HEPI v R [2020] NZCA 381

HEPI v R [2020] NZCA 381 [2 September 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA655/2019[2020] NZCA 381BETWEEN ERIC REIHANA HEPIAppellantAND THE QUEENRespondentHearing: 22 July 2020Court: Cooper, Peters and Whata JJCounsel: B P Kilkelly for AppellantM N Zarifeh and A L Mills for RespondentJudgment: 2 September 2020 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)Introduction[1] Mr Hepi kidnapped a woman and brutalised her over a period of three days.Osborne J sentenced him to preventive detention.1 As Mr Hepi was subject to a1 R v Hepi [2019] NZHC 3007 [High Court judgment].first strike warning at the time of his offending, a minimum period of imprisonment(MPI) of 15 years and two months was also imposed.2 The MPI is not challenged.This is an appeal against the sentence of preventive detention.Facts of the offending[2] Mr Hepi pleaded guilty to multiple charges, including representative chargesof rape, unlawful sexual connection, threatening to kill and threatening to causegrievous bodily harm. He also pleaded guilty to charges of kidnapping, injuring withintent, assault with a weapon, intentional damage, male assaults female and assaultwith intent to injure.[3] The complainant was known to Mr Hepi and they had arranged to meet at hisflat. They shared some methamphetamine and shortly after, Mr Hepi became agitated.The complainant wanted to leave but Mr Hepi would not let her go. Over the nextthree days, Mr Hepi subjected her to physical and sexual abuse.[4] On one occasion he strangled her with such force that she urinated herself.He then took her watch and cell phone. He repeatedly questioned her as to why shewould not enter a relationship with him and hit her when she answered, striking herrepeatedly about her face using his fists, making contact with her ear, eyes, nose,mouth, and jaw. He also kneed her in the jaw and the body. The complainant estimatesshe was struck between 20 and 30 times. As a result, she suffered bruising to her faceand body, including two black eyes. Mr Hepi also hacked off most ofthe complainant's hair with a knife.[5] Mr Hepi told the complainant he was going to scar or cut a part of her bodyand that she was to choose where this would happen. Using a kitchen knife, he cutinto her shoulder. Mr Hepi then remarked: "oh it's not very deep, we'll have to do itagain". As the questioning episode continued, Mr Hepi told the complainant to choosebetween further violence and having sex. Fearful of further violence, she followedMr Hepi's directions to take off her clothes. Mr Hepi then raped her.2 Sentencing Act 2002, ss 86C and 86I.[6] Mr Hepi also told the complainant that he was "going to do the murder suicidething" and that he was going to force pills down her throat. Mr Hepi then forced herto take six to seven Tramadol pills and took several himself. He then madethe complainant take additional pills of a different type. She tried to crush the pills inher hand or hold them under her tongue but was unable to do so.[7] Mr Hepi directed the complainant to get onto the bed and began to rape her.He then forced her to give him oral sex and forced his penis into her mouth. Mr Hepithen penetrated the complainant's anus with his penis, which she recalls as beingparticularly painful. Following this, Mr Hepi performed oral sex on the complainant.[8] The complainant remained on Mr Hepi's bed for a significant amount of timeover the three days. Mr Hepi continually threatened to rape her. She was unable touse the toilet or move without his permission. When she attempted to leap off the bed,Mr Hepi grabbed her and pinned her to the floor. He continued to pin her down andthen penetrated her anus with his penis.[9] Over the time that Mr Hepi confined the complainant, he forced her to performoral sex on him a further two to five occasions, licked her anus and vaginal area on afurther two occasions and raped her repeatedly in between episodes of violence.The complainant estimates that she was raped on a further three to eight occasions.[10] Mr Hepi repeatedly threatened to kill her, on one occasion while holding aknife to her throat. He made numerous threats to cause her grievous bodily harm,including stabbing her in the vagina and knocking her teeth out. On one occasion,Mr Hepi took out a samurai sword and pointed it at her vagina, indicating he was goingto stab her.[11] When, finally, the opportunity arose, the complainant called the police.Mr Hepi was arrested at his flat.The sentencing[12] Osborne J identified a starting point of 18 years' imprisonment, having placedthe offending "at the very top" end of band 3, as set out in R v AM.3 This starting pointwas uplifted by one year for committing this offending while subject to an extendedsupervision order (ESO).4 The Judge did not apply an uplift on account of Mr Hepi'sconsiderable record of prior offending,5 noting that he was already subject to a firststrike warning and would therefore be required to serve any determinate sentencewithout parole.6 He then applied a guilty plea discount of 20 per cent, or three yearsand 10 months, resulting in an end sentence of 15 years and two months'imprisonment.7[13] The Judge then turned to the issue of preventive detention. He referred to twohealth reports (discussed below) and concluded that Mr Hepi was unable to