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R v Ranga [2014] NZHC 2583 (21 October 2014)

Last Updated: 10 November 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-075-000482 [2014] NZHC 2583

THE QUEEN

v

_{LEONARD JOHN RANGA}

_{SENTENCING NOTES OF WOOLFORD J}

Solicitors: Almao Douch, Barristers and Solicitors, PO Box 19173, Hamilton

Gavin Boot Law, PO Box 19043, Hamilton.

R v LEONARD JOHN RANGA [2014] NZHC 2583 [21 October 2014]

Introduction

[1] Mr Leonard John Ranga, you appear for sentence on one charge of doing an indecent act on a child under 12 pursuant to s 132(3) of the Crimes Act 1961. On

20 June 2014 you were found guilty by jury verdict following a two day trial heard in front of Judge Ruth in the Hamilton District Court. The maximum penalty for that offence is ten years imprisonment.

[2] You were initially to be sentenced in the District Court. The Crown noted that you were eligible for preventive detention and on 8 September 2014 Judge Ruth accordingly declined jurisdiction to pass sentence and transferred your case to this Court so that a sentence of preventive detention could be considered.¹

Background

[3] Mr Ranga, in the early hours of 31 March 2013 you arrived back at your accommodation in Thames after drinking heavily at a local hotel. You were paying board to stay at this address. The occupant’s six year old grandson, the victim in this matter, was staying for the weekend, and so too was your relative, the relative’s partner, and their 12 year old daughter. The latter three slept in your normal bedroom, meaning you had moved into a different room for the weekend. While you were out drinking the victim went into this room and went to bed.

[4] Once you returned to the address you climbed into the bed with the sleeping child. You kissed the victim on the cheek, put your hand inside his jeans and touched his genitals. The victim woke up. You said you thought the boy was your relative’s 12 year old daughter. You asked the victim whether he wanted you to stop touching him. He said yes, but you continued to touch his genitals.

[5] The victim began to cry and climbed out of bed. His crying was heard by his grandfather who came to investigate and found you inside the bedroom with the victim. When interviewed by the Police soon after the offending you said you did not know if the incident happened or not and that you were too drunk to remember

_{what happened that night.}

¹ Criminal Procedure Act 2011, s 114(2).

Victim impact statement

[6] There is a victim impact statement from the victim’s mother. She states that since the offending the boy has developed a fear of sleeping on his own and has become easily anxious and nervous, especially at night. Both the son and his mother have lost trust and an innocence has been lost. It is said the victim is making steady, but slow process, which was hampered to a degree by the trial process.

Previous conviction history

[7] As to your previous offending, you have 10 previous convictions dating back to 2003 when you were 46 years old. Two of those are for drunk driving. There are four convictions for indecently assaulting a female over 16 in 2006, one conviction for doing an indecent act in 2006, and one conviction for doing an indecent act upon a girl under 12 in 2007. Since that time you have not committed any other relevant offences.

[8] The 2006 and 2007 offending can be briefly described. The 2006 offending involved sexual conduct against a 16 year old girl. Alone together you asked her whether you could touch her breasts. She said no. One month later you went into her room and felt her vaginal area, sucked her breasts and masturbated in her presence. After each occasion you would tell her not to tell anyone and give her money. This offending occurred five or six times in mid-2006. Sometime during this period you accrued the additional conviction of doing an indecent act. The facts of this offending are unclear, but it appears that you either urinated outside or masturbated in front of the 16 year old girl.

[9] The 2007 offending is similar to the present offending. You were at a party and went inside the house to sleep. The victim, an 11 year old girl, awoke to find you touching her between the legs over clothing and feeling her breasts over clothing. These actions only lasted a few seconds before you were pushed away.

Pre-sentence report

[10] A pre-sentence report was prepared for your sentencing at the Hamilton District Court. It records that you are now 57 years old. You are from the Coromandel originally, but have spent much of your life in Whanganui. You were married for a lengthy time until your divorce in the late 1990s. There are two children from your marriage. You are a qualified drainlayer and have spent much of your life in full employment. Past records indicate you are a reliable and valued employee.

[11] You acknowledged to the report writer that you are something of a binge drinker and have a problem with alcohol. The writer considered it a relevant factor in your offending, although the primary contributing factor was assessed as your aberrant sexual desires. The writer refers to your limited offending history, your previous compliance with imposed sanctions and bail conditions and assesses your risk of reoffending as being low. You were also assessed as being motivated to address your alcohol abuse. The writer recommended a short term of imprisonment.

Preventive detention

[12] The approach I will take in sentencing you today is to first consider what finite sentence would be appropriate for your offending, and then have regard to whether a sentence of preventive detention should be imposed instead. In doing so I will have regard to the two health assessor reports prepared for that purpose. I will also have regard to the purposes and principles of the Sentencing Act 2002. Those especially relevant today include the need to protect the community from this type of offending, to denounce and to deter it, and the need to provide for your rehabilitation to ensure your successful reintegration into the community when your sentence comes to an end.

