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Police v Paki [2017] NZHC 79 (3 February 2017)

Last Updated: 27 February 2017

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-088-3336 [2017] NZHC 79

NEW ZEALAND POLICE

v

_{HARE PAKI}

_{SENTENCING NOTES OF FITZGERALD J}

Solicitors: Crown Solicitor, Whangarei

Thode Utting & Company, Auckland

New Zealand Police v PAKI [2017] NZHC 79 [3 February 2017]

Introduction

[1] Mr Paki, you appear this morning for sentencing on a single charge of indecent assault, which has a maximum penalty of seven years’ imprisonment.¹ You were found guilty of that charge in March 2016, following a judge-alone trial in the District Court at Whangarei.² As you are aware, the Crown seeks an indeterminate sentence of preventive detention based on your risk of reoffending.³ As a result, the District Court declined jurisdiction, and hence you being sentenced before me in the High Court.

[2] I see that there has been some unfortunate delay in sentencing.

[3] Health assessors’ reports in respect of the application for preventive detention were received in the middle of last year, but both authors of those reports considered they had limited information on which to base their opinions. Further information was provided to them, and updated reports were received late last year and in the last week and I have read those. It seems that there may still be some outstanding information as the Crown has referred to today, particularly in respect of your historical sexual offending. However, I am satisfied that the authors have expressed their views to the extent necessary and appropriate for me to sentence you today; and I am also conscious that it is now almost one year since you were convicted.

[4] The crucial question I have had to consider, and which counsel have emphasised this morning, is whether you should be sentenced to preventive detention or to a finite period of imprisonment. Having considered all of the material before me, I have decided to sentence you to a finite period of imprisonment and not preventive detention.

[5] Mr Paki, you should be under no illusion that as a result of your offending for which I am now sentencing you, your history of sexual offending and your persistent breaches of extended supervision orders, you were on the cusp of receiving

_{preventive detention. I will say more about those matters later. However, you need}

¹ _{Crimes Act 1961, s 135.}

² _{R v Paki [2016] NZDC 5103.}

³ R v Paki [2016] NZDC 11585.

to understand that if you commit any further sexual offending in the future, be it against children or adults, a sentence of preventive detention will in all likelihood be considered again. I urge you to reflect on this, and in particular, in the context of your continued denial of all of your historical sexual offending.

[6] I now turn to outline the facts of the offending on which I am now sentencing you.

The offending

[7] You committed the indecent assault in October 2007. The victim only came forward and reported the offending in, I understand, 2015. She was your cousin’s partner, a 36-year-old female who had given birth to a daughter only a month before. She was staying at your partner’s house around this time. Her baby had recently been hospitalised and upon discharge, they had both returned to the house. You were present when they arrived.

[8] After putting her daughter to bed, the victim went to make herself a hot drink and asked also if you wanted one. You replied, saying, and I quote, “I want to fuck you”. Feeling uneasy, unsurprisingly, the victim retrieved her newborn daughter from the bedroom as a safeguard. She said that she thought by having the baby in her arms, it would protect her from you approaching her.

[9] Nevertheless, you then approached the victim, pushed her against the wall in the hallway, squeezing into her. You grabbed her free hand and forced it inside the unbuttoned overalls you were wearing. The back of her hand was against your penis. Counsel have confirmed this morning this was a skin on skin incident.

[10] Despite the victim’s hand being round the wrong way, you moved the victim’s hand up and down against your penis, which she felt harden as a result.

[11] The whole time, the victim was holding her baby daughter in her other hand and was unable to push you away. She tried to struggle against you, but could not free herself. The baby was crying, and the victim yelled at you to stop as you were squashing the baby.

[12] You eventually stopped and left the house.

The victim impact statement

[13] I have on file and have read the victim impact statement.

[14] As I noted earlier, the victim did not report the incident until many years later and this was after you visited her in the hospice. The victim was at that time terminally ill with cancer. She gave evidence at your trial (by way of an evidential video interview and then CCTV, given both the nature of the proceedings and her terminal illness). Sadly, she has since passed away. This makes the delay in sentencing all the more unfortunate, as I see from the file that she had wished to see this matter through to its conclusion.