understandsexual contact is unlikely to be consensual because of his deep-seated self-focus andsense of entitlement, and that he was assessed as having a high or very high risk ofcommitting further violent offences and a high risk of committing further sexualoffences.8[14] The Judge noted that there had been an increase in the seriousness of Mr Hepi'spattern of offending, notwithstanding repeated attempts at treatment and his age.He also referred to the extraordinary harm inflicted upon his multiple victims,including in the present case. The Judge said that Mr Hepi is yet to complete someprogrammes, while also observing that the ESO has failed as a safety valve.9 He foundMr Hepi would likely commit another qualifying offence on the expiry of anydeterminate sentence, and was therefore satisfied that preventive detention would beappropriate.10 As Mr Hepi was subject to a first strike warning, the Judge imposed an3 High Court judgment, above n 1, at [29], citing R v AM (CA27/2009) [2010] NZCA 114, [2010]2 NZLR 750.4 At [30].5 At [35].6 Sentencing Act, s 86C(4).7 High Court judgment, above n 1, at [39].8 At [50]–[51].9 At [64] and [66].10 At [68]–[70].MPI of the determinate sentence Mr Hepi would otherwise have served, namely15 years and two months.11Mr Hepi's background[15] Mr Hepi has accumulated 61 previous convictions over a period of 23 years,including eight for violence, predominantly against women, and five for sexualoffending against both adult and child female complainants. He also has convictionsfor non-compliance with sentences and orders, burglary, theft, wilful or intentionaldamage, drugs and illegal driving behaviour.[16] He has also been sentenced to imprisonment on 12 separate occasions, andsubject to driving disqualifications, fines, reparation, non-residential periodicdetention, community work and supervision. Furthermore, in July 2015, a 10-yearESO was granted in respect of Mr Hepi, which he has repeatedly breached.Health assessor's reports[17] As required by s 88(1)(b) of the Sentencing Act 2002 (the Act), two reportswere obtained from mental health assessors about the likelihood of Mr Hepicommitting a further qualifying sexual or violent offence.[18] Both reports concluded that Mr Hepi posed a high risk of violent reoffendingon the "Violence Risk Scale" (VRS) and sexual reoffending on the "Violence RiskScale: Sexual Offence Version" (VRS:SO), and medium to high risk of sexualreoffending on the "Automated Sexual Recidivism Scale – Revised" (ASRS-R).Mr Hepi was also assessed according to the "Psychopathy Checklist". In the firstreport, dated 16 September 2019, Ms Peacock found that he scored well above theaverage found in a study of imprisoned New Zealand offenders, with his total scorebeing in the range found to identify those at very high risk of serious reoffendingwithin five years of release. In the second report, dated 31 October 2019, Mr Princeconsidered that Mr Hepi reached the threshold for psychopathy.11 At [72].[19] Overall, Ms Peacock concluded that Mr Hepi presented with a very high riskof engaging in future (non-sexual) violent offending behaviour. His risk of violentrecidivism was considered to be potentially more elevated than indicated by static riskmeasures. She also observed that potential victims are most likely to be femaledomestic partners, and that while the acts are most likely to be impulsive, Mr Hepi'sprior offending pattern suggests he is more likely to engage in violence within thecontext of interpersonal and intimate conflict. She considered that Mr Hepi alsopresented a "high" risk of adult and child sexual recidivism within five years ofrelease, and that potential victims are most likely to be females who are known to him.Based on actuarial data, she also considered Mr Hepi to be at very high risk of generaloffending within five years of release from prison.[20] Mr Prince reached a similar overall conclusion. He observed that, takentogether, Mr Hepi's history is one of serious violence and sexual offending spanningmost of his life, and that his victims will have suffered physical and psychologicaltrauma. He noted that Mr Hepi possesses a high number of static and dynamicvariables that have been associated with violent and sexual offending, and that hispsychopathy amplifies his risk. Mr Prince considered that if Mr Hepi serves a finitesentence and does not successfully complete treatment and/or demonstrate significantbehavioural change, then certain individuals in society will be significantly vulnerableto being victimised by him in future.[21] Both reports acknowledged the treatment programmes Mr Hepi has attended,including the Montgomery House Violence Prevention Programme (VPP) in 2001,the Medium Intensity Rehabilitation Programme (MIRP) in 2007 and the Kia MaramaProgramme for sexual offending against children between 2013 and 2015. They alsorecommended further treatment programmes, including a Special Treatment UnitRehabilitation Programme (STURP) for violent offenders, and the Adult Sex OffenderTreatment Programme (ASOTP), to address Mr Hepi's dynamic recidivism riskfactors.