R v TAIMO [2019] NZCA 427

R v TAIMO [2019] NZCA 427 [12 September 2019]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY COMPLAINANTS/ PERSONSUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [ORNAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY SS 203AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA96/2019[2019] NZCA 427BETWEEN THE QUEENAppellantAND ALOSIO TAIMORespondentHearing: 31 July 2019Court: Miller, Peters and Woolford JJCounsel: N E Walker and J J Rhodes for the AppellantP Le'Au'Anae for the RespondentJudgment: 12 September 2019 at 11.30 amJUDGMENT OF THE COURTThe Solicitor-General's appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] On 22 February 2019, Alosio Taimo (the respondent) was sentenced to 22years' imprisonment with a minimum period of imprisonment of 10 years, on a largenumber of sexual crimes committed over a period of almost 30 years against boysunder the age of 16.1 The Crown now appeals against the sentence. It saysthe respondent should have been sentenced to preventive detention.[2] The Crown submits that a sentence of preventive detention is necessary toprotect the community from the respondent, who poses a significant and on-going riskto the safety of its members. The Crown submits that the sentencing Judge understatedthe risk of reoffending posed by the respondent and overstated his ability torehabilitate. These errors are said to have led the sentencing Judge to err in principleby favouring a determinate term of imprisonment.The trial[3] Following a nine and a half week trial in the High Court at Auckland,the respondent was convicted of 95 charges against 17 victims, comprising:(a) 25 charges of sexual violation by unlawful sexual connection;(b) 20 charges of committing an indecent act on a child under 12;(c) 43 charges of committing indecent acts on a young person under 16;(d) Seven charges of indecency with a boy under 12; and(e) 11 charges of indecency with a boy aged between 12 and 16.52 of the charges were representative.[4] In summary, the respondent sexually assaulted 17 young boys between the agesof nine and 16 years. The offending took place over a period of almost 30 yearsbetween 1987, shortly after he arrived in New Zealand from Samoa, and August 2016,when a formal complaint was finally made and he was arrested by police. Fifteen ofthe boys were sexually assaulted on multiple occasions, in some cases, almost daily,over a period of months and years. Nine were victims of sexual violation.1 R v Taimo [2019] NZHC 234.[5] The respondent adapted almost every environment he occupied to facilitate hisoffending, be it his home, the victim's homes, his workplace or vehicles.Additionally, the respondent exploited his standing within his community in order togenerate and sustain opportunities for sexual abuse. The sentencing Judge found:[111] You abused these boys from a platform of trust within yourcommunity. Parents entrusted their sons to your care because you falsely heldyourself out as a figure of responsibility. You then used your position to offendagainst your victims. Worse still, you took advantage of Samoan culturalnorms to promote a code of silence which enabled you to continue youroffending undetected. These boys looked up to you, having been taught froman early age to respect their elders. As a Samoan you knew that and youcynically exploited it.Offending between 1987 and 2007[6] The respondent sexually assaulted seven of his victims between 1987 and2007. He was related to five of these victims. Others he came to know through hiscommunity work or neighbourhood. As the sentencing Judge summarised,the offending against these victims involved mutual masturbation, often after they hadmassaged the respondent's legs using baby oil, as well as mutual oral sex and oneunsuccessful attempt at anal sex. In most cases it occurred almost daily over a numberof months or years. Some of the young boys were bribed, others were threatened.Offending between 2009 and 2016[7] In 2008 the respondent started working at a school in Clendon. His roleincluded coaching and managing sports teams, assisting in the school's physicaleducation programmes and later co-ordinating all of the school's senior sports teamsand activities. The respondent was also responsible for the custody and managementof the school's sports shed, where sports equipment was stored. Each year he waspersonally involved in selecting a small group of boys to act as sports monitors and toassist him with his duties.[8] The respondent was also involved in a rugby club in Karaka. From about 2009he began recruiting students from the school where he worked to play for this rugbyclub. Between 2009 and 2016 he also provided assistance to players from the school,including picking them up and dropping them off for rugby training and games.Many of the students continued to have contact with the respondent and played forthe Karaka Club after leaving the school where the respondent worked.[9] It was through these roles the respondent came to know the 10 younger victimsover the next eight years. As the sentencing Judge found:[31] It became routine for the boys to spend nights at your home, especiallybefore games. Parents trusted you with their sons. They looked up to you.They saw you as a leader and mentor; a vehicle by which their aspirations andtheir children's dreams might be realised.