R v EDGERTON [2020] NZHC 1694

R v EDGERTON [2020] NZHC 1694 [14 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2019-092-8422[2020] NZHC 1694THE QUEENvNEVILLE ANDREW EDGERTONHearing: 14 July 2020Counsel: M S Williams for the CrownM Allen for the DefendantJudgment: 14 July 2020SENTENCE OF DUFFY JSolicitors:Crown Solicitor, AucklandPublic Defence Service, Manukau[1] Mr Edgerton appears for sentence today after pleading guilty to sexualconnection with a young person,1 supplying methamphetamine to that young person2and receiving stolen property.3 He also appears for sentence on one charge of breachof release conditions.4[2] Today Mr Edgerton indicated through his counsel that he was not prepared toleave his cell. He did this at 9.00 am in the morning and for other reasons, namely,the late arrival of a supplementary psychological report, the sentencing had to bedelayed until 2.15 today. Mr Edgerton has been in the Courthouse in the cells all day,and he has had ample time to think about whether he would change his mind. He haschosen not to. Having indicated he was not prepared to leave his cell, he signed awritten waiver in the following terms:My name is Neville Andrew EDGERTON.DOB: 30 August 1955PRN: 5748695I am at the Auckland High Court today for sentencing. I do not wish to attendmy sentencing hearing. I consent to the sentencing going ahead in myabsence. My lawyer told me that I need to appear in court to hear mysentencing.I have told my lawyer that I am going to stay in the cells and that the Judgecan sentence me in my absence. My lawyer Ms Allen can relay to me thesentencing outcome.The note is then signed and dated by Mr Edgerton.[3] I was initially concerned regarding the prospect of proceeding with sentencingin circumstances where Mr Edgerton was absent from the courtroom. Particularly ass 123 of the Criminal Procedure Act 2011 prohibits the Court from sentencing anoffender charged with category 2, 3 or 4 offences in his or her absence, asMr Edgerton is. Section 123 also provides that where a defendant is absent the Courtmay issue a warrant for their arrest.1 Crimes Act 1961, s 134(1). Maximum penalty 10 years' imprisonment.2 Misuse of Drugs Act 1975 ss 6(1)(c) and (2). Maximum penalty life imprisonment.3 Crimes Act 1961, ss 246 and 247(a). Maximum penalty 7 years' imprisonment.4 Parole Act 2002, s 71(1) maximum penalty one year imprisonment.[4] I am satisfied however, that Mr Edgerton is not absent. He is present in theCourt precincts and, if necessary, I could have him brought to the courtroom by force.I am however, not prepared to do that today and instead will accede to Mr Edgerton'swishes and sentence him in his absence from the courtroom today. I will also directthat he remains in the Court precincts until such time as my sentencing remarks havebeen delivered. He will know his sentence and the reasons for it before he leaves thecourt precinct today.5 I should also add that in addition to having Mr Edgerton'scounsel, Ms Allen, confirm with him that he would not come to this Courtroom forsentence, the security officer in charge of Mr Edgerton who is also in open Court today,confirmed that he will not willingly come to this Courtroom.[5] I shall continue now with my sentencing remarks and these shall be addressedto Mr Edgerton as if he were in the courtroom to receive them.[6] Mr Edgerton, each of the charges you have pleaded guilty to carry their ownpenalty, ranging from one year to life imprisonment. However, the Crown has askedme to consider imposing an indeterminate sentence of preventive detention because ofthe risk of sexual offending following your release from a finite sentence.[7] I note that you have a prior conviction for murder and were sentenced to lifeimprisonment. The current offending on which you appear for sentence wascommitted whilst on life parole. You have since been subject to a final recall and areback in custody.The offending[8] You are before the Court today for convictions arising out of the followingcircumstances. Being subject to a sentence of life imprisonment for your convictionfor murder in 1985, in 2016 you were released from custody. In mid to late December2018 you met C, the victim of your offending, who was 15 years old at the time. Cand two associates had been smoking cannabis in an abandoned shed in East Tāmaki,and you noticed this and followed the boys into the shed. You started smokingmethamphetamine and conversed with the boys, asking them how old they were,5 See R v Utatao [2018] NZHC 2044 where Lang J adopted a similar procedure.where they went to school and what drugs they took. After a while the boys left andyou stayed behind.[9] C subsequently returned to the shed and located a note that you had left askingwhether C would like to meet up. You left your telephone number on the note. C thenmade contact with you and you arranged to meet up back at the abandoned shed. Youmet up on 23 January 2019. Once inside the shed you wired the door shut to ensurethat you were not disturbed, and perhaps to ensure that C could not leave. Youprepared the methamphetamine you had brought with you and showed C how to smokeit from the pipe. You encouraged C to smoke from the pipe and he did. Together yousmoked methamphetamine for about an hour. During this time you discussed yoursexual orientation and identified yourself as bisexual.