Sentencing Act 2002 – preventive detention – sexual assault – pattern of offending – serious violence – failure to address cause of offending – minimum period of imprisonment – risk of re-offending –clinical psychologist reports – protection of the community
R v Rene Francis Thomas [2024] NZHC 598 per Anderson J.
Rene Francis Thomas was found guilty after a trial by jury of seven charges, including sexual violation by unlawful sexual connection and strangulation of his cellmate at Wiri prison. The offending occurred over 230 days and involved prolonged violent behaviour and rape.
During this period, Thomas controlled the victim to the point of dictating when and whether he could use the toilet or shower. Thomas also used to eat the victim’s meals, which gave rise to a 30-kilogram-plus weight loss the victim underwent during that time. He was humiliated, consistently threatened and subjected to violence. Thomas would often boast on the phone to his partner about his abusive behaviour toward the victim.
Before the court was the issue of whether Thomas should be sentenced to preventive detention. The first part, however, was to decide upon a finite sentence. After uplifts and discounts, a global starting point of 11 years was set.
Anderson J decided that a minimum term of imprisonment (MPI) applied to Thomas as one-third parole eligibility would not suffice in holding him accountable, deterring his offending and protecting the community from him. An MPI of six years was set.
On the issue of preventive detention, Anderson J considered whether the crimes warranted extra protection for the community. Preventive detention is imposed if the judge is satisfied the defendant is likely to commit a qualifying violent or sexual offence on release. In this case, the court heard from two health assessors who said that the trauma and experiences Thomas went through as a child contributed to his offending. The assessors and the Crown both submitted that Thomas’ criminal history demonstrated an entrenched pattern of behaviour that imprisonment had not corrected and that he displayed psychopathic behaviours.
While this was his first sexual offence, Thomas had many convictions for violent offending, most of which had escalated in seriousness in recent years. One health assessor assessed Thomas as being at a high risk of re-offending whereas the other determined an above-average risk of future sexual offending and high risk for violent offending.
The court found, based on reports, that Thomas had failed to address the causes of his offending by exiting programs that were meant to help, refusing to do group rehabilitation work and showing a lack of remorse. Thomas was seen to have limited insight into his needs for further treatment for violence and drugs.
Anderson J considered preventive detention to be the proper and responsible sentence. Preventive detention requires an MPI of at least five years. The MPI must be the longer of a period reflecting the gravity of the offending or as is required to protect the public. The court concluded the same period of six years as decided for the MPI would be appropriate to also protect the public. Whether Thomas is released after that is a matter for the parole board.
Applicable principles: preventive detention – safety of the public – minimum period of imprisonment – parole decisions – Sentencing Act 2002, s 8(c) and (d) and s 87 – pattern of serious offending – risk of reoffending – clinical psychologist reports – qualifying sexual offences – correction facility offending – band 2 rape offences – aggravating factors – indefinite prison sentences
Held: Thomas was sentenced to preventive detention with an MPI of six years’ imprisonment on the charges of strangulation and sexual violation.
On the charge of assault with intent to injure, three years’ imprisonment; assault with a weapon, two years; and on two charges of injuring with intent to injure, two years each. All sentences are concurrent.
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