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R v ATW [2023] NZHC 3661 (13 December 2023)

Last Updated: 24 January 2024

SENTENCING NOTES OF MUIR J

Solicitors: Kayes Fletcher Walker, Auckland

R v ATW [2023] NZHC 3661 [13 December 2023]

Introduction

• [1] ATW,¹ you appear today for resentencing having pleaded guilty to nine charges relating to various acts of sexual offending against your stepdaughter over four years between 2007 and 2011. The abuse began when she was seven years old and continued until she was eleven.

• [2] The charges comprise:

(a) attempted sexual connection with a child (representative);²

(b) assault on a child;³ and

(c) six counts of doing an indecent act on a child, plus a further representative count.⁴

• [3] I originally sentenced you in respect of these charges on 1 August 2018.⁵ At that time and after what I described as a “most difficult sentencing exercise”,⁶ I imposed a sentence of preventive detention in respect of each of the charges of indecent act on a child and the charge of attempted sexual connection with a child, such sentences to be served concurrently and with a minimum period of imprisonment of five years.⁷ On the charge of assault, I sentenced you to two months’ imprisonment to be served concurrently.⁸

• [4] In 2022, you brought an appeal to the Court of Appeal from my sentence. You did so on the basis of further evidence for which an application to adduce fresh evidence was granted.

¹ I have anonymised the defendant’s name to protect the identity of the complainant.

² Crimes Act 1961: s 132(2): maximum penalty of 10 years’ imprisonment.

³ Crimes Act, s 194(a): maximum penalty of two years’ imprisonment.

⁴ Crimes Act, s 132(3): maximum penalty of 10 years’ imprisonment.

⁵ R v T [2018] NZHC 1945 [Sentencing notes].

⁶ At [56].

⁷ At [63].

⁸ At [64].

• [5] On 25 March 2022, the Court of Appeal set aside the sentence of preventive detention and remitted the matter to the High Court for resentencing in light of the fresh expert evidence it had received.⁹ It remanded you in custody pending resentencing and set a nominal date of 5 April 2022 for that purpose.¹⁰

• [6] That date was subsequently adjusted by the High Court to 13 April 2022, at which time it was agreed by counsel that I should preside at the resentencing. At the time I was on a period of extended leave so the matter was placed in a further callover for 11 May 2022. On that date the matter was listed for a telephone conference before me on 6 July 2022, after my return from leave. That date was subsequently adjusted to 20 July 2022.

• [7] At the telephone conference on 20 July 2022, your counsel, Mr Ewen, noted that you remained fully committed to induction into the Te Piriti programme, acknowledging that if resentenced before the conclusion of such programme, a greater finite term might be imposed than would otherwise be imposed to facilitate completion of the programme as a sentenced prisoner. He pointed out that a likely induction date would be in November 2022.

• [8] In my minute recording the outcome of the conference, I noted that it was highly like that if, at the time of resentencing, you had already been inducted into the Te Piriti programme, resentencing would either be adjourned until completion of the programme or an extended finite sentence would be imposed on the approach adopted in R v MacShane,¹¹ another quite similar case. I recorded your intention to cooperate with either of those outcomes and by agreement with the parties, set 14 December 2022 as a provisional resentencing date with counsel to file memoranda one week in advance, advising how they wished to proceed.

• [9] On 9 December 2022, I minuted the parties following receipt of their memoranda. I noted that you had been inducted into the Te Piriti programme in November 2022 and that the expected duration of the course was one year. I noted

⁹ T (CA502/2018) v R [2022] NZCA 83 [Court of Appeal decision].

¹⁰ At [47].

¹¹ R v MacShane HC Auckland CRI-2010-004-5197, 20 July 2010.

also the Crown’s advice that you had “commendably” agreed to remain in custody until completion of the course and that there appeared to be a high likelihood that a further sentence of preventive detention would not be sought by the Crown and that you would be sentenced to a fixed term of imprisonment corresponding broadly with conclusion of the Te Piriti course.

• [10] I noted my powers under s 25(1) of the Sentencing Act 2002 to adjourn sentencing to enable participation in rehabilitation programmes and Court assessment of offender response, and concluded that an adjournment to 28 July 2023 would allow me to obtain the most current and useful information in assessing sentencing options.

• [11] On 6 July 2023, Mr Ewen filed a further memorandum pointing out that you would not complete your Te Piriti course until November 2023. He noted that:

Even though it may lead to a remand in detention that will subsume the eventual sentence, [ATW] has instructed me to take a pragmatic approach to sentence. He is content to remain as a remand prisoner until the completion of the programme.