[10] At some point in the conversation you asked C whether he had ever receivedoral sex from a man before and offered to perform oral sex on him. C accepted youroffer and oral sex ensued. Following this you both continued to smokemethamphetamine and you asked C if he would like to perform oral sex on you. Cagreed, and again oral sex ensued. After this you smoked more methamphetaminebefore leaving the shed. Later that same day you texted C asking him to keep theincident "between us".[11] Approximately a week later, on 29 January 2019, you texted C advising himthat you might have a buyer for some jewellery C had stolen in a burglary the monthprior. On 14 February 2019 you made arrangements to meet C so that you couldcollect the jewellery and take it to the buyer. However, later that day you advised Cthat the buyer had been "busted" with stolen jewellery. You did not see C again.Personal circumstances – age – life experience[12] Mr Edgerton, you are 53 years old. You report experiencing grooming andsexual assault at a young age and attribute your subsequent use of drugs and alcoholas a mechanism to cope with this. At the age of 18 you committed your first seriousoffence and in 1985 were convicted of murder and sentenced to life imprisonment. InApril 1994 you were released on parole. Following the end of a significant intimaterelationship in 2009 you committed your second serious offence in 2009 and werereturned to prison. You were again paroled in 2016 but following the breakdown ofyour relationship with your brother you turned to drugs, alcohol and gambling and in2019 engaged in the current offending. This illustrates that throughout your life youhave struggled with your sexuality and with rejection. You have coped with this byusing illicit substances. On each occasion when you have seemingly felt rejected youhave resorted to serious criminal conduct.Victim impact statements[13] The victim impact statements have been received from C's mother and hisaunt. Both statements record that your offending has had a lasting negative impact onC who is described as changing from an adventurous, happy-go-lucky young man tosomebody who is withdrawn, depressed and battling low self-esteem. C is also saidto suffer from nightmares, anxiety, depression, mood swings, panic attacks, weightloss, and suicidal thoughts. It is clear that your offending has resulted in significantharm to C.[14] Not only has your offending impacted C, it has had widespread impact on hisfamily who suffer feelings of guilt and self-blame. Both C's mother and aunt reportthat their lives will never be the same again; that they constantly worry about C andhave to expend a great deal of resources to ensure he is under constant supervision.Pre-sentence report[15] The pre-sentence report was prepared by the Department of Correctionswithout your input as you refused to participate. It records that you have been grantedlife parole on two occasions with both periods coming to an end due to serious sexualand violence related offending. Your compliance on parole was deemed satisfactory,however, the report writer is of the view that it was fraught with manipulation,reporting that on multiple occasions you reported your abstinence from drugs and onanother occasion declined to undergo a drug test as you had taken unprescribedcodeine for hernia pain. The report writer says that these were tactics that you used toallow you to continue engaging in drug use. The report also records that at your recallhearing you largely blamed your offending on the inability of Corrections to provideyou with adequate access to treatment. On account of this, you are assessed as beingunmotivated to change and deemed to be a high risk of reoffending and a very highrisk of harm. The report recommends that a sentence of preventive detention isappropriate.Crown submissions[16] Mr Williams, for the Crown, submits that a sentence of preventive detentionought to be imposed on the sexual connection charge, with a minimum period ofimprisonment (MPI) of five years, to be served concurrently with the sentence of lifeimprisonment previously imposed for murder.[17] In the alternative, if the Court finds that a finite sentence is appropriate, that astarting point of four years ought to be adopted for the sexual connection charge, thatthis should then be uplifted by one year for the charge of supplying methamphetamine,by a further six months for the receiving charge and a final six months to reflect ahistory of prior convictions. This amounts to an overall starting point of six years'imprisonment. Mr Williams says there are no mitigating factors but acknowledgesthat you are entitled to a 25 per cent discount for your guilty pleas. This would resultin a finite sentence of four and a half years' imprisonment. If a finite sentence isimposed, Mr Williams says that you should be required to serve a minimum term oftwo thirds of this sentence.Defence submissions[18] Your counsel, Ms Allen, accepts that a sentence of imprisonment is inevitable,however, she says that preventive detention is not warranted. Ms Allen submits thaton the lead charge of sexual connection a starting point of three and a half years'imprisonment should be adopted and that an uplift of 12 months is appropriate toreflect both the supply and receiving charges. She also accepts that an uplift of nogreater than six months is appropriate to reflect your prior offending. She agrees thatthere are no relevant mitigating factors relevant to you or your offending, but that youare entitled to a discount of 25 per cent to reflect your early guilty pleas. This resultsin an end sentence of three years and nine months' imprisonment. If a finite sentenceis imposed, Ms Allen says that an MPI is not warranted given that you are alreadysubject to an indefinite sentence for the earlier murder conviction.Approach to sentencing[19] In sentencing you I must impose a sentence that holds you accountable for youroffending, denounces your conduct, deters you from future similar offending and isfacilitative of rehabilitation. I must also impose the least restrictive sentence available.Given the serious nature of the charges you face a sentence of imprisonment isinevitable. The key determination for this Court is whether a sentence of preventivedetention is necessary to protect the community from the ongoing risk you pose.