R v Stroobant

[2017] NZHC 1122

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-090-349 [2017] NZHC 1122

THE QUEEN

v

JADEN LEE STROOBANT

Hearing:	26 May 2017
Appearances:	D G Johnstone and J Murdoch for Crown E P Priest and S J Gray for Defendant
Judgment:	26 May 2017

SENTENCING REMARKS OF LANG J

R v STROOBANT [2017] NZHC 1122 [26 May 2017]

[1]      Mr Stroobant, you appear for sentence today having pleaded guilty to charges of murder and sexual violation by unlawful sexual connection.   The mandatory sentence in respect of the charge of murder is life imprisonment.   The maximum finite sentence on the charges of sexual violation is 20 years imprisonment.  As you know, the Crown seeks the indeterminate sentence of preventive detention in respect of those charges.

The facts

[2]      I sentence you on the basis of a summary of facts that you agreed to and signed before you entered your guilty pleas on 1 February 2017. This records that on the morning of 15 January 2016 you were staying at your mother’s address, or at least you were visiting your mother’s address, which is over the back fence from the victim in this matter.   The victim, Ms Tian, is a 69 year old woman of Chinese descent who arrived in New Zealand approximately four years ago.  She lived with her daughter and son-in-law in an address, as I have said, that was over the back fence from your mother’s address.

[3]      Ms Tian’s daughter and son-in-law went to work as usual at about 9 or

9.30 am on 15 January 2016.  At some stage during that morning you went to that address with the intention of burgling the address to take items of value from it. You encountered  Ms  Tian  outside  the  address  where  she  was  gardening.    You  then dragged her inside and punched her on several occasions about the face and head. When she fell to the floor, you stamped on her face with your foot and also caused significant damage to her neck and chest.   She was later found to have a broken hyoid bone in her neck and that she also had fractured ribs.

[4]      The stomping to the head appears to have been what killed Ms Tian.   The pathologist who conducted a post-mortem examination noted significant bleeding on the brain that is likely to have led to death.

[5]      You then inserted a blunt object inside the anus and vagina of your victim. This was done with sufficient force to cause significant internal injuries.  You then

went through the property to see if you could take items of value. You found an iPad and a quantity of Chinese currency.  You also took a watch belonging to Ms Tian’s daughter.   Closed circuit television later that day showed you going to a foreign exchange  centre  at  a  shopping  mall  where  you  exchanged  the  currency  for New Zealand currency amounting to approximately $370.

[6]      You then took some rudimentary steps to disguise your presence at the scene. A cloth with Ms Tian’s blood was found on the floor near her body.  A detergent bottle was also found nearby that was found to have your fingerprint on it.  Your DNA was extracted from semen found on clothing belonging to the victim.

[7]      You then left the scene and were not apprehended for a few days.  When the police spoke to you, you gave them a false account as to what you had been doing over the last few days.  You continued to deny your involvement in Ms Tian’s death until you entered your guilty pleas on the day your trial was due to commence.

Impact on victims

[8]      The  summary  of  facts  contains  a  relatively  bland  description  of  what occurred.  It does not begin to describe the terror Ms Tian must have felt in her last moments as you assaulted her and caused the injuries that led to her death.  It does not begin to describe also the wider effects that your offending has had for Ms Tian and her family.

[9]      Today, I have had the benefit of hearing from her daughter and her son-in- law, the people with whom she lived before her death.   They have described in measured, yet forthright, terms the very severe and long-lasting effects that your offending has had on them.   Not only have they lost a much loved mother and mother-in-law, but it has also led to significant issues for them.   They feel guilty about what happened, because they wonder whether they could have done something to prevent it.  They have no cause to feel guilty.  There is only person who needs to accept responsibility for what happened on that day, and that is you.

[10]     They have also described how the offending has left them with feelings of insecurity, fearfulness around strangers, and factors like that.   That is a common

occurrence to anybody who has had that kind of event happen to them.  It will be years before they are able to come to terms with the pain of the loss that you have caused to them.

[11]     But  your offending causes ripples far wider than that.   Other vulnerable people feel afraid and insecure in the sanctity of their own homes.  This offending occurred in broad daylight.  That is a time when all law abiding citizens are entitled to feel safe in their homes.  People in Ms Tian’s position now will not be able to trust strangers who come to their property.  Like her daughter and son-in-law, they will review their security arrangements.  In short, it helps to destroy the very social fabric of our community.