[32] Often, boys would stay over at your house after training. You pliedthem with food and drink; treats which were rare in their experience.You indulged them with access to video games, computers and phones.You regularly offered to help their parents with their care and purchased themrugby gear and school uniforms. It is not surprising that, despite the abuseyou subjected them to, so many of the boys returned. You knew they would.They wanted to hang out with their friends; they wanted to play on the gamesthat you provided. In that way your home became something of a magnet.Parents so trusted you that on occasions when their sons resisted yourinvitations because of the sexual abuse you subjected them to, their parentsinsisted they go; lest they cause you offence. They even sent boys' siblings tostay with you, such was the unconditional trust that they reposed in you.[10] The respondent's sexual abuse of these young boys was of a similar kind tothat of his first seven victims. It included mutual masturbation, often with baby oil,and mutual oral sex. It also involved several unsuccessful attempts at anal intercourse,and two occasions on which the respondent achieved penetration. Most ofthe offending occurred at the respondent's house, when he would call the boys whostayed at his house into his bedroom, one-by-one, to be sexually assaulted. It alsofrequently occurred in the school sports shed and the respondent's car.Health assessors' reports[11] For the purpose of sentencing, the Crown obtained two health assessor'sreports — the first dated 14 November 2018 from a consultant psychiatrist, Dr KrishnaPillai, and a second dated 3 December 2018 from a senior clinical psychologist,Ms Michelle Coutinho. These reports were prepared under s 88 of the Sentencing Act2002 and assess the likelihood of the respondent reoffending.Pillai report[12] Dr Pillai found no evidence of a mental illness or significant psychologicaldisturbance in the respondent, but was of the opinion that he met the standard criteriafor a diagnosis of paedophilia. In assessing the respondent's risk of sexualre-offending, Dr Pillai used three standardised tools of sexual risk assessment —the Static-99R, which relies only upon historical data; the SVR-20, which relies ona mixture of historical data, offence related material, and current clinical(bio-psycho-social) factors; and the Stable 2007, which considers stable dynamic(slowly changeable) variables.[13] Using the Static-99R, the respondent scored -3 for being aged over 60 years atthe time of future release. He scored one point for having unrelated victims andone point for having male victims. Overall this indicated that the respondent sharedcharacteristics of a group of offenders at low risk of sexual recidivism. This appearedcounterintuitive to Dr Pillai, but he said it is perhaps best conceptualised asthe respondent sharing characteristics with a group of offenders who are at low risk ofbeing detected as offending.[14] Using the SVR-20, the respondent had strong evidence of sexual deviationbeing a sustained pattern of sexual motivation present across a large proportion of hislife span. That is to say, he had strong evidence of homosexual paedophilia.[15] Dr Pillai opined, however, that the respondent had been disposed to abusingothers because he too had been the victim of childhood abuse. Otherwise he did nothave any significant background risk factors for future offending. He had a stableoccupational history and had sustained good familial relationships. He did not haveproblems with substance abuse or violence. He was not known to have previouslybreached supervision.[16] Moreover, the pattern of his behaviour was extremely stereotyped and it wasof note that no weapons, threats of death or physical harm had befallen the victims.The respondent had used more subtle, but equally as effective, emotional manipulationto secure the co-operation of his victims.[17] Further, Dr Pillai said it was worth noting that the respondent partiallyacknowledged his sexual offending and appeared to acknowledge some harm he hadcaused not only to victims, but also to their families. The respondent had alsoindicated that he was willing to enter into any treatment that would assist him withpreventing him from acting in the same way again. Dr Pillai concluded thatthe Static-99R and SVR-20 appeared to converge on a finding that the respondent wasat low risk of future sexual offending.[18] On the other hand, when considering the stable dynamic factors ofthe Stable 2007, more significant risk factors were identified. These included a higherdegree of sexual pre-occupation, the fact that he had lived as a single person for morethan 25 years, his identification at an emotional level with children and intimacydeficits in relation to age-appropriate consenting partners, and his use of sexualbehaviour to cope with adversity. Evaluation of dynamic risk factors using the Stable2007 identified areas of concern for Dr Pillai, which would facilitate future offending.In his opinion, these dynamic factors, coupled with the diagnosis of paedophilia,which is difficult to treat from a clinical perspective, substantially raised therespondent's risk of recidivist sexual offending in the same manner. Dr Pillai'sconclusion was that "the overall risk should be considered at least moderate".