[20] In determining whether a sentence of preventive detention is necessary I mustfirst, in accordance with the usual approach to sentencing, assess the finite sentencethat reflects the totality of your offending. Then, if that end sentence is insufficient toprotect the public, I must determine whether the discretionary power to impose asentence of preventive detention should be exercised. In first assessing the appropriatefinite sentence I must follow a three-stage approach; I must adopt a starting point thatis reflective of the totality of your offending; I must then adjust this starting point toreflect aggravating or mitigating factors personal to you; lastly, I must provide adeduction for your guilty pleas. I must also consider whether an MPI beyond thedefault one third ought to be imposed.Discussion[21] In the sentencing discussion I do not propose to read out the case footnotes orany footnote reference to the cases.[22] Mr Edgerton, you appear for sentence on three charges, those being the chargeof sexual connection with a young person, receiving stolen property and supplyingmethamphetamine and the charge of breaching release conditions. The lead charge,that being the most serious, is the charge of sexual connection. There is no tariffjudgment for sexual connection with a young person, however, in R v H the Court ofAppeal provided guidance on appropriate starting points, stating, "the starting point could be fixed at four years' imprisonment".6 This guidance has been adopted in arange of Court of Appeal cases,7 and in R v Johnson the Court stated:8[17] We consider that the four year starting point in R v H is still a usefulreference point in relation to sentencing for sexual connection with youngpersons, where the offending shares features present in that case. Particularaggravating features in R v H were abuse of trust, a significant age gapbetween the offender and the victim, full penetrative sex on a number ofoccasions, and significant adverse effects on the victim. Where aggravatingfeatures in R v H are present, a starting point of four years may be appropriate.Other aggravating factors not present in R v H may be seen as increasingculpability. Such features could include grooming, or abusive and demeaningbehaviour. Where there has been no breach of trust as in R v H but the sameaggravating features are present, a lower starting point will be appropriate. Adifferent combination of aggravating and mitigating factors might produce yetanother result. It follows that the starting point of four years should be seenas no more than a mid-point in the range of offending where there is moderateculpability.[23] Accordingly, the four year starting point referred to in R v H is merely aguideline and the ultimate starting point will fall within a reasonable vicinity of thispoint depending on the aggravating features deemed to be present in the offending inquestion. With regard to R v H Mr Williams submits that the relevant aggravatingfeatures include vulnerability of the victim, premeditation, multiple offences and thedegree of harm caused by the offending. Ms Allen is largely in agreement with thesefactors, however she notes the age disparity between you and C, you being 52 yearsof age at the time of the offending and C being only 15. That is another aggravatingfactor with which I agree. The Crown refers to multiple sexual acts as forming anaggravating factor of the offending which I accept. It is evident that unlike in R v Hhere there was no abuse of trust, there is only one incident involving multiple acts, andpenetrative sex did not take place. However, the victim was particularly vulnerablegiven the age disparity and the fact that you had wired the doors shut and supplied himwith methamphetamine. As such, a starting point of between three and half to fourand a half years' imprisonment is appropriate.6 R v H [2008] NZCA 237.7 R v Brunie [2009] NZCA 300; R v Burdett [2009] NZCA 366; R v Davidson [2008] NZCA 484; Rv Misileki [2008] NZAC 513.8 R v Johnson [2010] NZCA 168.[24] Counsel for the Crown also refers me to R v AM, the tariff decision for sexualviolation.9 Mr Williams says that had the charge been filed pursuant to ss 128 and128A it would have fallen within band one, warranting a starting point of between sixand eight years. Although that may be the case, I do not find the comparisonparticularly helpful given the bands apply only to sexual violation, a charge involvingcoercion and with a much higher maximum penalty. As such, I prefer to have recourseto the various cases both Mr Williams and Ms Allen have referred me to involvingsexual conduct with a child under 16 years. These cases provide a useful cross-checkto the approach in R v H.