Murder

[12]     There can be only one sentence in these circumstances for the crime of murder and that is a sentence of life imprisonment.1   This means that you will not be released from prison until the parole authorities are satisfied that you no longer pose a risk of reoffending.

Minimum term

[13]     Your counsel also accepts that s 104 of the Sentencing Act 2002 is engaged. That section requires the Court to impose a minimum term of imprisonment of at least 17 years in circumstances where one or more characteristics are present.  Your counsel accepts that at least two of these characteristics are present.   First, the murder occurred in circumstances where you unlawfully entered Ms Tian’s dwellinghouse.  Secondly, Ms Tian was a particularly vulnerable victim because of her age and very slight build.  But there are other factors that need to be taken into account here.

[14]     Your offending also involved sexual offending of a significant nature.  That is said to have occurred at a time after Ms Tian was unconscious, so hopefully she did

not  appreciate  what  was  going  on  at  that  time.    Nevertheless,  that  is  a  very

1      Sentencing Act 2002, s 103(1).

significant aspect of your offending.  You then went on to callously go through the house and take possessions belonging to Ms Tian and her family.

[15]     Furthermore, you have a number of previous convictions for burglary.  I will refer to those again shortly, but this was not the first occasion on which you had chosen to go into somebody else’s home and steal things for your own benefit.

[16]     Finally,  you  were  at  this  time  still  subject  to  Court-imposed  release conditions after your release from prison just five weeks earlier.  You spent much of

2015 in prison it would seem.  You were subject to conditions that were supposed to monitor your conduct at the time at which this offending occurred.

[17]     The Court of Appeal has suggested that in considering s 104, the Court may undertake a two-stage process.2    First, the Court must look at other cases involving broadly similar offending in order to ascertain what the sentences imposed in those cases are.     Secondly, the Court must stand back and ascertain whether or not it would be manifestly unjust to impose a sentence of at least 17 years imprisonment. This means the Court must look at whether the circumstances of the offending are such that they are of a type that Parliament must have intended to come within the ambit of s 104.3

[18]     Counsel have referred me to a large number of authorities.4   Obviously, each of them differs factually, and so they are only of limited guidance.   Nevertheless, they show that in cases of broadly similar offending such as this, minimum terms of around 17 to 23 years imprisonment are imposed.

[19]     I consider that your offending is less serious than that in the case of Reid v R, in which the Court of Appeal reduced a minimum term of 26 years imprisonment to

2      R v Williams [2005] 2 NZLR 506 (CA).

3 At [67].

4      R v Goodman [2008] NZCA 384 at [122]; Robertson v R [2016] NZCA 99; R v Ellis HC Auckland CRI-2010-044-4912, 7 December 2011; R v Hotene HC Auckland S23/00, 9 October

2000; R v Cameron HC Christchurch CRI-2008-009-6389, 24 August 2009, upheld by the Court of Appeal in Cameron v R [2010] NZCA 411; R v Reid HC Christchurch CRI-2007-009-16445,

12 December 2008, Reid v R [2009] NZCA 281; R v Weatherston HC Christchurch CRI-2008-

012-137, 15 September 2009.

23 years imprisonment.5     That case involved two victims, and significant premeditation.  I consider that your offending has some similarities with the case of Cameron v R, in which the offender raped and killed a 15 year old schoolgirl.6   That case involved more premeditation probably than this case, but nevertheless it did not involve the theft of property as your offending did.

[20]     The Crown submits that a starting point for the minimum term falls within the range of 20 to 22  years.   Your counsel submits that, overall,  your conduct warrants a starting point of a minimum term of 18 years imprisonment.

[21]     Having regard to the factors to which I have referred and to the cases put to me, I take the view that a minimum term starting point of 20 years imprisonment is warranted.

[22]     I now need to consider whether, and if so to what extent, to reduce the minimum term to reflect mitigating factors.  Your counsel points to five.  First, she points to your youth.  You were three months short of your 20th  birthday when this offending occurred.

