A Waikato sex offender has had his preventive detention sentence quashed and a lesser jail term imposed despite being deemed a high risk of reoffending.
Nicholas Brian Wyatt, 36, admitted grooming and having sex with a 15-year-old girl about 20 times, two years after first meeting her.
Wyatt met the victim when she was aged 13 while in a romantic relationship with her older sister.
He then began grooming her, following her on social media and contacting her on a daily basis.
Two years later, when she was aged 15, he saw her walking to school and offered her a ride in his vehicle. He kissed her and touched her legs before dropping her off.
After suggesting to meet up numerous times, she eventually agreed, about 20 times over a four-month period to have sex.
He then persisted in contacting her on social media after she attempted to block him.
Wyatt had what was dubbed a "busy criminal history" by the Court of Appeal; beginning in 1999 with dishonesty and extortion offences before extending to sexual offending with a male under 12 two years later.
That same year he clocked up kidnapping and aggravated robbery convictions and in 2006 was convicted of doing indecent acts with a 13-year-old girl.
He was sentenced to a 10-year extended supervision order [ESO] in 2007 which he would go on to breach.
He was convicted of robbery and kidnapping in 2009, and told if he reoffended in a serious sexual or violent way, a sentence of preventive detention was inevitable.
He went on to breach his ESO in 2015, 2016, 2017, 2018 and 2019.
He also attacked Corrections staff and fellow prisoners and was removed from a treatment programme for sexual behaviour with another prisoner in 2012.
A risk assessment by a Corrections psychologist found Wyatt's risk of further
sexual offending "as at least high, and it is likely that this risk will endure over time".
In an interview with a forensic psychiatrist, Wyatt claimed the sex was consensual and
because she was only six months away from turning 16, a big deal was being made
out of nothing.
In February this year, Justice Geoffrey Venning sentenced Wyatt to preventive detention with a minimum term of five years' prison in the High Court in Hamilton after he earlier pleaded guilty to one charge of meeting a young person after grooming her for sex, and two charges of sexual conduct with a person under 16 years old.
However, in his appeal, he stated he ought to have been sentenced to the four years, four months' term that Justice Venning would have imposed had he not deemed preventive detention necessary to protect the community.
Wyatt's counsel Melissa James submitted to the Court of Appeal that Justice Venning placed undue weight on his failed attempts at completing rehabilitative courses and that his "feelings of shame about his offending may have prevented him from openly engaging in treatment in the past".
She said his offending appeared to happen when he did not have stable accommodation or was isolated from his mother.
The Court of Appeal judges said the threshold question was whether Wyatt would commit another qualifying sexual or violence offence once released.
"In some cases, such as this one, the index offending and the offender's relevant
offending history are not particularly serious offences of their kind."
However, they agreed with Justice Venning that Wyatt was eligible for preventive detention and that "he is likely to commit another qualifying sexual offence if released at the end of the determinate sentence".
"We share the Judge's considerable doubt that he is sufficiently motivated to undertake the intensive work of rehabilitating himself.
"We are reluctant to say that Mr Wyatt is without capacity for reform."
But they accepted his sexual offending began as a young person and it had escalated "but his history records only three incidents that resulted in convictions, none of which were particularly serious on the scale of sexual offending and all of it involved complainants whom he had come to know."
The judges said they were also not "directly concerned" with Wyatt's violence history and he was "now 37, an age at which some offenders' risk of reoffending may be declining".
The court found that all of Wyatt's sexual offending was "at the lower end of the seriousness scale".
"This is not to trivialise it, or its impact on the victim ... but it was a consensual relationship and she was close to the age of consent.
"We are not convinced that the offending warrants an indefinite sentence of imprisonment."
His preventive detention sentence was quashed and he was sentenced to four years and four months' prison with no minimum term imposed.