[15] Going through the court process must have been a harrowing experience for the victim, as it is for any victim or witness, but particularly given the very poor state of her health at the time. She speaks to this in her victim impact statement which was prepared in April 2016, and which I have read. Overall, what you did clearly had a long-lasting effect on her. She describes how your actions made her feel dirty and upset. She said she dealt with the incident for many years by blocking it out. She felt unable to talk with others about what you did to her. Your actions also affected her ability to trust men in general. She said that you made her feel ugly.

Your personal circumstances

[16] I turn now, Mr Paki, to your personal circumstances. You are 61 years old. You are married and your wife is here to support you today. You have adult children from a previous marriage. Your medical record does show that you have a history of heart problems, asthma, diabetes and that you have had a stroke. You do walk with a walker. You have no mental health issues.

[17] You have 32 previous convictions, eight of which were entered after the date of this offending. There are a number of historical and more minor offences, such as traffic offences, theft of a motor vehicle and breach of periodic detention. But of

particular relevance to your sentencing today are the three prior instances in which you were sentenced for sexual offending against children (young girls):

(a) In 1993, you were sentenced to two years, seven months and 14 days’ imprisonment for unlawful sexual connection with a girl under 12, doing an indecent act on a female under 12, and two counts of indecent assault on a female under 12. I have not seen the sentencing notes for this offending, but a 2015 extended supervision order application on the file describes it as being against an 11-year-old female who was known to you but unrelated.

(b) In August 1999, you were sentenced to six months’ imprisonment for permitting an indecent act with a girl aged 12-16. Material relating to the 2015 application for an extended supervision order describes that you approached the 12-year-old victim, who was assisting you with work in your dairy, and asked her “do you want to do it?” You then grabbed her hand and made her rub your penis.

(c) In more serious offending, in October 1999, you were sentenced to six years’ imprisonment for a representative charge of unlawful sexual connection with a female under 12, cumulative with one-year imprisonment for indecently assaulting a female under 12. I have read the Judge’s sentencing notes for these charges. You pleaded guilty to those charges. The sentencing notes state that this offending occurred against a (step-) relative of yours, over a six-year period

while she was aged between 4 and 10 years old.⁴ You would touch

her breast and vaginal areas, generally over the top of her clothes, get her to touch your penis, and have her perform oral sex on you. You would force her to swallow after you ejaculated. While the Crown did not seek preventive detention at that time, at sentencing, Judge Rea did warn you that preventive detention would almost be inevitable if you were involved with any further sexual activity with a child.

[18] It appears from the file that you were released from prison in 2003 and you became subject to an extended supervision order in 2005 after the expiry of your parole conditions. That order was in place at the time of the offending for which I am now sentencing you. Between 2009 and 2014, you received seven convictions for breaching the extended supervision order’s conditions, for all of which you received sentences of imprisonment, ranging from one year to one year and eight months. I accept the Crown’s submissions that those are not insignificant sentences in and of themselves.

[19] I consider that your most serious breach, and the one that is the most worrying in the present circumstances, occurred in 2011. I have read the sentencing notes in respect of that breach. They record that you were involved in getting to know a young girl, who was aged six, and were hanging about in your car when she was on her way to school. You offered her sweets and chocolates and had her get

into your car.⁵ I note Mr Moroney’s submission that this was a young child that was

known to you at the time. Nevertheless, it was a clear breach of the orders. The young girl mentioned this to her father, which led to the charge of breaching of the extended supervision order. Many of your other breaches involve you being found in the company of children in circumstances contrary to the conditions of your ESO (though I note there were other adults present on a number of those occasions) or being present in locations which you are not permitted to visit.

[20] Also relevant to today’s sentencing is that in April 2016, you consented to a further extended supervision order, which will run until 2026. Pursuant to this order, I understand you are subject to 24-hour electronic monitoring.