• [12] Accordingly, Mr Ewen sought an adjournment of sentencing until mid- December 2023 to allow for completion of the Te Piriti programme. In my minute of 10 July 2023, I recorded that the proposed approach seemed pragmatic, sensible and most likely conducive to the outcome intended at resentencing by Mr Ewen. I advised that a new sentencing date would be fixed sometime in December 2023 and convened a telephone conference for 15 November 2023 to review progress.

• [13] On 15 November 2023, I was advised that you had completed the Te Piriti course. I called for an updated pre-sentence report and noted counsel’s intention to discuss resentencing options with a view to potential agreement in terms of a sentence which might be brought before the Court.

• [14] Having set out this somewhat protracted history, I am now required to resentence you. In doing so, I note at the outset that the Crown no longer seeks a sentence of preventive detention. It says that I should impose a finite sentence, somewhat longer than the nominal finite sentence identified in my former sentencing

notes and coinciding broadly with completion of the Te Piriti programme and your associated resentencing.

Background

• [15] This is recorded in my former sentencing notes and repeated for convenience at this stage.

• [16] The victim is your step-daughter. The offending concerns multiple indecent acts that took place between 26 September 2007 and 31 December 2011, when the victim was aged between seven and 11 years. It involved, at various times during that four year period, and I summarise the position: rubbing and kissing her over her body; placing her hands on your penis and sliding her hand up and down on it; taking her clothes off and trying, unsuccessfully, to insert your penis into her vagina (more than one occasion); biting her bare nipples; and what might colloquially be described as “dry humping” her while you were clothed and with the victim made to lie on top of you.

• [17] On the occasion of each of these alleged offences you thought the victim’s mother was out of the house and you repeatedly told the victim not to tell her mother. However, on the occasion of the last of the offences previously described, the victim’s mother unexpectedly entered the room where the offending was occurring and witnessed what was going on. You told the victim’s mother that you would never do such a thing again and, for the next approximately five years in which you remained part of the victim’s life, there was no recurrence of offending. That is a very important consideration in resentencing you today. In 2017 the offending was reported and you were arrested. You have been in custody since.

• [18] The final representative charge of doing an indecent act on a child relates to kissing the victim on the lips on numerous occasions while her mother was not in the house.

• [19] The assault charge relates to an incident when you kicked the victim in the buttocks.

Personal circumstances

• [20] In my former sentencing notes, I discussed your personal circumstances, including very useful advice which I received from Ms Khylee Quince, a respected academic with special focus on Māori engagement and justice.¹² I adopt my earlier discussion, noting that you are now 52 years old.

Pre-sentence report

• [21] The Department of Corrections’ pre-sentence report was provided to the Court on 7 December 2023.

• [22] Despite the high level of contrition expressed by you when previously sentenced, your cooperation (indeed, enthusiasm) around induction into the Te Piriti programme and your agreement to remain on remand pending completion of the programme, the report is not entirely positive.

• [23] In particular, it advises that although you engaged well with the writer in discussing the Te Piriti programme:

... when discussion moved to his release plans, and whether he anticipated there may be contact (either direct or indirect) with victims, which includes his own children whom he said he had subjected to repeated physical violence, or had witnessed physical violence against their mother, [ATW’s] appearance of obliging cooperation diminished and was replaced by a perceived hostile, intimidatory victim stance.

• [24] You are reported as having “firmly declined” to discuss the offending for which you are to be resentenced, stating only that you “owned it” and “accepted responsibility for what [you] had done years ago”.

• [25] Significantly however, from my perspective, the report writer noted:

With regard to rehabilitation [ATW] has again completed the child sexual offender treatment programme at Te Piriti (graduated in September 2023), and a three-month drug engagement programme before that. An assessment of his level of engagement with the programme from the therapists who have treated him was not available at the time of writing this report.

¹² Sentencing notes, above n 5, at [10]–[15].

• [26] That is an important qualification on what the pre-sentence report writer had to say and, clearly, I was going to be very significantly influenced by any report that I received from the therapists with which you had engaged.

• [27] The pre-sentence report went on to say that applying Department of Corrections Risk Assessment Tools, a moderate likelihood of further offending was identified, acknowledging however that this was more likely to be “general violence rather than sexual violence”.

• [28] The report concluded with the observation that:

[ATW’s] unwillingness to engage helpfully when interviewed for this report came as somewhat of a surprise given the rehabilitation interventions that he has completed to moderate and change concerning behaviours and thinking.

• [29] Because of the content of the report, I called for further information and indicated to counsel that you should be given the opportunity to address the report either by way of additional evidence or questions to the report writer.

• [30] I have now received a psychological report dated 5 December 2023 from registered psychologist, Mr Lloyd Symes, and registered clinical psychologist, Ms Maeva Grzes. Annexed to it is a seven-page safety plan completed by you. It is lucid, frank and insightful.