[23]     In Churchward v R, the Court of Appeal drew attention to the issues facing young persons in a criminal justice context.7    It is now well understood that adolescents do not mature fully until approximately 25 years of age.  For this reason they can make impulsive decisions and decisions in respect of which they do not consider the consequences.  I bear those issues in mind, but in cases of very serious offending such as this the issue of youth is often given less weight than it might in other  contexts.8      Secondly,  you  have  by  now  amassed  a  significant  number  of criminal convictions in both the Youth Court and District Court.  These include, as I have said, several convictions for burglary.  It was your decision to burgle Ms Tian’s house on 15 January 2016 that led you to the predicament you are now in.  For that reason I propose to give you a more limited discount for youth than would otherwise

be the case.

5      Reid v R [2009] NZCA 281.

6      Cameron v R [2010] NZCA 411.

7      Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

8      Pouwhare v R [2010] NZCA 268, [2010] 24 CRNZ 868 (CA) at [96].

[24]    Your counsel also points to the fact that you have had a very troubled upbringing.  I propose to describe that in more detail when considering the sentence of preventive detention.   I acknowledge, however, that you have had significant issues in your youth.  However, many of these appear to have been caused by your defiant and aggressive attitude towards both those in authority in your family and the authorities generally.  Giving as much weight as I can to those two factors, I propose to make a reduction of two years from the minimum term to reflect them.

[25]     Your counsel also submits that the fact that this offending occurred whilst you were heavily involved in the use of drugs is a matter I should take into account. She also submits that your offending is partly explained by the fact that, as a result of your drug use, you had been deprived of sleep over the last three days.   I do not propose to apply a discount in respect of those factors.  The fact that drugs and/or alcohol may provide a degree of explanation for what had occurred does not mitigate

the offending in any way at all.9

[26]     Furthermore, it is difficult to know whether your version of what occurred here can be believed. The reports that I have received show that you provide varying accounts  of different  events  in  your life.   You  are apt  to  embellish  matters,  to fabricate events and to tell straight out lies.   It is difficult to know whether your description of the last three days before this offending occurred is in fact accurate.

[27]     Next, your counsel submits that you have not had an adequate opportunity to have relevant therapeutic rehabilitative treatment.  Reading the reports, I am not sure that that submission is correct.  I consider that you have had opportunities in the past to engage in rehabilitative strategies, but that you have declined to do so.  I discuss that in greater detail when I consider the issue of preventive detention, but I am not satisfied it amounts to a mitigating factor that operates to reduce the minimum term of imprisonment.

[28]     This brings me to your guilty plea.  A guilty plea is a recognised mitigating factor that is generally taken into account.10     It recognises two things.   First, it

9      Sentencing Act 2002, s 9(3).

10     Section 9(2)(b).

recognises that the offender has accepted responsibility for his or her offending. Secondly, it saves the cost to the State of a trial, and it saves the family of a victim the anguish of having to sit through a trial traversing details about the offending.

[29]     In your case I accept that your guilty plea has had the latter effect.   It has saved the State the cost of a trial and it has saved members of Ms Tian’s family from having to sit through a trial of several weeks duration focussed on their mother’s death.  But your guilty plea came very late.  It came on the morning of the trial and was first intimated the day before.  Up until that date, nobody knew that you were going to plead guilty.   Your counsel explains that disclosure from the Crown was ongoing.   Your counsel also explains that the defence was also obtaining reports from experts, and it was not until late in the piece that proper advice could be given to you regarding your plea.  I accept that as far as it goes, but nevertheless, your plea was very late.  You knew that you were the person who perpetrated these crimes. You could at any time have accepted responsibility for them.

[30]     The material before me also calls into question the extent to which you have accepted responsibility for your offending.  In particular, you now deny or say you cannot  remember  anything  about  the  sexual  offending  and  you  do  not  want  to discuss it.  You have also said that you entered your pleas effectively to ensure that you did not have to undertake the rigours of a long trial.   You have also said, I acknowledge, that you have entered guilty pleas because it was your fault. Nevertheless, I do not see a significant acceptance of responsibility for your offending.   For that reason I give your guilty pleas less weight than they might otherwise have.

[31]     In this context in any event the weight to be given to a guilty plea may be much less than in considering the length of a determinate sentence.11    I propose to reduce the starting point by one year to reflect this factor.  This means that the end sentence on the charge of murder will be one of life imprisonment, and that you will

be required to serve a minimum term of 17 years before being eligible for parole.