[21] As to your attitudes towards your offending and remorse, you continue to deny your offending – both your historical offences and the index offence for which you are being sentenced today. This is concerning as it shows you are unable to take responsibility for your own actions. Such attitudes also unfortunately mean that you have been unable to participate in any programmes to address your offending.

Preventive detention

[22] I now turn to explain why I have decided not to impose a sentence of preventive detention. I have read and listened to the Crown’s and your counsel’s submissions today. As I said at the outset, by a narrow margin, I have decided not to impose a sentence of preventive detention. As will be evident, I do not consider home detention to be appropriate either.

[23] Preventive detention is not imposed for the purposes of deterrence, accountability or denunciation; rather, it is a sentence used to protect the community from offenders who pose a significant and ongoing risk to the safety of others.⁶

[24] I cannot sentence you to preventive detention unless I am satisfied you are likely to commit another “qualifying offence” on your release, such as an indecent assault or a sexual offence against a child, after you would be released at your sentence expiry date.⁷ The two other pre-conditions to sentence of preventive detention are not in contention: you were over 18 years of age at the time of the offending, and you have committed what is referred to as a “qualifying offence”.

Alongside my evaluation of the likelihood of you committing another qualifying offence, the Sentencing Act also requires me to take into account five particular factors, which I will discuss later.⁸

[25] In order to assist my assessment of a potential sentence of preventive detention, I have received and reviewed carefully the reports from Ms Sabine Visser and Dr Ian Goodwin.⁹ As noted, unfortunately, both assessors complained about the limited information provided to them in the preparation of their reports, and how this has somewhat hampered their assessment of your suitability for preventive detention. More information was provided to them, though I note not necessarily all information in respect of your 1993 and 1999 offending. Ms Visser’s report is not

altogether unfavourable to you Mr Paki, though I consider that that might not have been the case had more detail been available to her of your offending in the 1990s. I

_{also note that both health assessors were provided with the health assessor reports}

⁶ _{Section 87(1).}

⁷ _{Section 87(2).}

⁸ _{Section 87(4).}

⁹ Section 88(1)(b).

that were prepared in connection with the 2015 application for a further extended supervision order, which outlined the nature of that historical sexual offending.

A pattern of serious offending

[26] I now turn to the five mandatory factors I must take into account when considering a sentence of preventive detention. The first is whether your offending history discloses a pattern of serious offending. As I said earlier, you have multiple convictions from the 1990s for serious sexual offending against children. However, aside from the present index offending, you have received no convictions for sexual offending since that time, and I consider that your most serious offending ended after you were sentenced in October 1999. This may, however, be partly due to your lengthy time in prison in the interim; the strict conditions which have attached to the various extended supervision orders, which substantially reduce your opportunities to reoffend; and the more recent sentences of imprisonment which you have served following your breaches of the extended supervision order.

[27] That said, in 2011 the sentencing notes indicate you breached your extended supervision order by offering a six-year-old girl sweets and chocolates and having her get into your car. Although this may not be a serious offence in and of itself, it is more recent, and is therefore disturbing. It has weighed heavily on me as I believe it may have been preparatory to sexual offending. The sentencing Judge also took the same view. I am unable, however, to reach the same conclusions as regards your other breaches of the 2005 extended supervision order. Your intentions behind those seem to be more equivocal.

[28] Both health assessors also comment on the fact that your index offending was against an adult, rather than against children, as with your previous convictions. Ms Visser remarked that this change in pattern is “highly unusual”, and Dr Goodwin said it was a “significant deviation”. Although there is a change in the pattern, your index and historical offending are nevertheless indicative of deviant sexual activity.

[29] There is force in your counsel’s submission as to the historical nature of both

your index and prior offending. This indicates to me that, while a pattern of

offending does exist, such a pattern is not strong.¹⁰ In addition, while I consider there to be a pattern, the Crown accepts, as do I, that the index offending is not “serious”, as that term is understood in the context of the scale of offending. To put it another way, and to in no way minimise the effects of your offending on the victim, the index offending was not as serious as your prior sexual offending. The pattern of offending has therefore not progressed to more serious conduct.