• [31] Both Mr Symes and Ms Grzes bring detailed knowledge of the progress made by you on the Te Piriti programme. They describe your treatment pathway as one with “a high level of intensity”, having regard to your level of risk and need. They report development of insight by you in terms of offending triggers, anger management, former hostility to women and the part played by substance abuse in terms of your past offending. They recognise behavioural change in terms of regulation of emotions and note the considerable support you are receiving from your whānau and particularly your brothers towards successful rehabilitation.

• [32] The report concludes:

22. [ATW] has completed modules on stress tolerance, understanding the offence process, interpersonal learning, sexual self management, self

regulation, and relationships modules. In the opinion of the author, [ATW’s] completion of the core treatment programme has addressed his sexual offending needs. [ATW] accepted responsibility for his behaviour and is aware that he will need to constantly be aware of his risk factors in order not to re-offend.

• [33] No further treatment was recommended at this stage noting, however, the importance, if released into the community, of you remaining in close contact with your whānau network to ensure that you have “effective wrap-around support”.

• [34] This report provides me with a significant level of reassurance about your progress since last sentenced and in large part addresses the concerns I had arising out of the pre-sentence report. It is possible, having regard to what Mr Symes and Ms Grzes say, that the fact the pre-sentence report writer was female did not assist in your open engagement with her. They say that at the start of treatment you engaged better with male therapists than female, although noting that by the end of the course you “interacted respectfully and more appropriately with the female therapist”. There may yet be more work to do by you in this regard, noting your own admission to Mr Symes and Ms Grzes that your former gang lifestyle had led you to see women as inferior. Take it from me, there is simply no room for such thinking in 21st century Aotearoa New Zealand.

The re-sentencing

The Crown position

• [35] As indicated, the Crown now seeks a finite sentence as opposed to preventive detention. Crown counsel, Mr Kefu, says that although in my former sentencing notes I identified a provisional finite sentence of four years seven months, the sentence I now impose should be six years, four months and two weeks, constructed on the following basis:

(a) a starting point of 91 months and two weeks’ imprisonment (seven years seven months and two weeks);

(b) an uplift of 12 months for previous convictions;

(c) a discount of four months for remorse; and

(d) a discount of 23 months for guilty pleas.

• [36] Mr Kefu also notes your compulsory registration on the Child Sex Offender Register. Predictably, he acknowledges that the time spent by you in custody will be counted towards any finite sentence of imprisonment I impose.

• [37] This is essentially the same position advanced by the Crown in its resentencing memorandum, dated 9 December 2022. As previously indicated, the resentencing originally scheduled to occur at that time was adjourned by agreement to a date corresponding with the anticipated completion of the Te Piriti course.

• [38] I note also that the uplifts and discounts proposed by the Crown correspond with those identified in my former sentencing notes (with allowance for the fact that the 25 per cent deduction for guilty plea is applied to a higher starting point).

Defence position

• [39] Mr Ewen agrees that a finite sentence is appropriate. He suggests that what the Court is in reality being asked to do is to extend the finite sentence for a period which would allow imposition of an extended supervision order.¹³ He notes, however, that this is a course in which you “acquiesce”, despite some misgivings on his own part, because you “recognise the benefits of having ongoing supports in place”.

Discussion

• [40] I am, having regard to all the evidence now available, satisfied that you are appropriately sentenced to a finite term of imprisonment. Overall, your response to the Te Piriti programme is assessed as entirely satisfactory and I note that although the pre-sentence report writer identified a moderate risk of further offending, even she did not consider this applied to sexual offending at this time.

¹³ Noting that (i) under s 107F of the Parole Act 2002, an extended supervision order can only be applied for in your case before the latter of sentence expiry date and the date you cease to be subject to release conditions; and (ii) standard release conditions expire six months after statutory release date.

• [41] I take into account also:

(a) that in respect of my finite sentence, standard release conditions will apply as a matter of law under s 18(2)(a) of the Parole Act 2002 for a period of six months from your statutory release date; and

(b) that the Department of Corrections may apply to the Parole Board under s 18(2)(b) to impose special conditions for the same period.

• [42] I note also the Crown’s advice that Corrections may, at the point release conditions are in place, make application to the Court under ss 107F(1)(a) and 107FA(1)(a) of the Act for an extended supervision order, and before that application is determined, an interim supervision order. It was the prospect of such additional protections post-release which made your original sentencing before me such a very difficult and effectively line-ball exercise. The same considerations were clearly foremost in the Court of Appeal’s mind when it came to assess the fresh evidence before it.