11     Malik v R [2015] NZCA 597 at [33]-[35].

Sexual violation by unlawful sexual connection

[32]     The next issue I need to determine is the sentence to be imposed in respect of the charges of sexual violation by unlawful sexual connection.  As I have said, those charges   would   normally   attract   a   maximum   finite   sentence   of   20   years imprisonment.

[33]     I consider that the aggravating features of this offending mean that it would be dealt with in accordance with the upper end of Band 3 identified in a decision of the Court of Appeal called R v AM.12    Your sexual offending was accompanied by extreme violence and it involved a very vulnerable victim.  For that reason it would fall within a band that carries a starting point of between 12 and 18 years imprisonment.13   If I was to impose a finite sentence, I would select a starting point of around 16 years imprisonment.  Taking into account a guilty plea, the sentence would reduce to one of approximately 14 years imprisonment.   Given the circumstances in which the offending occurred, I would also need to give consideration to the imposition of a minimum term of approximately 50 per cent.

[34]     The real issue, however, is whether I should impose a sentence of preventive detention.

[35]     The purpose of a sentence of preventive detention is to ensure that society is protected from those who pose a significant and ongoing risk to the safety of its members.14     It is not a sentence of last resort.   However, it is a sentence that is imposed when the Court is satisfied that a finite, or determinate, sentence cannot adequately protect society against future offending of certain types by the offender.

[36]     There is no dispute in the present case that the jurisdiction to impose a sentence of preventive detention is established.  First, you were more than 18 years of age at the time that you committed these offences, and you have been convicted of

a qualifying sexual offence.  The real issue is whether I can be satisfied that you are

12     R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

13 At [105].

14     Sentencing Act 2002, s 87(1).

likely to commit another qualifying sexual or violent offence at the expiration of the sentence you would serve.

[37]    Qualifying offences include both sexual offences and offences involving violence, but not murder.  They include, for example, robbery, aggravated robbery, assault with intent to rob and wounding with intent to injure.15   In deciding whether you are likely to commit another qualifying offence, I am required to have regard to five factors. These are:16

(a)       Any pattern of serious offending disclosed by the offender’s history;

(b)The  seriousness  of  the  harm  to  the  community  caused  by  the offending;

(c)       Information indicating a tendency to commit serious offences in the future;

(d)The absence of, or failure, of efforts by the offender to address the cause or causes of the offending; and

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

Is there a pattern of serious offending?

[38]     At first glance your criminal history is not suggestive of a person who may be a candidate for a sentence of preventive detention.  That is no doubt why the Crown initially indicated that it would not seek such a sentence.   It was not until your counsel produced a report from a psychiatrist that the Crown became sufficiently concerned to ask the Court to consider the sentence of preventive detention.  It was at that point that I directed that two further reports be obtained from health assessors, both of them experienced in their field, to assist me to determine whether or not you

are likely to commit another qualifying offence upon your release.

15     Section 87(5)(b).

16     Section 87(4),

[39]     This resulted in detailed reports being received from two experienced health assessors, Dr Clare Brindley and Dr Ian Goodwin.  As a result, I now have a vast amount of material about you.  This has provided me with a great deal of assistance in arriving at my decision.  I will turn to this in greater detail when I consider one of the other criteria, but the health assessors’ reports place in  context  your earlier offending.   It shows that you were a disturbed child from a relatively young age. Some of your earliest convictions are those for common assault and threatening behaviour.   They occurred in a family environment where you are said to have assaulted your stepfather, and then thrown rocks at the window of an address where your mother was working.   Other than a very recent conviction for assaulting a prison officer, however, you have no other convictions for violence.

[40]     You  do,  however,  have  seven  convictions  for  burglary.     These  were committed between September 2012 and December 2014.  The first of these were dealt with in the Youth Court and, after you turned 17 years of age, they were dealt with in the District Court.  You also have several convictions for being in possession of instruments for burglary and conversion.   You also have numerous driving offences, including numerous convictions for driving while disqualified.  You have several convictions for unlawfully taking motor vehicles and you have a raft of convictions for failing to comply with Court-ordered sentences and directions.