The finite sentence

[13] I have received submissions from the Crown and defence counsel as to the appropriate finite sentence. The relevant factors in assessing culpability are

helpfully summarised in R v Paki.² Counsel are in agreement that the appropriate starting point for this type of offending is 15 to 18 months imprisonment, having regard to the applicable case law.

[14] Mr Boot submits that this is not the most grave offending of this type, having regard to comparable cases brought under s 132(3) of the Crimes Act. It was a relatively brief and one-off encounter. I accept that submission subject to the due weight that needs to be afforded to the victim impact statement and the distress and anxiety caused to the victim by the attack. It was also serious insofar as it involved the actual touching of the genitals of a vulnerable and sleeping child. The child’s youth is also an aggravating factor. The culpability is increased given you thought it was a different child, but proceeded to touch the young boy when you realised your mistake and despite his calls for you to stop. The offending involved an abuse of trust. Although it was not specifically premeditated, you got into bed with this child and put yourself in a high-risk situation.

[15] Having regard to these factors and the case law cited, I consider the appropriate starting point to be 18 months imprisonment. An uplift of six months imprisonment is necessary to reflect your previous relevant convictions, particularly the 2007 offending. No other aggravating or mitigating factors apply. Accordingly, the finite sentence I would impose is two years imprisonment.

Risk assessment

[16] I turn to the risk assessment for determining whether or not to impose preventive detention instead. The purpose of a sentence of preventive detention is to protect the community from those who pose a significant and ongoing risk.³ To

impose it there must be a significant and ongoing risk of serious harm.⁴

[17] The mandatory factors to consider are those set out in s 87(4) of the

Sentencing Act 2002. Other factors evident from the case law that provide assistance to the present case include: the existence of any persistent, knowing

² _{R v Paki [2012] NZHC 3494 at [30].}

³ _{Sentencing Act 2002, s 87(1).}

⁴ R v Parahi [2005] 3 NZLR 356, (2005) 21 CRNZ 754 (CA) at [85].

behaviour; the length of the finite term to be imposed; whether the offender was on notice of the possibility of a sentence of preventive detention; whether the offender has had a chance to engage in therapy, or has had a lengthy final sentence as a final warning and chance to address underlying problems; and the possibility of an extended supervision order at the conclusion of the finite sentence.⁵

[18] I must also have regard to the two health assessor reports. The first is from Dr David Brunskill, a consultant forensic psychiatrist working at Health Waikato. He reports that you do not present with any signs or symptoms of mental illness, but suffer from a long standing and problematic binge pattern use of alcohol, and that alcohol abuse was a feature of two of three of the sexual offences for which you have been convicted. The writer considers there to be no overt, disclosed or acknowledged proof of you having paedophile tendencies beyond that evidenced by your offending. The writer recommends you are referred to a sex offender treatment programme and other rehabilitation to target your problematic alcohol abuse. You were assessed as being open minded in accepting specialised treatment to target your sexual offending. It appears to me that Dr Brunskill recommends a finite sentence of imprisonment.

[19] The second is by Dr Sharlene Murdoch, a registered clinical psychologist. She considers you fall within the moderate-high risk category for further sexual offending within five years of release, and moderate-low category for general offending. Research has found that 12 per cent of all sexual offenders rated in the moderate-high risk category of ASRS (an actuarial screening instrument based on static factors) are convicted of a further sexual offence within five years, and at a rate of 30 per cent over 10 years. You were further found to be in the moderate risk group on the STABLE-2007 test, which measures dynamic risk of sexual reoffending.

[20] Dr Murdoch considered that any further sexual offending if it occurs would likely be opportunistic, against a child, and take place in the context of family/group gatherings or in the context of an intimate relationship where children are accessible.

_{The risk of such offending is likely critically elevated by the use of alcohol. She}

⁵ R v Parahi, above n 4; R v Bailey CA102/03, 22 July 2003; R v Tepania [2014] NZHC 2230.

notes that you are in an age group where observed rates of offending are lower, but assessed that fact as insufficient to abate your risk because your offending began and has continued in your middle age.

[21] She notes that any sentence received would need to be of sufficient duration for you to complete the recommended programmes, ideally the Kia Marama programme or that provided by the Te Piriti Special Treatment Unit, as well as a drug treatment unit.

Submissions

[22] I turn now to the submissions of counsel. The Crown has helpfully referred to a number of cases that I will include in my sentencing notes.⁶ I do not propose to discuss them in detail. The submission for the Crown is that the proposed finite sentence is insufficient time for you to undergo the appropriate treatment necessary to alleviate your risk of reoffending in a similar serious way in the future. The decision of this Court in R v Paki is relied upon. In that case Wylie J considered a finite sentence of two years and nine months imprisonment was insufficient to protect the public and for the defendant to complete all the recommended

programmes. Preventive detention was imposed.