[30] The Crown has properly referred me to the Court of Appeal’s recent decision in Carline v R, in which the appellant successfully appealed against a sentence of preventive detention.¹¹ It is submitted that Carline v R is distinguishable, in that in that case, while the index offending was also a charge of indecent assault and agreed to be at the lower end of the scale, the appellant’s offending history was also at the lower end of the scale and had not attracted a sentence greater than 12 months’ imprisonment. I accept that the offending history in Carline v R was also at the lower end of the scale, which cannot be said in this case. But in the present case,

there is, in my view, less of a pattern and significant lapses in your sexual offending. While accepting the fact that the index offending is not serious is no barrier to the sentence of preventive detention if all the pre-conditions are met,¹² I am conscious of the Court of Appeal’s observations that where the index offending is not serious, the disproportionality between that type of offending and the consequences of a sentence of preventive detention, which is the most serious of sentences, requires careful consideration.¹³

The seriousness of harm to the community caused by the offending

[31] The next factor I must consider is the seriousness of the harm to the community caused by your offending. Your counsel responsibly accepts that this factor applies in your case. It goes without saying that sexual offending causes serious harm to its victims and to the wider community, particularly in cases

_{involving children for which you have been previously convicted.}

¹⁰ _{See R v Parahi [2005] 3 NZLR 356 (CA).}

¹¹ _{Carline v R [2016] NZCA 451.}

¹² _{R v Burkett CA416/00, 21 February 2001 at [22].}

¹³ Carline v R, above n 11, at [17], citing R v Burkett, above n 12, at [21].

Information indicating a tendency to commit serious offences in the future

[32] The third factor I must consider is whether there is information indicating that you have a tendency to commit serious offending in the future. The Provision of Advice Report to the Court states that you have a high risk of reoffending, largely as a result of your continued unwillingness to address your offending needs. Ms Visser’s report assesses you as being at a moderate risk of committing serious offending in the future. Dr Goodwin’s assessment is that your risk is moderate to high. Both assessors applied a number of tests which led them to this conclusion. In light of these comprehensive assessments, particularly those performed by Ms Visser, I would assess your risk of reoffending as being at the upper end of moderate.

The absence of, or failure of, efforts to address the causes of the offending

[34] The fourth factor I must consider is the absence, or failure, of your efforts to address the causes of your reoffending. Although I understand you have attended some introductions to rehabilitative programmes relating to your offending, you have not completed any programme. This is largely because you continue to deny your offending, meaning that you have no motivation to address it. It also means that you generally do not meet the criteria to attend any treatment programmes. This makes any immediate prospect of your rehabilitation to be pessimistic.

[35] Ms Visser’s report also records that your personality style and feelings of persecution make it difficult for you to comply with orders. She is of the opinion, however, that you might engage in treatment and better compliance with your extended supervision order if there were some psychologically informed input from the Probation team around building relationships.

[36] Ms Visser also notes that your denial of offending is not, in itself a risk- enhancing factor for reoffending. I accept that as a general proposition, although your unwillingness to engage in rehabilitation as a result is, in my view, relevant to the overall risk assessment I must carry out.

The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[37] The fifth and final factor for me to consider is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[38] After you were convicted of this present offending, you became subject to a fresh, 10-year extended supervision order. In the normal run of things, that order would expire in 2026, however time will cease to run on it while you are in custody.¹⁴ On receiving a finite sentence today, the extended supervision order will reactivate on your statutory release date.¹⁵

[39] As I have said, Mr Paki, you are on the cusp of preventive detention. However the other factors I have considered today, and which have been emphasised by Mr Moroney, are not so strong to overcome the general presumption that a lengthy prison sentence should be preferred:

(a) I am particularly influenced by the historical nature of your offending, including the index offending. Although it is disturbing, your offending is diffuse. You have not committed a sexual offence for almost a decade. And that offending was at the lower end of the scale.