[25] I have had recourse to: R v Anand,10 R v Page,11 R v Ball,12 Jackson v CrownLaw Office,13 and Police v Ngawhika,14 where starting points of between three and ahalf and five years' imprisonment were adopted. Mr Williams contends that the9 R v AM [2010] NZCA 114, [2010] NZLR 750.10 Anand v R [2015] NZHC 397: in this case Mr Anand was convicted of sexual connection with ayoung person and two charges of doing an indecent act on a young person. Mr Anand offendedagainst a 13 year old girl, stroking her body and squeezing her breasts. After the initial incidentthey communicated regularly via text message and spoke on the phone. The conversations becamesexually explicit and Mr Anand encouraged the victim to participate in phone sex. During thisperiod the two met on multiple occasions. When they were together Mr Anand touched the victimaround her genital area and touched and sucked her breasts. On two occasions the offendingescalated to oral sexual connection where he put his penis in her mouth and moved her head backand forth until he ejaculated. For the charge of sexual connection, the Court adopted a startingpoint of three and a half years' imprisonment.11 R v Page [2016] NZHC 2762: Mr Page was convicted on six charges of sexual conduct with aperson under the age of 16; four related to sexual connection and two related to doing an indecentact. Mr Page met the victim when he was 10 years old and would buy him cigarettes and give himmoney for alcohol. When the victim was 12 he watched pornography with Mr Page and Mr Pageplaced his hand on the victim's penis and began to masturbate him. He then performed oral sexon the victim before engaging in anal sex. When the victim was 14 he visited Mr Page's houseand again Mr Page engaged in anal sex with the victim. For the next four years Mr Page continuedto ask the victim for sex but he refused. On the final occasion Mr Page and the victim watchedpornography at his house, Mr Page began masturbating the victim, each party performed oral sexon the other and then they engaged in anal sex. For the totality of Mr Page's offending he receiveda starting point of five years' imprisonment.12 Ball v R [2011] NZCA 43: Mr Ball was convicted on two charges of sexual connection. Theoffending in this case arose when the victim stayed over night at a friend's house, where Mr Ballwas also staying. While Mr Ball and the 14 year old complainant were watching TV Mr Ballpersuaded the victim to allow him to suck his penis and then for the victim to suck Mr Ball's penis.The activity ceased when Mr Ball heard somebody coming. For his offending Mr Ball received astarting point of three and half years imprisonment.13 Jackson v Crown Law Office [2014] NZHC 2425: Mr Jackson met the 13 year old victim at anANZAC day service and gave her is phone number. They began communicating and over timethe texts became increasingly intimate and involved exchanging intimate photographs. MrJackson travelled from Blenheim to Nelson and took part in sexual activity with the victim on atleast five occasions. The sexual activity involved vaginal, oral and anal sex and the victimperforming oral sex on Mr Jackson. The starting point adopted was four years' imprisonment.14 Police v Ngawhika DC Whakatane CRI-2009-087-000481, 6 May 2009.current offending is of equivalent seriousness to that in Anand and Page but moreserious than that in Ball. On the other hand, your counsel, Ms Allen, contends thatyour offending is comparable to that in Ball and Ngawhika but less serious than thatin Anand, Page and Jackson. I agree with Ms Allen. Anand, Page and Jackson areeach illustrative of offending of a more serious nature, where each case involvedoffending over a longer period of time and featured grooming to varying degrees, afactor that is not present in the current offending. Jackson and Page also involvedpenetration, again, a factor not present in the current offending. Rather, I view themost comparable case to be that of Ball where a starting point of three and a half years'imprisonment was adopted. However, I do see the current offending as being slightlymore serious than that in Ball as it involved premeditation and a greater degree ofharm.[26] Having regard to R v H and the various comparable cases I adopt a startingpoint of three years nine months' imprisonment. I then uplift this by 18 months toreflect the additional methamphetamine and receiving offending and the breach ofrelease conditions, and a further six months to take account of your prior offending.This results in an end starting point of 69 months' imprisonment.Mitigating factors and guilty plea[27] Both counsel agree that there are no relevant mitigating factors. Accordingly,there are no deductions that result in this respect. However, counsel are agreed thatyou entered a guilty plea at the earliest possible stage and therefore are entitled to thefull guilty plea deduction of 25 per cent. This results in an end sentence of four yearsand four months' imprisonment.MPI[28] Having arrived at an end sentence, the next step is to assess whether amandatory period of imprisonment is warranted. Pursuant to s 86 of the SentencingAct 2002, this Court may order that an offender serve a minimum period ofimprisonment beyond the default period; that being one third of the finite sentence.Such an order may only be made where the Court is satisfied the default period wouldbe insufficient to satisfy any of the following purposes: holding the offenderaccountable for the harm done to the victim; denouncing the offending conduct;deterring the offender or others from committing similar offences; or protecting thecommunity.