[19] According to Dr Pillai, the respondent had conducted himself in a pro-social,reliable and consistent way to those around him, other than the areas of sexualoffending. This suggested strong motivational protection factors in the area of positiveattitudes towards authority, and sound management of work, leisure and finances.These important strengths could be utilised as part of a framework for long-term riskmanagement.Coutinho report[20] Ms Coutinho was of the opinion that the respondent had demonstrated a diverserange of sexual offending behaviour, which escalated over time. He persisted withthe abusive behaviour despite clear evidence of distress. His advancing age anddeteriorating health did not appear to have reduced his propensity for sexual offending.Ms Coutinho also used the same three standardised tools of sexual risk assessment asDr Pillai.[21] Using the Static-99R, the respondent's risk was assessed as low in view ofthe fact that he had no previous convictions for sexual or violent offending.Like Dr Pillai, Ms Coutinho said this score could be considered to be artificially lowin the context of 95 charges associated with his index offending, which remainedunreported to the Police for 30 years.[22] Using the SVR-20, Ms Coutinho opined that the respondent carried a moderateto high risk of sexual recidivism. This can be contrasted with Dr Pillai's finding thatthe respondent was at low risk of future sexual offending using both the Static-99Rand SVR-20. The significant risk factors identified by Ms Coutinho using the SVR-20were that the respondent was himself a victim of child sexual abuse, his extrememinimisation or denial, the high density offending, the escalation in frequency orseverity and his attitudes that supported or condoned the offences.[23] Ms Coutinho also found the respondent to be in the high risk group usingthe Stable 2007. The respondent had numerous pertinent risk-enhancing factors,including lacking capacity for relationship stability, emotionally identifying withchildren, lacking concern for others, offending opportunistically rather thanimpulsively, having poor problem-solving skills, having negative emotionality, havinga high sexual drive and sexual pre-occupation, using sex as a coping mechanism andhaving deviant sexual interest.[24] In addition to the three standardised tools of sexual risk assessment,Ms Coutinho also made reference to the Guidelines for the Assessment of ProtectiveFactors for Violence Risk (commonly referred to as SAPROF). Potential protectivefactors which may be relevant to the respondent included intelligence, motivation fortreatment, work, positive life goals and external control in a secure setting.Mr Coutinho was of the opinion that these protective factors, except for externalcontrol, would not offset or mitigate the significant risk factors earlier identified, butdid suggest that he would be able to engage with and benefit from treatment.[25] Ms Coutinho was of the view that the respondent could be considered at highrisk of sexual recidivism in a manner similar to his current offending on release intothe community in view of the entrenched nature of his behaviour. The respondentwould be likely to offend against pre-pubescent and early adolescent boys who wereknown to him in the context of unsupervised access.[26] Ms Coutinho's overall conclusion was that while the long term prediction ofrisk is inherently problematic, the measures used during assessment (i.e. Static-99,SVR-20 and Stable 2007) have a level of convergence in predicting that the respondentwould be at moderate to high risk of sexual re-offending. The entrenched nature ofthe respondent's offending which persisted despite repeatedly being confronted aboutit through the years, and which did not abate with advancing age or poor health,constituted an aggravating factor with respect to potential re-offending. These factorstaken together suggested that the respondent would be at high risk of sexuallyoffending in a similar manner following his release into the community.Sentencing decision[27] At the outset of his sentencing remarks, Moore J described the respondent'soffending as follows:[3] Your offending, however it is viewed, is unprecedented in thiscountry. The sheer scale is extraordinary, whether it is measured in the numberof charges, their seriousness, the number of victims, their tender age, theirvulnerability, the years over which your offending spanned; all committed inthe context of gross breaches of trust: boys who looked up to you; parents whoadmired and trusted you and turned to you for help and embraced you intotheir families; teachers and staff who never in their wildest dreams thoughtyou were capable of doing these dreadful things. Almost certainly that senseof trust and the standing in which you were held by so many allowed you tocommit these crimes over the nearly 30 years you did because you knewthe boys would never dare complain and even if they did they would never bebelieved; the words of a boy pitched against the reputation of a respectedsenior community leader.[28] After setting out the facts of the case, the Judge referred to the victim impactstatements. The Judge noted the trial process required each victim to not only recountthe detail of the abuse they suffered, but also endure the ignominy of being accused ofbeing liars. He observed a sense of abject helplessness, isolation, an overwhelmingsense of guilt, hate, anger, rage and fear that no one would ever believe them werethemes that ran through each account. He noted some victims had been driven tothe brink of suicide by the respondent's offending, while others had taken refuge inalcohol or drugs or resorted to violence. Finally, he observed not only the victims, butalso their parents, would suffer life-long consequences. He found their trust had beenabused, and they now carried the unfair burden of feeling they had let their childrendown.