to s 34 of the Criminal Procedure Act. In my judgment this is not appropriate and it is not required because of the third option.

(c) The third option is a prison sentence without any further directions in relation to treatment but with appropriate treatment and rehabilitation still being available under the relevant mental health legislation and legislation governing imprisonment.

[69] These options are a primary focus of Dr Gardiner’s report. Dr Gardiner is firmly of the opinion that the third option is the best option in all of the circumstances and with an important consideration in that regard being his expectation that there would be a lengthy sentence of imprisonment. He was accurate in that expectation, as I have indicated. Completion of the current treatment will be possible under s 46 of the Mental Health (Compulsory Assessment and Treatment) Act. Further treatment will be possible for a period of around 2 years before parole or release date by utilising s 29 of the Intellectual Disability Act. Continued treatment under s 29 can also continue beyond release and subject to supervision of the Family Court. Having considered the different opinions I am satisfied that Dr Gardiner’s proposals are most appropriate in your case and, again, weighing all of the matters that the Court is bound to weigh. I have also taken these matters into account in deciding in the end not to impose preventive detention.

Formal sentence

[70] Mr Britz, you should now stand.

[71] For all of the offences you committed in 2007 and 2008, you are sentenced for each to a sentence of imprisonment for 12 years and 4 months. There will be a minimum period of imprisonment of 8 years.

[72] For the 2004 offence, you are sentenced to imprisonment for 2 years and 5 months. That sentence will be served concurrently. That means it is not added to the other sentences.

[73] That means that the total is 12 years and 4 months and a minimum of 8 years. I am sure that this will happen because you have already been carefully diagnosed, and there is an undoubted diagnosis of intellectual disability, and this is that steps will be taken towards the end of your anticipated release date under s 29 of the Intellectual Disability Act for further treatment before release and for ongoing monitoring, supervision and control to the extent necessary following release. For that purpose I am sure all of the relevant medical information, and indeed these sentencing notes, will be referred to the prison authorities and to the Parole Board and, to the extent that it is required, I make a direction that the relevant information is referred to the Corrections Department and to the Parole Board. However, I am sure that the medical experts will take all steps, with the assistance of Mr Wyatt, to make sure that these things are done and also to make sure that everything that can properly be done to protect the public at the same time that you are receiving treatment is done.

_{[74] You should now stand down.}

Woodhouse J