[29] In regard to the finite sentence I have adopted, if no order is made under s 86you will be eligible for parole after serving approximately one year and four monthsof your sentence. Having regard to the negative consequences of your offending onboth the victim and his family, as well as the risk you pose to the community, I do notconsider the default period sufficient. Mr Williams submits that an MPI of two thirds,the maximum available under s 86, is necessary to satisfy these purposes. I agree.[30] Accordingly, the end sentence I would arrive at for a finite sentence is fouryears and four months' imprisonment with an MPI of two thirds, rendering you eligiblefor parole after approximately two years and 10 months.Preventive detention[31] Having arrived at this end sentence, the question for the Court is whether thesentence is sufficient to protect the community from the ongoing risk of offending youpose, or, whether a sentence of preventive detention is necessary. Preventive detentionis not a sentence of last resort. It is a protective sentence to be imposed if and whennecessary.15 There is no doubt that a sentence of preventive detention is availablewhere the offender is already subject to a sentence of life imprisonment.16 Where thisis the case, whether preventive detention ought to be imposed is to be considered on aprincipled basis and cannot be "driven solely by the practical utility of the sentence".17In other words, I am to consider the possibility of preventive detention separately fromthe life sentence you remain subject to.[32] Under s 87(2) of the Sentencing Act, I may impose a sentence of preventivedetention where, as in your case, an offender has been convicted of a qualifying sexualoffence and was 18 years of age or over at the time of committing the offence. I must alsobe satisfied that the offender is likely to commit another qualifying offence if the person15 R v C [2003] 1 NZLR 30 (CA) at [6].16 R v Williams [2019] NZGC 2832; Mackrell v R (1998) 16 CRNZ 1 (CA).17 T (CA43/2013) v R [2013] NZCA 497.is released at the sentence expiry date. In making this assessment I must have regard tothe following five factors:18(a) Any pattern of serious offending disclosed by your history;(b) The seriousness of the harm to the community caused by your offending;(c) Information indicating a tendency to commit serious offences in the future;(d) The absence or failure of efforts by you to address the causes of youroffending; and(e) The principle that a lengthy determinate sentence is preferable if thisprovides adequate protection for society.[33] I must also consider reports from at least two appropriate health assessors.19Here, I have received reports from forensic psychiatrists; Dr Jaques andDr Karayiannis, as well as reports from clinical psychologists; Ms Anja Isaacson andDr Sarah de Wattignar. Today I have also received a further updating report ofMs Isaacson.[34] Ms Allen has submitted that I should prefer the reports of Ms Isaacson overthose of the three other health assessors as her reports are said to give a broader andmore personal insight, and she is said to have spent more time with you than the otherhealth assessors. Although I see the time Ms Isaacson spent with you as relevant tothe weight I ought to ascribe to the various health assessors' reports, it is but onerelevant factor among many. Further, the fact that other experts may have spent lesstime with you does not necessarily mean their advice is less helpful or relevant. Thereis nothing here to suggest that any expert who assessed you has cut corners. Alsorelevant is the fact that the reports of Drs de Wattignar, Jaques and Karayiannis arelargely in agreement with one another and it is Ms Isaacson's reports that appear tostand in contrast to the opinion of the majority. As a result, I have considered each of18 Sentencing Act 2002, s 87(4).19 Section 88(1)(b).the heath assessors' reports carefully and shall indicate throughout the opinions I haverelied on.Pattern of serious offending[35] The first of the five factors I must consider is whether you have exhibited apattern of serious offending. Crown counsel, your own counsel and the majority ofthe health assessors (with the exception of Ms Isaacson) agree there is a pattern ofserious sexual offending emerging from your conviction history.[36] In 1985 you were convicted of murder and sentenced to life imprisonment.This offending arose when another young man with whom you had been smokingcannabis and socialising with rejected your sexual advances. You becameoverwhelmed with a desire to kill him and engaged in a brutal and violent attack,stabbing the victim in the throat and through the temple. This offending although notexplicitly relevant to establishing a pattern of offending does possess sexual overturessimilar to those in your subsequent offending.[37] In 1994 you were released on parole. Whilst on parole, in 2009, you committeda sexual offence. You were convicted of indecent assault on a male between the agesof 12 and 16, and assault with a weapon. That offending involved a 14 year old malewho had agreed to return to your address. Once at your address you supplied thevictim with alcohol and watched pornographic movies. You then exposed yourgenitals to the victim who was lying next to you and began to rub the victim's genitalsthrough his clothing. You asked the victim if you could perform oral sex on him andhe refused to allow this. When the victim tried to leave you hit him over the head witha wooden mallet. You were recalled to prison and then in 2016 were granted parolefor a second time. Whilst on parole you committed the current offending for whichyou appear for sentence.