A repeat child sex offender who cut off his electronic tracking bracelet and sexually abused a 16-month-old toddler while on parole has had his prison sentence slashed on appeal.
Fabian Whati Moore was sentenced to preventive detention with a minimum non-parole period of five years when he appeared at the High Court in Auckland in October 2022.
The sentence meant Moore would not have been released from prison until he could prove he was no longer a threat to the community.
However, following a successful appeal to the Court of Appeal, Moore was eligible for release, on time already served, and was released from prison in July.
Moore has a criminal history that stretches back 30 years and includes convictions for sexually abusing five children and raping a woman.
Court documents released to Stuff show Moore’s most recent offending happened while he was subjected to a 10-year Extended Supervision Order (ESO).
The order allowed authorities to monitor his whereabouts with a tracking bracelet.
But in September 2020, Moore cut that bracelet off and went on the run.
He moved in with a woman and her children. Her youngest was 16 months-old.
Court documents say Moore was drinking and smoking cannabis and methamphetamine most days. The contact with children, alcohol and drugs were further breaches of his ESO conditions.
One night, the woman left her toddler asleep on the sofa, wrapped in a blanket, and went to bed.
At about 3am she woke Moore to tell him she had a “family emergency” and had to go out.
She asked Moore to keep an ear out for the children.
When she returned two hours later, she found Moore half-naked and lying on the sofa with the toddler. Moore’s underpants and trousers were around his ankles.
At trial, Moore told jurors he had been using the bathroom when he heard the child call out.
He said he went to soothe the toddler but said he couldn’t pull up his trousers and hold the girl at the same time.
Chris McKeen/Stuff
Justice Pheroze Jagose at the High Court in Auckland.
At sentencing, Justice Pheroze Jagose received health assessors reports. Both determined Moore was a high-risk of reoffending.
Justice Jagose found Moore formed relationships with adults to get closer to their children. His offending caused serious harm to vulnerable young people and he had shown a pattern of offending.
But Moore took his case to the Court of Appeal.
Moore’s lawyer Sue Gray said Justice Jagose overstated the gravity of the offending and failed to acknowledge there had been a 15-year gap between Moore’s offences.
The court found Moore had undergone a sex offender’s programme in prison. While acknowledging the health assessors’ reports that found Moore was a high risk of reoffending, the court said the findings were based on an assumption Moore would not be subject to an ESO.
“While an ESO is not an alternative to preventive detention, it has been described as a “potential safety valve” which shores up the principle that a lengthy finite sentence is preferable to preventive detention.”
Crown prosecutor Claire Paterson reiterated Moore had been on an ESO when he sexually abused the toddler. He had cut off his ankle tracker, drank alcohol and taken drugs and had been convicted of 26 breaches.
She said the ESO did not keep the community safe before and it could not be assumed to do the same in the future.
Stuff
The Court of Appeal in Wellington
But the Court of Appeal found the ESO had been instrumental in Moore’s lack of offending for 15 years.
The court acknowledged Moore had repeatedly breached his ESO, but the majority of the breaches related to drinking.
“Mr Moore is a man who has faced significant challenges in his childhood which no doubt contributed to his offending. He is not, however, a man without prospects of rehabilitation, as the health assessors acknowledge.”
The court said Moore had made progress but had stopped taking his medication two weeks before cutting off his tracking bracelet. It recommended oversight of his medication and a sex offender’s programme.
“ESOs and preventive detention are some of the most coercive exercises of state power in New Zealand law and engage human rights issues.
“New Zealand courts and international human rights bodies have found these regimes to be inconsistent with human rights.”
It noted there was a case on appeal, waiting to be heard by the Supreme Court on this issue and the Law Commission was currently reviewing ESOs and preventive detention.
The court said some have said preventive detention provides prisoners with an incentive to take part in rehabilitation.
“That might sound good in theory but we must have regard to reality. If sentenced to preventive detention, we are concerned that Mr Moore may well be a low priority for any rehabilitative programmes and left to languish in prison without suitable treatment.”
The easy option would be to uphold the sentence of preventive detention but that would be an “extreme step”, the court said.
“We would be upholding the sentence of preventive detention only because of a lack of confidence that the protective measures included in the ESO will be properly implemented and monitored. “That would be to punish Mr Moore for failings within the system. That cannot be right.”
The court said Moore did not pose a significant “ongoing risk”, provided an ESO with emphasis on rehabilitation is put in place.
“The risk is a high one, involving our most vulnerable section of the community, young children. This is a very finely balanced decision.”
Three decades of offending
Moore’s criminal history stretches back to 1990 when he sexually abused a 7-year-old girl as she slept.
Five years later, Moore was at a neighbour’s party. Moore found his neighbour’s four year-old and six year-old asleep in a bedroom and sexually abused them.
He was sentenced to two years in prison.
In 2000 Moore was out of prison when he was convicted of raping a woman and sentenced to a further seven years in prison.
Forbes was released early and in 2005, while still on parole, he was out walking around when he came across a house party.
Moore had been drinking and smoking methamphetamine and cannabis. The party had wound down but Moore went inside the house where he sexually abused a four-year-old girl in her bed, telling her “don’t say anything or someone will get hurt”.
At the High Court in Hamilton in 2006, The Crown asked Justice Ellen France to sentence Moore to preventive detention.
After considering reports from mental health experts, Justice France found Moore “narrowly” avoided preventive detention.
She said Moore showed a willingness to take part in a sex offender’s programme and was remorseful.
“Be warned that if you re-offend in the same way on your release, you are then likely to face a sentence of preventive detention,” the judge said.
She sentenced Moore to three years and four months in prison.
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