[29] The Judge then moved on to fix what he considered to be the appropriatedeterminate sentence before considering whether he should impose preventivedetention. The Judge agreed with the Crown that it was appropriate to imposecumulative sentences in this case to recognise the overall criminality ofthe respondent's offending. Otherwise, he would be restricted to applying a startingpoint of 20 years' imprisonment for all offending. The Judge adopted a global startingpoint of 23 years' imprisonment.[30] As to personal factors, the Judge found that the respondent had only verylimited personal factors which might operate to provide him with a discount fromthe starting point. The Judge accepted that the respondent had expressed someremorse and had shown some, albeit modest, insight into his offending.The respondent's physical health was also poor. He was 56 and had suffered a heartattack in 2014, which required a triple bypass. In addition to his history ofcardiovascular disease, he had Type 2 maturity onset diabetes.[31] The respondent was himself the victim of sexual abuse as a child. The Judgeaccepted that historical abuse may be relevant to sentencing. He was satisfied that thishad left an imprint on his psychosexual makeup and thus contributed to his offending.None of these factors were, however, particularly compelling on their own, butcombined he considered they warranted a modest discount of around four to fiveper cent. Applying this to the starting point, the Judge was led to a determinatesentence of 22 years' imprisonment, which he said would be the respondent's finalsentence if he decided not to order preventive detention. The Judge also thought a ten-year minimum period of imprisonment was necessary to hold the respondentaccountable for the harm he had done to the victims and to his community.[32] The Judge then turned to the issue of preventive detention. The first twopreconditions to preventive detention were met, as the respondent had been convictedof qualifying offences and was over 18 at the time of the offending.2 The Judge notedhe could only sentence the respondent to preventive detention if satisfied that he islikely to commit another qualifying offence if he were to be released aftera determinate sentence,3 and noted that preventive detention is not a sentence of lastresort or a punishment in itself.4 It is all about assessment and the evaluation of risk.The Judge noted he was obliged by law to take into account five matters in determiningwhether to impose preventive detention. They are:5(a) Any pattern of serious offending disclosed by the respondent's history;(b) The seriousness of the harm caused by his offending;(c) Information indicating a tendency for him to commit serious offencesin the future;(d) The absence of, or failure of, efforts by him to address the cause of hisoffending; and(e) The principle that a lengthy determinate sentence was preferable topreventive detention, if that provided adequate protection for society.[33] The Judge then referred to the two health assessor's reports by Dr Pillai andMs Coutinho. After summarising Dr Pillai's report, the Judge said that Ms Coutinho'sreport did not add substantially to that of Dr Pillai and as for the respondent's risk ofreoffending, Ms Coutinho's opinion did not seem to differ markedly from Dr Pillai's.Overall, according to the Judge, Mr Coutinho was somewhat ambivalent as to how sheassessed the respondent's ongoing risk to the community. However, as the Judge readthe report, she seemed to prefer a determinate sentence of imprisonment overthe indeterminant sentence of preventive detention.2 Sentencing Act 2002, ss 87(2)(a) and (b).3 Sentencing Act, ss 87(2)(c).4 R v Evans [2018] NZHC 69 at [27].5 Sentencing Act, s 87(4).[34] The Judge then canvassed the five matters that he was obliged to take intoaccount when considering whether to impose preventive detention. First, he agreedwith the Crown that the respondent had demonstrated a clearly established pattern ofrepetitive, ongoing and serious offending over the course of 30 years.Secondly, the Judge was of the view that the scale of the harm caused bythe respondent was incalculable. He had devastated the lives of 17 boys and youngmen, none of whom would be the same again because of what he did to them.[35] Thirdly, as to the respondent's tendency to commit serious offences inthe future, the Judge referred to the primary matters drawn to his attention bythe health assessors as aggravating his risk of reoffending. These were:(a) The respondent was diagnosed with paedophilia, which is difficult totreat.(b) He used sexual contact with the victims as a coping mechanism.(c) His adult relationships were characterised by an "emotional deficit"; inturn, he tended to identify with children on an emotional level.(d) He ignored obvious signs of distress and resistance from some ofthe victims. The Crown also pointed to a number of occasions prior tohis arrest where he was confronted about his offending by victims andby their family members.(e) He himself was a victim of abuse.(f) The sheer scale of his offending was enormous; it also escalated overtime in its seriousness and frequency.(g) He continued to offend right up until the time he was arrested.(h) As a general premise, paedophilic urges may not begin to wane until aperson reaches their late sixties. The respondent was still only 56.