[38] With regard to the 2009 offending and the current offending, it is evident thatboth sets of offending involved sexual conduct with a young male under the age of 16in circumstances where you had supplied the victim with an illicit substance andwhere, in the 2009 offending, you inflicted violence on the victim once he refused tocomply with and accept your sexual advances, just as you had previously done in theoffending carried out in 1985. Having regard to this and the health assessors' reportsI consider the first factor is made out.Seriousness of the harm to the community caused by the offending[39] Counsel have also agreed that your offending has caused significant emotionaland psychological harm to the victim as well as widespread harm to his family whocontinue to struggle with what has happened and with how best to help the victim. Iconsider this factor is also made out.Information indicating a tendency to commit a serious qualifying offence in thefuture[40] The reports from both Dr Jacques and Dr Karayiannis identify that you possesssubstance abuse disorder, meaning that you are unable to control your drug use andcontinue to engage in drug use despite adverse consequences. This substance abuse issaid to be closely associated with your offending. Dr Jacques says that you have notaddressed any of the factors that have contributed to your offending and says that thereis a high risk of you committing a similar qualifying offence against males aged 12-16 years in the future. Similarly, Dr Karayiannis assesses that you pose a high-moderate risk of both violence and sexual offending in the future. He puts a figure ofthis risk, determining there is a 39 per cent chance of sexual recidivism within fiveyears. Doctor de Wattignar concurs with this assessment, finding you to be a high riskof sexual recidivism.[41] Your counsel acknowledges that you present as a medium-high risk ofoffending in future but says that this risk is likely to reduce if you receive the treatmentyou need. She also contends, in reliance on the reports of Ms Isaacson, that your riskof reoffending will reduce in future on account of your age. Ms Isaacson reports thatif released after the age of 60 your risk of offending will halve. Dr Jacques andDr Karayiannis are hesitant to opine that your risk of offending will decline with agebut Dr de Wattignar goes as far as stating that in your case there is no suggestion thatyour risk of offending will decline with age, given your recent offending at the age of52. It is important to note that in this assessment I am considering your risk ofcommitting a qualifying offence following the end of the finite sentence I havedetermined appropriate, that being four years and four months' imprisonment. Thismeans I am to assess the risk that you would pose at age 57. Thus, althoughMs Isaacson may be correct in assessing that your risk of offending will dramaticallydecrease after age 60, that is irrelevant to my assessment. Rather, each of the healthassessors opine that up until the age of 60 you will continue to pose a medium-highrisk of sexual offending.[42] On this basis I am satisfied that you pose a high risk of reoffending and thatthis risk is not adequately mitigated by the process of aging. In relation to thatreoffending again, I emphasise it is a qualifying offence.[43] For completeness I note that on the face of it your offending has an appearanceof decreasing in severity, and this was raised in the report of Ms Isaacson whosuggested that this was indicative of a reduced risk of offending. However, your firstserious offence involved a situation where the victim had rejected your sexualadvances and you responded with extreme violence that resulted in a conviction formurder. Your second set of serious offending involved charges of assault with aweapon and doing an indecent assault on a young person, who had also rejected yoursexual advances. Again the offending involved violence albeit to a lesser degree. Thecurrent offending however, did not involve any violence and when seen in light ofyour other offending may represent a decrease in severity. However, I have beenunable to give any meaningful weight to this notion, as in your recent offending theabsence of violence may simply be a result of the fact that here, unlike with previousoffences, your sexual advances were not rejected by the victim. Ms Isaacson, in herassessment of the risk you posed failed to acknowledge the impact of the victim'sacquiescence on the severity of the offending and to me this oversight renders herassessment flawed. Accordingly, I have treated the absence of physical violence inthe present offending as a neutral factor rather than an indication there has been adecrease in the severity of your offending.