[23] Mr Boot for the defence rightly points out that there are some significant differences between your case and Paki. The offender in Paki had failed to complete treatment in the past. The index offending occurred whilst he was subject to an extended supervision order. The offending in that case was more serious, attracting a starting point of two years imprisonment, and came on top of an extensive criminal record. He was considered to be at high risk of reoffending in the future.

[24] Mr Boot’s general submission is that your case is not appropriate for preventive detention. Your offending is not the most serious, and was a relatively brief encounter. You have not had treatment targeted at the sexual offending. Your previous offending occurred some years ago in 2006 and 2007. The 2007 offending

_{is quite similar to the present, but only occurred for a matter of seconds. The 2006}

⁶ R v Paki, above n 2, R v Tahuriorangi HC Hamilton CRI-2010-019-6286, 22 August 2011, R v

Parahi, above n 4, R v Leitch [1998] 1 NZLR 420, 429.

offending was over a period of many months, but involved a different type of offending.

[25] Mr Boot also submits that a significant factor in your offending is the abuse of alcohol. This is something that can be addressed by appropriate treatment during a finite sentence of imprisonment. It is also noted that there has been no prior warning about the prospect of preventive detention, and in any event there is a possibility of an extended supervision order that would mitigate the risk of reoffending.

Discussion

[26] Having regard to the mandatory and relevant factors, I consider that preventive detention is not the most appropriate outcome in this case. Although you have a history of offending in this manner, I do not consider it sufficient to justify an indeterminate period of imprisonment. The health assessor reports suggest to me that there is no firm information suggesting a strong likelihood of committing serious offences in the future of such a magnitude that a sentence of preventive detention is called for. Your criminal conviction record is relatively short and it is not possible to find any discernible trends in your offending except that it is opportunistic in nature and typically involves the abuse of alcohol. Notable in my mind is the seven year gap between your last offending and the present offending.

[27] Although the health assessor reports suggest to me that there is no firm information suggesting a strong likelihood of committing serious offences in the future of such a magnitude that a sentence of preventive detention is called for, I am concerned by your alcohol abuse and I consider it to be a significant factor increasing your risk of offending in the future. Alongside opportunity, it is the primary driver in your offending and is something that can be addressed by targeted treatment and counselling undertaken within a finite sentence of imprisonment or subsequent to such a sentence. If that treatment is willingly undertaken it would go a long way to decrease your risk.

[28] I am also swayed by the fact that you have not been invited in the past to engage in any treatment directed towards your sexual offending. Although you have

not asked for help, and claim not to remember the offending, as Dr Brunskill notes, you do not appear to be in frank denial about your offending and you do present yourself as willing to engage in specialised treatment.

[29] Preventive detention is not a sentence of last resort. I am, however, of the view that it would be premature and disproportionate to sentence you to preventive detention at this stage, given your short criminal record, the low level of the index offence and the lack of any previous treatment. Although not a prerequisite, I also consider it relevant that you have not been warned of the possibility of preventive detention until the Crown made its application. A finite sentence of two years imprisonment is not short and is sufficient to provide adequate protection for society if during the sentence or, subsequent to it, you engage in and complete the sexual offending and alcohol abuse treatment programmes available to you. I consider that you should be given a chance to engage in this type of therapy before a sentence of preventive detention is imposed.

[30] Although I do not make an order as such, I ask that you be referred as a candidate for a sex offender treatment programme and drug and alcohol counselling. I ask that you be placed in these programmes as soon as circumstances reasonably permit if there is sufficient time for you to adequately engage in them during your term of imprisonment. If, however, you are unable to be placed in such programmes during your term of imprisonment, I recommend that the Chief Executive of the Department of Corrections consider making an application for an extended supervision order, which could then be put in place upon your release. An extended supervision order, in my view, would contain a number of important protections for the community after your release. It can indeed include something akin to home detention for the first 12 months of such an order. In any event, I will impose special conditions, in particular, those recommended in the pre-sentence report, which was provided to the Court in respect of your offending in 2007.

Result

[31] Mr Ranga, please stand. For those reasons the application for preventive detention is dismissed. I sentence you a term of two years imprisonment on the following special post-release conditions:

(a) To reside at an address approved by a Probation Officer and not to move without the prior written consent of a Probation Officer.

(b) Not to associate with any person under the age of 16 years without the prior written consent of a Probation Officer.

(c) To undertake employment as approved by a Probation Officer.

(d) To be assessed for the SAFE programme and if suitable attend the SAFE programme to the satisfaction of the Probation Officer and service provider.

(e) To undertake any such assessment, counselling, treatment or programme designed to address offending behaviour and reduce the risk of reoffending to the satisfaction of the Probation Officer and service provider; and

(f) To undertake any other such assessment, counselling, treatment or programme designed to meet your alcohol abuse problems.

[32] I direct that the special conditions apply for a period of six months post the sentence expiry date. You may stand down.

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

Woolford J