• [43] I turn then to the duration of the finite sentence I am to impose. I note at the outset that the provisional sentence of four years and seven months’ imprisonment referred to in my former sentencing notes was one identified in the context of an extended sentencing analysis which concluded with the imposition of preventive detention. As such, it was a “nominal” sentence. I do not consider myself bound by that indication in the context of a fresh sentencing where preventive detention is neither sought by the Crown nor being imposed on my own motion.

• [44] In R v Leitch,¹⁴ the Court of Appeal held that a finite sentence imposed in lieu of preventive detention can be increased if required to protect the community. It said:

... where the sentencing Court considers that a finite sentence arrived at in accordance with normal principles would not be adequate for the protection of the public, it is permissible to consider a finite term which would be less severe in its effect on the offender than preventive detention but which at the same time would be of greater severity than a sentence related only to the usual balancing of the desirability of prevention against the gravity of the offending. In short, there is some room for public protection purposes to go

¹⁴ R v Leitch [1998] 1 NZLR 420 (CA) at 430 (citations omitted).

beyond what would otherwise be the upper level of a sentence. That room must be limited in order to maintain the integrity of general sentencing principles.

• [45] More recently the Court of Appeal in Bell v R held that “the protection principle” outlined in Leitch was not rendered obsolete by the creation of other measures designed to protect against child sex offending (such as registration and the extended supervision orders).¹⁵ The Court held:¹⁶

... the ability of sentencing Judges to uplift sentences where that is warranted for truly exceptional cases must remain as one of the options.

• [46] Leitch was relied upon by Ellis J in R v MacShane.¹⁷ Applying orthodox sentencing principles, her Honour arrived at a starting point of 18 to 24 months’ imprisonment.¹⁸ The difficulty was that, with discounts, the end sentence would not allow sufficient time for Mr MacShane to complete the Te Piriti course.¹⁹ Her Honour instead adopted a starting point of three years and four months’ imprisonment,²⁰ stating:

... I am aware that there are a number of cases where sentences have been imposed that were not justifiable solely on the basis of the seriousness of the offending, but were nonetheless warranted after taking into account the need to protect the community. So in your case, I can take into account the need to protect the community unless and until you had received appropriate treatment when determining your sentence.

[31] I acknowledge there are limits to the extent to which the term of a sentence of imprisonment may be extended for protective purposes. But I do not consider that what I propose to do here will breach those limits. It is also relevant that a somewhat longer than usual finite sentence is necessarily still less restrictive than a sentence of preventive detention, which may well have been open to me here.

(footnotes omitted)

• [47] I note that the increase in MacShane was between 16 and 22 months which effectively doubled what would otherwise have been the starting point.

¹⁵ Bell v R [2017] NZCA 90 at [19].

¹⁶ At [19].

¹⁷ R v MacShane, above n 11.

¹⁸ At [26].

¹⁹ At [18] and [29].

²⁰ At [32].

• [48] I consider that any finite sentence imposed on you should necessarily recognise the time required for you to complete the Te Piriti programme. That is because, in the absence of such treatment, you remained a significant risk to the community. As the Court of Appeal noted in its decision upholding your appeal, all of the psychologists involved in our rehabilitation recognised that you had “much work to do” and without that work, all considered the risk of your return to the community unacceptable.²¹ For these reasons, I agree with the Crown’s proposed approach to your resentencing involving imposition of a finite term corresponding broadly with completion of the Te Piriti course and your deferred resentencing. I do so adopting the starting point and various uplifts and discounts identified by it.

• [49] I note that in percentage terms, the uplift from the nominal sentence previously indicated by me is significantly less than the uplift imposed in MacShane.

• [50] In the result, I will be sentencing you to a finite term of imprisonment of six years, four months and two weeks.

Sentence

• [51] ATW, would you now please stand.

• [52] On each of the charges of indecent act on a child and the charge of attempted sexual connection with a child, I sentence you to six years, four months and two weeks’ imprisonment, such sentences to be served concurrently.

• [53] On the charge of assault on a child, I sentence you to two months’ imprisonment, to be served concurrently. I note you will automatically be placed on the Child Sex Offender Register.

• [54] ATW, you will imminently be a free man. I am hopeful that with the insight that you have obtained into your offending, your well-developed safety plan, the support of your whānau and the anchor that your Christian faith provides for your life, you might now lead the productive and respectful life of which I consider you were

²¹ Court of Appeal decision, above n 9, at [36].

always capable. You enter the next phase of your life with the Court’s best wishes and support.

Addendum

• [55] Based on the advice of counsel, it seems likely that Corrections will apply to the Parole Board for special conditions of release. Given Mr Ewen’s long engagement with ATW and the practical, sensible and insightful contributions he has brought to ATW’s management and resentencing, I encourage dialogue with him about any special conditions which Corrections intends to apply for. Proposed special conditions will, in my view, be the better for it.

Muir J