[36] The Judge then turned to what he said were a number of factors which operatedin the respondent's favour. These included the continued support of his family andsome belated insight into and responsibility taken for his offending. The respondenthad also expressed remorse and crucially acknowledged the need to rehabilitatehimself and was motivated to do so.[37] Furthermore, his health was likely to deteriorate further and in combinationwith his age, was a factor reducing his risk of reoffending when released.[38] There was, however, another matter not addressed in the reports, which inthe Judge's view, was of significance in assessing his tendency to reoffend. That wasthe situational nature of his offending. The respondent abused boys from the platformof trust within his community. In the context of assessing the potential for further risk,the Judge was of the view that it was difficult to see how he could ever cultivate similarcircumstances again. Without doubt, the Judge said he had completely destroyed anysense of trust he had previously enjoyed within his community. He expectedthe respondent would be totally and permanently ostracised. Without such a platform,his opportunity to offend against children would be severely limited. The Judgeconsidered the possibility of him ingratiating himself into a similar, but unconnectedschool or local community, would be prevented by the combined effect of an ExtendedSupervision Order (ESO) and compulsory registration as a child sex offender.[39] In taking all these protective factors into account, the Judge did not believe thatthe respondent presented as a significant risk of committing a serious offence inthe future.[40] Fourthly, as to an absence of efforts to rehabilitate, the Judge acknowledgedthat there were material aspects of the respondent's offending that he had not accepted.The Judge said this was very concerning, but he placed more weight onthe respondent's overall acceptance of responsibility and the expression of remorsefor what he had done. According to the Judge, the lack of opportunity for meaningfulrehabilitation weighed in favour of a determinate sentence.[41] Finally, looking at the principle that a lengthy determinate sentence waspreferable, the Judge noted this was a finely balanced case. Counting againstpreventive detention is what he viewed as the respondent's low potential to reoffendif released and the fact that he had never received treatment. Counting in favour ofpreventive detention was the sheer scale of his offending and the ensuing harm it hadcaused the community.[42] The Judge was of the view that where an offender sits on the cusp of preventivedetention, the fact that he or she has never undergone a lengthy sentence ofimprisonment or has been warned about the possibility of preventive detention maytip the scales in favour of a determinate sentence. There was also the possibility ofan ESO being imposed if he was released from prison and that was somethingthe Judge was entitled to take into account.[43] In all the circumstances, the Judge was satisfied that the scales were tipped infavour of a determinate sentence. The Judge was of the view that the respondent wasnot likely to commit another qualifying offence if he was granted parole. The lengthydeterminate sentence that the respondent was to receive was sufficient to protectthe community.[44] The effective end sentence imposed on the respondent was, therefore, one of22 years' imprisonment, with a minimum period of imprisonment of 10 years.Crown submissions[45] The appeal is brought on the basis that the sentencing Judge's decision notimpose preventive detention was wrong in principle. In particular, the Crown submitsthe following errors led the Judge to wrongly conclude the respondent was not likelyto commit another qualifying sexual offence at the sentence expiry date:(a) The Judge inaccurately summarised Ms Countinho's findings.(b) The Judge overstated the extent to which any ostracism in hiscommunity would reduce the respondent's overall risk of reoffending,and in doing so overlooked that much of the respondent's early sexualoffending involved opportunistic assaults of young relatives which didnot depend on his standing in the community and also that he hasthe continued support of his family.(c) The Judge erroneously placed weight on the combined protective effectof the respondent's ill-health and advancing age, contrary toMs Coutinho's observation that the respondent's offending had notabated with advancing age or poor health.(d) The Judge overstated the possibility of the respondent successfullyengaging in rehabilitation on the basis of unduly generous findings thatthe respondent had not previously had opportunities for rehabilitation;was remorseful; had taken responsibility for his offending; and hadotherwise conducted himself in a pro-social and responsible way.[46] Adjusting for these errors, the Crown submits the correct conclusion was thatthe respondent was likely to commit another qualifying sexual offence if released atthe sentence expiry date and the only sentence capable of providing adequateprotection for society was one of preventive detention.Discussion[47] As to the first alleged error, we are of the view, with respect, that the Judge didnot fully recognise the differences between the report of Dr Pillai and that ofMs Coutinho. Dr Pillai was of the opinion that the Static-99R and SVR-20 appearedto converge on a finding that the respondent was at low risk of future sexual offending.Although Ms Coutinho agreed that the respondent's risk was (artificially) low usingthe Static-99R, she opined that using the SVR-20, the respondent carried a moderateto high risk of sexual recidivism.