(b) I am also somewhat heartened by Ms Visser’s opinion that you may be amenable to rehabilitation if Probation is able to engage in a more psychologically informed relationship with you. Mr Paki, I urge you to engage in rehabilitation while you are in prison. If you show you are motivated to turn your life around and you do so, that may affect the nature of the ongoing extended supervision order conditions once you are released.

(c) Also relevant is the support you state you receive from your wife, adult children and church. Your wife is present today and has

¹⁴ _{Parole Act 2002, s 107P.}

¹⁵ Section 107P(2)(a).

confirmed her support to you. I consider these networks to be crucial to your rehabilitation and reintegration once you are released.

(d) Further, I am conscious that age does not invariably reduce a person’s risk of sexual offending,¹⁶ but such a reduction in risk is true as a “general proposition”.¹⁷ In your case, I consider that your age combined with your general ill-health will somewhat reduce your risk of reoffending after your release.¹⁸

(e) Lastly, again I note that an extended supervision order is already in place. While you have persistently breached a prior order, I am of the view that the presence of the order and its strict conditions are likely to have reduced the risk of your serious reoffending. After your release from a finite sentence of imprisonment, that order will remain in place until you are into your 70s. It will provide for continued monitoring and maintain a reduced risk that you will reoffend. A fresh order will also be available once that has expired.

[40] It is for these reasons that I have decided not to order a sentence of preventive detention today. I therefore now turn to what is the appropriate finite sentence of imprisonment.

Finite sentence

[41] The process I am required to follow is to begin with the calculation of a “starting point” that is based on the aggravating and mitigating factors of your offending and is consistent with other similar cases I have considered.

[42] I note that there is no guideline sentencing judgment for indecent assault, because such offending can occur in a variety of ways. The starting point tends to turn strongly on the facts of each case, and such offending is often sentenced

_{alongside other, more serious, charges.}

¹⁶ _{Hartley v R [2014] NZCA 162; Rubick v R [2016] NZCA 8.}

¹⁷ _{Kumar v R [2015] NZCA 460.}

¹⁸ R v Hall [2014] NZHC 3097.

[43] Having adopted a starting point I will then adjust this to reflect your personal circumstances. The result will be that your end sentence will be tailored in light of the principles in the Sentencing Act.¹⁹ It will denounce your actions, deter you and others from doing the same, protect the community, and hold you accountable for the harm you caused.²⁰ As much as possible, I hope that your sentence will also help you rehabilitate and reintegrate into society.²¹

Starting point

[44] Counsel are in broad agreement as to three aggravating factors evident in your offending:

(a) First, your victim was vulnerable.²² She had recently given birth to her daughter and she had been in hospital with her on the day of your offending. She was holding her baby daughter at the time you committed your assault. Not only did this limit her ability to resist your assault, it also put the baby at risk. It was only good fortune that the baby was not hurt during the offending.

(b) Second, your offending involved a breach of trust, although I accept your counsel’s written submission that this factor only applies to a limited extent.²³ The victim was staying as a guest in your house and you took advantage of that situation when you offended against her.

(c) Third, as we have heard, your offending caused lasting emotional harm to the victim.²⁴ She blamed herself for your actions and what you did seriously affected her confidence in her day-to-day life.

[45] The Crown has also submitted that your offending involved the additional aggravating factor of actual violence against the victim.²⁵ Given that you used force

¹⁹ _{Section 8.}

²⁰ _{Section 7(1)(a), (e), (g), (f).}

²¹ _{Section 7(1)(g).}

²² _{Section 9(1)(g).}

²³ _{Section 9(1)(f).}

²⁴ _{Section 9(1)(d).}

²⁵ Section 9(1)(a).

to trap the victim against a wall when you conducted your indecent assault, I accept that this aggravating factor applies. I acknowledge, however, that the degree of violence was low in the circumstances and there is no indication that you threatened the victim.

[46] Furthermore, I also consider that to sexually assault a mother whilst she is holding her new-born baby shows a particular degree of callousness or cruelty.²⁶

[47] Both counsel agree that there are no mitigating features to your offending. In light of these matters, the Crown has suggested that I adopt a starting point of around

18 months’ imprisonment. Your counsel, Mr Moroney, submits that a starting point of 12-15 months is more appropriate.