[22] But both report writers expressed caution as to Mr Hepi's capacity for change,noting among other things that, despite his extensive treatment opportunities, Mr Hepifailed to internalise the content, or actively disregarded any treatment learnings infavour of continuing to meet his needs through antisocial behaviour, as evidenced byhis repeated and escalating offending subsequent to his completion of thoseprogrammes. Significant cognitive distortions pertaining to his offending were alsoidentified as both a potential treatment need and a barrier.Argument[23] Mr Kilkelly emphasised the prospect of rehabilitation as a key factor favouringa determinate sentence. He said that Mr Hepi's attendance at several treatmentprogrammes show he is prepared to undertake such programmes. Treatment is alsorecommended by the health experts. Conversely, his instructions were that Mr Hepisaw no purpose in attending the rehabilitative programmes if the sentence ofpreventive detention was upheld. Mr Kilkelly also referred to various sentencesdealing with very serious sexual offending, akin to the present kind, where a sentenceof preventive detention was not imposed, namely R v Niko, R v King and Jesen v R.12He submitted, therefore, that a lengthy determinate sentence is available as it providesadequate protection for society.[24] Ms Mills for the Crown responded that a sentence of preventive detention isappropriate, given Mr Hepi's criminal history and risk profile and that despite lengthycustodial sentences and the imposition of an ESO, he has continued to offend.Assessment[25] The threshold test for preventive detention is provided by s 87 of the Act.As stated by this Court in Jesen v R:[51] An offender may be sentenced to preventive detention if the court issatisfied they are likely to commit a qualifying offence if they are released atthe sentence expiry date. The purpose of preventive detention is to protect thecommunity from those who pose a significant and ongoing risk to the safetyof its members. But it is important to recognise that preventive detention isnot a sentence of last resort or a punishment in itself.(Footnotes omitted.)12 R v Niko [2016] NZHC 3028; R v King [2019] NZHC 537; and Jesen v R [2019] NZCA 581.[26] We are satisfied that the Judge was correct to impose a sentence of preventivedetention. The present offending was brutal, sustained over a prolonged period andinvolved multiple acts of serious physical and sexual violence. It caused severe harmto the complainant. A starting point of 18 years, with an uplift of one year, and an enddeterminate sentence of 15 years and two months' imprisonment was well withinrange.[27] In terms of the s 87(4) criteria, Mr Hepi's offending history reveals a clearpattern of both serious violent and sexual offending, and the harm caused by it to thecommunity is very serious.13 The prior sexual offending involved a rape and two actsof sexual violation in 1996,14 and two indecent assaults on a child in 2009. This wasfollowed by the present offending, which occurred in October 2018. The periodsbetween these episodes of sexual violence include multiple stints in prison, and theESO order in 2015, which Mr Hepi has breached on multiple occasions, includingwhen committing the present offending.[28] As the health assessors concluded, Mr Hepi presents a high risk of serioussexual offending and/or violent offending on release.15 To his credit, he hasparticipated in treatment programmes for violent and sexual offending. But, asthe present offending clearly shows, those programmes have not been successful andhave not adequately mitigated the risk presented by him. As the Judge aptly noted,the ESO mechanism has not provided and does not provide a safety valve.16 It is nota substantial risk mitigating factor in this case at present.17[29] Mr Hepi's ongoing denial of the sexual offending is important. The cognitivedistortion and dismissive attitude toward his offending identified by the health expertspresents a bleak picture in terms of future risk. Notably, Mr Hepi continues to maintainthe sexual acts were consensual. This attitude is a significant barrier to his13 Sentencing Act, s 87(4)(a) and (b).14 These charges arose from a single incident, in which Mr Hepi forced his way into the house of awoman known to him, forced her to the floor and proceeded to rape and sexually violate her beforeleaving the address.15 Sentencing Act, s 87(4)(c).16 High Court judgment, above n 1, at [66].17 Compare R v Parahi [2005] 3 NZLR 356 (CA) at [87]–[90]; and Grant v R [2017] NZCA 614 at[50]–[52] and [57].rehabilitation, and, as matters stand, we have no confidence that Mr Hepi willmeaningfully engage in treatment.18 Mr Hepi's case does not engage the principle infavour of a lengthy determinate sentence, because such a sentence will not provideadequate protection of the public.19[30] While it is not necessary or helpful to analyse the risk presented by Mr Hepiby reference to other sentencing decisions, we have considered the cases cited byMr Kilkelly.20 They are distinguishable. In each of those cases, the sentencing Judgeor the appellate Court had identified encouraging features and reasons for optimism.We cannot find similar reasons for optimism in this case at present.[31] Accordingly, we are satisfied that preventive detention is necessary to protectthe public in this case.Result[32] The appeal is dismissed.Solicitors:Crown Solicitor, Christchurch for Respondent18 See Jenkins v R [2015] NZCA 131 at [43]–[45].19 Sentencing Act, s 87(4)(e).20 R v Niko, R v King; and Jesen v R, above n 12.