[48] Dr Pillai concluded that the respondent's overall risk should be considered atleast moderate, while Ms Coutinho's conclusion was that the respondent was at highrisk of sexual offending in a similar manner following his release into the community.The Judge read her report as preferring a determinate sentence of imprisonment.We do not think that is quite right. Ms Coutinho described his offending as"an entrenched habit of addictive proportions", which he indulged in despite beingconfronted about it several times by various victims and their families. Ms Coutinhosaid he had managed to conceal his risk for many years and careful assessment ofthe risk of reoffending prior to release would be required and "may be best undertakenby the Parole Board".[49] Risk assessments are carried out by the Parole Board on prisoners subject to adeterminate sentence, as well as those subject to preventive detention. As it currentlystands, however, the respondent will have to be released from prison at his sentenceexpiry date even if risk assessment reports completed at the request of the Parole Boardwhile he is in prison indicate he is still at risk of re-offending. If he was subject to asentence of preventive detention, the Parole Board would have the final say on hisrelease.[50] As to the second alleged error, we are also of the view that the Judge may haveoverstated the extent to which any ostracism in the respondent's community wouldreduce his overall risk of offending. We accept that this finding overlooks the fact thatthe respondent's early sexual offending involved opportunistic assaults on youngrelatives which did not depend on his standing in the community or the positions ofresponsibility he held.[51] In addition, the respondent enjoys a measure of support from members of hisfamily. Assuming such support continues, the respondent may have furtheropportunities to offend upon release. The Judge was, however, right to have regard tothe protective factors of compulsory registration as a child sex offender and the realpossibility of stringent controls under an ESO following release from a determinatesentence of imprisonment. Possible conditions of an ESO can include restrictions onthe respondent's movements and a prohibition on him contacting anyone under 16years of age without prior permission.[52] As to the third alleged error, the Judge was also right to place weight onthe combined effect of the respondent's ill-health and the protective effect of hisadvancing age. It is true that Ms Coutinho described the respondent's offending asappearing to be an entrenched habit of addictive proportions and that despite his poorhealth and advance age he continued offending until the time of his arrest, but thesecomments were backwards looking. On the other hand, Dr Pillai quoted Canadianresearch in support of his opinion that the respondent's risk of future offending willsignificantly reduce from his late 60's, but that he would remain at risk until then.The respondent will only be halfway through his determinate sentence of 22 years'imprisonment when he reaches 67 years.[53] Finally, as to the fourth alleged error, it cannot be said that the Judge overstatedthe possibility of the respondent successfully engaging in rehabilitation. Althoughacknowledging the change in the respondent's strong and underlying deviant sex drivewould be slow and difficult, Dr Pillai noted that the respondent had never previouslybeen offered an opportunity to engage in treatment for sexual offending and that hehad indicated his willingness to cooperate in any form of treatment that would reducehis risk to others. Ms Coutinho also recommended that the respondent be givenan opportunity to attend available sex offender treatment programmes and receivepsychological treatment to address his offending issues and past trauma.[54] While the Judge did not fully recognise Ms Coutinho's findings and may havegiven more weight than warranted to the respondent's ostracism, we are not persuadedthat the sentence of 22 years' imprisonment should be quashed and substituted by asentence of preventive detention. Other factors justified the Judge's conclusion that adeterminate sentence provided adequate protection for the community.The respondent is now 56 and will be 78 on the sentence expiry date. He does notenjoy good health, and in the nature of things his health will have deteriorated furtherby the time he is 78. In other cases where preventive detention has been imposed,the defendant would have only been in their 40's or 50's when the otherwiseappropriate sentence of imprisonment had been served in full.6 When making theirown assessment of the risk of future offending upon release from a determinatesentence of imprisonment, Dr Pillai and Ms Coutinho did not know the length ofsentence to be imposed by the Judge. Twenty-two years' imprisonment is a longsentence.6 R v Parker [2013] NZHC 2075; and R v Hutchison [2007] NZCA 55.[55] Although we have disagreed with the Judge's reasons in some respects, we areultimately not persuaded that he was wrong to conclude that the sentence imposed willprovide adequate protection for the community and so must be preferred overpreventive detention.7Result[56] The Solicitor-General's appeal against sentence is dismissed.Solicitors:Crown Solicitor, Manukau for Appellant7 Sentencing Act, ss 87(4)(e).