[48] The Crown has referred me to only a single case, and that was for illustrative purposes only.²⁷ I agree that the offending in that case is not comparable to the offending in yours. However, I have also considered a number of other cases of indecent assault, although they are of somewhat limited assistance, given the very different factual circumstances.²⁸ Nevertheless, taking those other cases into account, so that as far as possible there is consistency, and given the aggravating factors to your offending, I consider that the Crown’s suggested starting point of

18 months’ imprisonment is appropriate, if not slightly generous to you, and I adopt

it accordingly.

Personal circumstances

[49] Turning to your personal circumstances, counsel agree on two aggravating factors that warrant an increase from the starting point: you committed your offending while subject to an extended supervision order, and you have previous

_{convictions for sexual offending.}

²⁶ _{Section 9(1)(e).}

²⁷ _{R v Popeea [2015] NZHC 1882.}

²⁸ Carline v R, above n 11; Kitching v R HC Auckland CRI-2008-004-12022, 7 August 2009; R v Tanne [2008] NZCA 461; R v Nuntoon HC Auckland CRI-2007-090-8562, 15 September 2009; R v McCord [2013] NZHC 3261; R v Bailey CA102/03, 22 July 2003; R v King [2013] NZHC

3362; R v Palmer HC Hamilton CRI-2010-015-5901, 7 April 2011.

[50] In his earlier written submissions in the District Court, your counsel had suggested that an increase of six months is warranted for your previous sexual offending, and a further increase of three months is warranted to reflect the breach of your extended supervision order. The Crown submits today that something in that order, give or take a few months, may be appropriate. Mr Moroney’s suggestion would lead to a total uplift of nine months’ imprisonment.

[51] I consider that a substantial uplift is warranted, and more than proposed by your defence counsel.²⁹ I therefore uplift your starting point by 12 months to reflect your previous sexual offending, the fact you offended while subject to an extended supervision order, but also the heightened need for community protection in your case, given you are otherwise eligible for preventive detention.³⁰

Ill health

[52] Mr Moroney on your behalf submits that a discount to your sentence should be made based on your ill health. The law does permit a discount for such factors, not to recognise them in themselves but to take into account the fact that they are likely to make serving a sentence of imprisonment more difficult than would have been the case for a younger offender or a person who enjoys good health.

[53] Mr Moroney refers to the reports of Ms Visser and Dr Goodwin in respect of your health. As noted earlier, you suffer from some heart problems, asthma, diabetes and you have had a stroke. However, I note that neither report says anything further of substance about your health issues other than as I have outlined them. No other medical reports or evidence is before me to consider your current state of health, including in the context of a custodial sentence. Further, you have been remanded in custody since, I understand, July 2016, and there is no information available to me to suggest that there have been significant heath related issues for you as a result of you being in custody for this time. In all these circumstances and in the absence of any

_{other medical reports before me, I am unable to apply a discount for health issues.}

²⁹ See R v McCord, above n 29; R v Kitching, above n 29; Carline v R, above n 11 at [23]; R v

_{Stevens [2016] NZHC 1574 at [32]; R v Palmer, above n 29.}

³⁰ See R v Leitch [1998] 1 NZLR 420 (CA) at 430, aff’d in D (CA197/2014) v R [2014] NZCA 373 at [19]- [21]. See also Carline v R, above n 11, at [23]; R v L [2014] NZHC 2471 at [32]; R v Bailey, above n 29, at [21].

[54] Accordingly, there are no personal mitigating factors in your case, and you did not plead guilty to your offending. This therefore brings your end sentence to

30 months’ imprisonment, or two years and six months.

[55] Your release conditions will be set by the Parole Board.

Sentencing

[56] Mr Paki, please stand. On the charge of indecent assault, I sentence you to two years and six months’ imprisonment and as I stated your conditions for release will be set by the Parole Board.

_{[57] You may stand down now.}

Fitzgerald J