[41]     This is not, as I have said, the usual pattern for a person who is a candidate for preventive detention.  Usually in such circumstances the Court is confronted with previous convictions for significant sexual offending or significant violent offending. I will return to that issue later.  I consider that your criminal history shows a clear pattern of burglary offending and breaching Court orders, but it goes little further than that.

The seriousness of harm to the community

[42]     The next issue is the seriousness of the harm to the community caused by the offending.  This really speaks for itself.  I have already described the effects of this offending for Ms Tian’s family and the wider community.  Offending such as this is of the gravest seriousness for our community.

Information indicating a tendency to commit serious offences in the future

[43]     It is in this context that I come to consider the health assessors’ reports that I received.  These comprise the reports by Dr Brindley and Dr Goodwin.  They also include the report obtained by your counsel from a psychiatrist, Dr Andrew Immelmann, and another report obtained by your counsel from another psychiatrist who specialises in the effect of alcohol and drugs.

[44]     It is at this point necessary to say something about your background because, in my view, it informs the issue of whether or not you have a tendency to commit serious offences in the future.

[45]     Without doubt you had a disadvantaged and dysfunctional upbringing.  You did not know of the existence of your father until you were ten years of age.  You believed that your father was your stepfather, who brought you up until you were three years of age, when he and your mother separated.   You continued to have contact, however, with him over the years.   It is clear that there were significant issues arising out of the breakup of the relationship between your stepfather and your mother.  It is said that you were the subject of emotional abuse and physical abuse at their hands.   There is a suggestion that there was a significant use of alcohol and drugs within the family unit.  There is also material on the file indicating that you engaged in violence towards your mother and stepfather.

[46]     Schooling was always a significant issue for you.  You attended a number of schools.  You said to one health assessor that your changes in schooling were caused by your mother moving around to different addresses.   There is also significant material, however, to show that many of your changes of schooling arrangements were brought about by the defiant, violent and aggressive attitude you showed towards other students and staff members at school.  Again, it is difficult to know how much of what you told the health assessors can be believed. You told one health assessor you had thrown a teacher through a window.  You certainly seem to have been expelled from at least two schools for punching teachers.  All of those issues were well in evidence by 2010.

[47]     Dr Immelmann’s report cites from a report prepared by another psychiatrist in

March 2010. This psychiatrist said:

In terms of diagnosis, I think that Jaden does now fulfil the criteria for conduct disorder.  In many ways this is not a diagnosis in the usual medical sense but a description of someone’s behaviour.  The criteria include a persistent pattern of dissocial, aggressive or defiant conduct.  It implies no causal theory about why somebody might behave in such a way.  In Jaden’s case it might be that his disruptive early life and history of strained relationships with some adults have led to having long-term resentments, difficulty regulating his anger and exaggerated sense of entitlement.

[48]     Matters continued on.   You appear to have done best at a school that you attended when you were about nine years of age for approximately ten months.  This was Waimokoia School, a boarding establishment for young persons demonstrating the social and anti-social characteristics that you showed at that time.  You appear to have  done  well  within  that  environment,  perhaps  because  it  had  very  strict boundaries and you knew what you could and could not do.   Unfortunately, your mother says that when you returned to her care she did not follow through with this. It is evident that you paid no heed to directions given by your mother. You were said to be more compliant so far as your stepfather was concerned, but that appears to be because he was bigger and stronger than you.

[49]     One matter that stands out from the reports is that, for long periods of time from when you were about 13 years of age, you had no school to go to because you had been expelled from your last school and no other school would take you.  Your own attitude towards the education system appears to have been completely ambivalent.  You appear to have shown no interest in any activities at school and disengaged from it at about the age of 13.

[50]     It was at about this point that you became involved with the consumption of alcohol and drugs.   Again, it is difficult to gain an accurate assessment of your involvement and when  it occurred, because of the  extent to which  you tend to embellish what you tell others.   Nevertheless, it seems reasonably clear that you began drinking alcohol in your early teens, and at about the same time you began taking a wide range of drugs. These included cannabis, ecstasy and methamphetamine.

[51]     In addition, you had a number of female partners, but you did not form any long-term or stable relationships with any of them.  You told one health assessor you have three children.  You told another you have four.  It appears that you do not have any long-term ties with either your former partners, or your children.   The only persons within your family with whom you seem to have maintained any degree of contact is your 44 year old aunt, and one of your stepsisters.