[44] I note that as part of the preparation for the current offending you had wiredthe door of the shed so that it could not be easily opened. This may indicateforethought on your part to stop others from entering the shed unexpectedly, or it couldindicate an intention to thwart the victim's escape had he chosen to leave the shed. Iam in no position to say which alternative is correct, maybe both are. Accordingly Ihave also treated the restriction on the shed door as a neutral factor relevant to theseverity of the offending and to my assessment of the risk you pose of reoffending.Efforts by the offender to address the cause of the offending[45] Mr Edgerton, you have not partaken in any substantive treatment to addressyour substance abuse or your sexual offending. At various times you have engaged incounselling, some of which you say has been helpful and some of which hasn't. Forthe purposes of today's sentencing the Department of Corrections attempted to contactyou to engage in a pre-sentence report. You refused. That report indicated that youwere unmotivated to change and that you have blamed your lack of treatment onCorrections.[46] Dr Jacques says that you have expressed a willingness to engage in treatmentprogrammes but to date have not addressed the causes of your offending. He alsoreports that you blame this on Corrections. Similarly, Dr Karayiannis notes that youexpressed interest in participating in the Te Piriti sexual offender's programme but thatyou were told you did not fit the profile to be eligible.[47] Ms Allen submits that the overarching driver of your offending is your failureto address your sexuality and the sexual trauma you experienced as a young person,and that you ought to be given an opportunity to do so having been deprived of anysuch opportunity thus far.[48] It is unclear to me to what degree the responsibility for your failure to engagein treatment lies with you, and to what degree it lies with the Department ofCorrections. Although you appear to be willing to engage in rehabilitation and expresstrue disappointment with yourself, this is to be assessed in light of the fact that you arereported to lack empathy for the victims of your offending and to possess limitedremorse. Doctor de Wattignar in particular questioned the sincerity in your ability totake responsibility for your offending and opined that you would be unlikely to makesignificant gains in treatment at this stage in your life given your complex needs. Toall of this I add that today you prepared a letter for the family of the victim. In thatletter you profusely express your emotional remorse and regret for what you havedone, and you say that you do not have the courage to stand before the family todaybecause of the shame and embarrassment you feel. However, in my view, had youtruly felt remorse and regret for the harm your actions have caused to C, you wouldhave come forward today; you would have been prepared to face his family. The typeof expression of regret that you have provided to me when viewed against yourconduct in deciding not to be present in this Courtroom, strikes me as similar to theother behaviours that have caused persons such as Dr de Wattignar to question thesincerity of your expressed wishes to take responsibility for your offending. I have noconfidence that you are at a stage where you are willing to properly and truly takeresponsibility for your offending.[49] Having regard to the information before me it is difficult to make any definitiveconclusions regarding your efforts and willingness to engage in treatment. Althoughyou may have been prevented from participating in Te Piriti, the Department's sexualoffending unit, your general attitude towards your offending including your ongoingrefusal to acknowledge your sexual proclivities and your tendency to minimise,externalise and deny aspects of your previous offending, as well as your refusal toacknowledge the need to address your substance abuse, violence and emotionalregulation in response to rejection, all indicate that at least in part you are responsiblefor the failure to address the causes of your offending. I am also sceptical of yourrecent desire to engage in treatment in light of the health assessors' warnings and yourhistory. Accordingly, I am of the mind that you have had ample opportunity to at leastaddress some of the causative factors of your offending but have elected not to do so.A choice that no doubt played a significant role in your current offending.Is a lengthy determinate sentence sufficient?[50] The final factor I am to consider is whether a lengthy determinate sentencewould adequately protect the community. Here, Dr Jacques says that although youreport wanting to engage in treatment you have a history of providing false informationto parole officers and deny your sexual deviancy and drug problems. As a result, hesays that a determinate sentence may not be sufficient to reduce your risk of offendingas it will not require you to engage in rehabilitation, like a sentence of preventivedetention would. Dr Karayiannis similarly notes that an indeterminate sentence maybe valuable to ensure that you engage in the necessary treatment. They both,emphasise the importance of further treatment to address the causes of your offending,and Dr de Wattignar opines that you will require lifelong support.