[52]     One of the most salient features that flows from all of the reports, and in this I include Dr Immelmann’s, is that you appear to have no empathy whatsoever with any of your victims.  You have no insight into what you have done or the damage you have caused.   You appear to have no interest in atoning for your conduct or rehabilitating yourself.   It is clear that, during the time you were at Waimokoia School, an extraordinary amount of time was spent by experts in their field endeavouring to guide you back onto the social pathway.  This appears to have done no good at all.

[53]     The psychiatrists have carried out a number of tests using what we know as actuarial instruments.  Those tests use active and dynamic factors in an endeavour to provide some guidance as to how a human being is likely to act in the future.  Each of these has shown that you are at a high risk of both sexual and violence reoffending in the future.

[54]     If I could just read a passage from the report of Dr Brindley:

The risk factors present for Mr Stroobant [and this is using an instrument called the Static 99 Test] were relevant to having committed a current non- sexual violence offence having a history of non-sexual violence the number of previous sentencing dates, age less than 25 year old, having never lived with a partner for two continuous years, having unrelated victims and having stranger victims, individuals with these characteristics on average sexually reoffend at 43% over five years and 43% over ten years.  The rate for any violent recidivism including sexual for individuals with these characteristics is on average 43% over five years and 46% over ten years.

Mr Stroobant’s risk was assessed as high risk of future sexual offending on

the Static 99 category, compared to other adult male sex offences.

Dr Brindley put you in the top 12 per cent of offenders in this regard.

[55]     Dr Goodwin has this to say:

As I have opined above, I am of the opinion that the risk of Mr Stroobant reoffending  in  a  similar  manner  at  this  time  is  high.    The  Court  will appreciate the difficulties in attempting to predict risk at an indeterminate point in the future.  There are, however, a number of characteristics of Mr Stroobant’s offending, including his unwillingness to acknowledge the extent of violence or the sexual offending that cause me considerable concern.   I could only describe Mr Stroobant’s account of the offending as callous and unemphathetic.

[56]     Dr Immelmann also talks of this.  He says:

Notwithstanding the above, Mr Stroobant demonstrated a significant array of troubling features in relation to the likelihood of future offending. He has had early behavioural problems and has shown serious criminal behaviour with deficits in anger control especially when intoxicated.   By his own account, he has sought stimulation and has been impulsive and irresponsible. I was not able to elicit a completely convincing expression of remorse for his actions, nor empathy for the victim and her significant others.  Mr Stroobant expressed that it had been tough on him and his own family.   I found Mr Stroobant to be articulate and keen for me to form a favourable impression of him.  By his own account he has lied in the past.

[57]     This leads Dr Immelmann to say:

My findings do not unequivocally support the High Court imposing a sentence of preventive detention.  It appears Mr Stroobant has made some efforts to address the causes of his offending, specifically entering guilty pleas  indicates  some  sense  of  taking  responsible  for  his  actions.    It  is possible   that   Mr   Stroobant’s   intent   in   this   regard   may   be   entirely instrumental rather than a consequence of a true acceptance or responsibility. I am not able to establish whether or not this is the case.

[58]     All psychiatrists agree, however, that, regardless of whether or not you wish to take advantage of it, you should be offered rehabilitative treatment in prison.

[59]     These factors lead me unequivocally to conclude that you are at high risk of both violent and sexual offending on release from prison.  The only way in which you will be able to deal with that is by intensive therapeutic intervention in which you tackle the underlying causes of your problems.

Absence, or failure, of efforts to address the cause or causes of the offending

[60]     In this context it is obviously relevant that you have never been convicted before of a sexual offence.  You were tried, I think in 2011, on charges of indecency,

but those charges were dismissed.  Other than that, you have not come before the courts before on any form of sexual charge, so it is not surprising that treatment has not been offered to you in relation to sexual offending.  Nevertheless, I am satisfied that degrees of help have been offered to you over the years by various agencies and institutions.  The overwhelming impression that I gain from these is that to date, and at the present, you are not properly willing to engage with such offers of help.

[61]     You say sporadically to the health professionals that you would be prepared in prison to engage in therapeutic treatment.  I cannot make any assessment at this time as to whether or not that is genuine, or whether you said that to the health assessors because you knew that was they wanted to hear.   Certainly your track record to date has not indicated a willingness to engage with health professionals or others who have offered to help you.