[51] In contrast to the other health assessors, Ms Isaacson is of the view that anindeterminate sentence will in fact make it more difficult for you to obtain specialisedtreatment, and as a result a finite sentence is appropriate. She also opines that "alengthy prison sentence may provide adequate protection to the community,particularly if relevant treatment is provided to Mr Edgerton". This opinion isbased primarily on the position that your risk of reoffending will have dramaticallydecreased by the time you are 60. However, with all due respect, Ms Isaacson'sopinion is flawed as it is built on the false premise that this Court can impose a lengthyfinite sentence of imprisonment on you. Although a lengthy finite sentence ofimprisonment may provide the necessary protection for the community, it is not anoption available to this Court given the nature of your offending. The appropriatesentences available to this Court, as put forth by counsel, ranged from three years andnine months to four years and six months imprisonment. Even if the maximumproposed sentence were imposed and served in full, you would only be aged 57 at thetime you were eligible for release, or in your case, parole. A lengthy finite sentencethat places you in the low risk category – that is 60 years or more – is outside therealm of possibility for this Court.[52] In these circumstances I am persuaded by the opinions of Drs Jacques,Karayiannis and de Wattignar, that a sentence of preventive detention is necessary.This is in fact one of the types of cases that preventive detention was intended toaddress, namely, a case where the appropriate finite sentence is incapable ofadequately protecting the public or addressing the offender's rehabilitative needs. Ifindeed your risk of sexual offending is to decrease with appropriate treatment and withage, the Parole Board will be best placed to make that assessment at the appropriatetime and grant you parole.[53] Ms Allen has submitted that the possibility of an extended supervision ordersupports the imposition of a finite sentence and should tip the scales against a sentenceof preventive detention. Although that is true, whether or not the possibility of anextended supervision order (ESO) will result in a finite sentence will turn on the factsof the individual case, and in this case I am not satisfied that the possibility of an ESOis sufficient to protect the community. It has been identified that you pose a high riskof reoffending in terms of committing a qualifying offence and that this risk is unlikelyto be sufficiently mitigated with age at the time you would be eligible for release fromthat sentence. As a result, the risk you pose to the community both now and into theforeseeable future is substantial. Also, I am not satisfied that an ESO will be capableof protecting the community at the time you become eligible for release, on accountof your previous history on parole. Following your conviction for murder you werereleased on parole and reoffended. You returned to prison, were released from paroleand then again reoffended. The same cycle then repeated and gave rise to the currentoffending. Not only did you fail to comply by reoffending, you actively manipulatedand deceived your Parole Officer so that you could continue to engage in substanceabuse, a behaviour that has been a causative link to your offending. In short, I cannotbe confident that you will comply with the strict requirements of an ESO, and theconsequences of your failure to comply could be severe for the community, as it couldbe the commission of another qualifying offence. Thus, in your case the possibility ofan ESO cannot tip the scales in favour of a finite sentence.[54] Accordingly, I am satisfied that a sentence of preventive detention is necessary.Although the absence of physical violence towards the victim sets this offending apartfrom the earlier offending, I have already explained why I see this as a neutral factorin your case. Even if I took the view the offending here is less severe due to greaterrestraint on your part than in the past, this factor would be substantially outweighedby the high risk of re-offending you pose, your lack of engagement in treatment andthe potential positive impact an indeterminate sentence requiring rehabilitation willhave on you. I arrive at this decision after careful consideration of all the materialbefore me and with a view that I must adopt the least restrictive sentence thatadequately protects the public and promotes your rehabilitation.[55] As I have adopted a sentence of preventive detention, s 89 of the SentencingAct 2002 requires me to impose an MPI of not less than five years. This period mustbe the longer of either the minimum period required to reflect the gravity of youroffending, or the minimum period required for the purposes of the safety of thecommunity. In your case the Crown submits an MPI of five years would be sufficient.I am also of the view that an MPI of five years is sufficient to address the purposes ofs 89. At that point the Parole Board can address whether you should be released ornot based on an updated assessment of the risk you pose in relation to qualifyingoffences.Result[56] Mr Edgerton, on the charge of sexual conduct with a young person betweenthe ages of 12 and 16 you are sentenced to preventive detention with an MPI of fiveyears. This sentence is to be served concurrently with the sentence of lifeimprisonment you have previously received for murder.[57] On the charge of receiving you are sentenced to 18 months' imprisonment.[58] On the charge of supply of methamphetamine, you are sentenced to 18 months'imprisonment.[59] On the charge of breach of release conditions you are sentenced to three months'imprisonment.[60] Each of these finite sentences are to be served concurrently with the sentence ofpreventive detention.[61] Because you have committed a qualifying offence under the Child Protection(Child Sex Offender Government Agency Registration) Act 2016, you are classified as aregistrable offender. Accordingly, your name will be entered on the Child Sex OffenderRegister as soon as is practicable.Duffy J