A lengthy indeterminate sentence is preferable

[62]     The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society really speaks for itself.   It is always preferable to impose a finite sentence rather than an indeterminate sentence.  The qualification in this case must be, would a determinate sentence adequately protect our society?

Conclusion

[63]     This leads me to my end conclusion, which is of course that you are at high risk of committing another qualifying offence, whether it be sexual or violent, upon your release from jail.   I must now stand back and determine whether or not to exercise my discretion to impose a sentence of preventive detention.

[64]     Your counsel submits that I should not do so.  First, she submits that such a sentence would be crushing on a person your age.  I do not accept that submission. First, you will already be required to serve a life sentence with a minimum term of

17 years before being eligible for parole. A sentence of preventive detention will not add markedly to that.  In addition, you have expressed your enthusiasm for getting on with your life in prison.   You say you have been preparing for a long prison sentence, and you say that you wish to make the most of your time I prison.  I see

you as looking to the future, rather than to the past, and I do not accept that a sentence of preventive detention will be regarded by you as a crushing sentence.

[65]     Next, your counsel points out that, in practical terms, a sentence of preventive detention will be of little moment given the fact that you will already be serving the indeterminate sentence of life imprisonment.

[66]     That is true in one sense, but it overlooks two factors.  The first is this.  A minimum term of imprisonment on a charge of murder is imposed, in the present context at least, to recognise the seriously aggravating features of the murder.   A sentence of preventive detention is not imposed for that purpose.  It is imposed to protect the community from persons who pose an ongoing risk of serious offending. Secondly, it is now well established, or well accepted, that a sentence of preventive detention can provide an incentive to offenders to engage in rehabilitative processes. I consider this to be a particularly important factor in the present case.

[67]     If  I  was  to  impose  a  sentence  of  14  years  imprisonment  on  the  sexual violation charges, that sentence would be served by you and would be over long before the minimum term I will impose in relation to the charge of murder.  Your reaction thus far to the sexual charges has been to ignore them and push them to one side.  You say you cannot remember it, and it is clear that you do not wish to talk about that aspect of your offending.

[68]     If you were to receive a finite sentence, I have no doubt that you would never think about that aspect of your offending again.   Instead, you would simply concentrate on completing the life sentence for murder.   I consider you need an incentive to ensure you engage with the fact that this was serious sexual offending that could occur again in the future.  If a sentence of preventive detention remains in effect beyond the minimum term imposed, it will be a constant reminder to you and to the parole authorities that this is an aspect of your offending that needs to be addressed.

[69]     Furthermore,  the  courts  have  repeatedly  said  that  the  imposition  of  a significant minimum term of imprisonment in relation to a charge of murder is no

barrier  to  a  sentence  of  preventive  detention  being  imposed.    Perhaps  a  good example of that is a case to which I have already referred, Cameron v R.17    In that case the sentencing Judge imposed a minimum term of 19 years imprisonment on the charge of murder and imposed a term of preventive detention with a minimum term of ten years on the charge of rape.

[70]     The Court of Appeal upheld that sentence, and some of the issues that the case raised have parallels in the present case.   In particular, the Court of Appeal noted that the sentencing Judge had selected preventive detention because the offender’s record had suggested court sanctions meant very little.   Secondly, there was a total absence of any insight on the offender’s part and there was an unwillingness or inability to effectively undertake rehabilitation initiatives.18    The same, in many ways, could be said for you.

[71]     I have decided that  it  is  appropriate to  impose  a sentence of preventive detention because I am satisfied that that is the only realistic means by which the community can be protected against the very real risk of further sexual and/or violent offending by you in the future.  As I have said, the only way in which that risk can properly be avoided is by you accepting full responsibility for what you have done, and agreeing to participate meaningfully in the programmes that will be offered to you whilst you are in prison.

Sentence

[72]     On the charge of murder you are sentenced to life imprisonment, and you are ordered to serve a minimum term of 17 years before being eligible for parole.

[73]     On the charges of sexual violation by unlawful sexual connection, you are sentenced to preventive detention with a minimum term of ten years.

17     Cameron v R, above n 6.

18 At [107].

[74]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Auckland