R v Burr HC Hamilton CRI-2006-019-3803

[2007] NZHC 2135

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2006-019-3803

THE QUEEN

v

BRUCE BERNARD BURR

Hearing:         13 February 2007

Appearances: Ms Litt for Crown

Mr M Robb for Prisoner

Sentencing:     13 February 2007

SENTENCING NOTES OF LANG J

Solicitors:

Crown Solicitor, Hamilton
Counsel:

Mr M Robb, Hamilton

R V BRUCE BERNARD BURR HC HAM CRI-2006-019-3803 [13 February 2007]

[1]      Mr Burr, you appear for sentence having pleaded guilty in the District Court to four counts of indecently assaulting a girl under the age of 12 years and one count of indecently assaulting a girl aged between 12 and 16 years.    The maximum sentence on each charge is one of ten years imprisonment.

[2]      The  District  Court  committed  you  for  sentence  in  this  Court  so  that consideration could be given to the imposition of a sentence of preventive detention.

Factual background

[3]      Your offending is historical in the sense that it occurred between 1978 and

1980.    It relates to indecent assaults that you committed against three young girls, two under the age of 12 years and one under the age of 16 years.    The assaults flowed from the fact that for a short time you were in a de-facto relationship with the girls’ mother, and even after the relationship ended you remained on friendly terms with her.    You were also the father of a girl who was friendly with the three complainants.   As a result, you continued to see the three complainants on a regular basis even after your relationship with their mother ended.

CRN 23512

[4]      I begin by setting out the factual background to the charge in respect of the oldest complainant.    Like the other complainants, she is unable to accurately state exactly when you committed the offence against her.    She can only say that it occurred between May 1978, when her family moved to the town in which the offending occurred and February 1980, when you left New Zealand to live in Australia.

[5]      The eldest complainant was born on 5 December 1966.   She became a ward of the state in 1978, and as a result she spent lengthy periods away from the family home.   She was, however, allowed to visit her family at weekends and it was on one of these visits that she met you.   Contrary to her mother’s wishes, you were happy for this complainant to smoke at your house and you would keep a supply of cigarettes in the kitchen cupboard for when she visited.   That may well have enabled

you to develop a relationship of trust and confidence with this complainant that you later used to your own ends.

[6]      On one of her weekend visits the eldest complainant was at your home and you invited her to stay the night.   You arranged for her to sleep on a couch in the lounge and you gave her a blanket to cover herself with.   You also told her to come and see you if she got cold.

[7]      At some stage during the night the complainant awoke and came into your bedroom to tell you that she was cold.    She then obeyed your request that she get into your bed.   When she got into the bed, she lay on her side facing away from you.

[8]      After a few minutes you placed your hand on her right hip and began to rub her.   You then rolled her onto her back and continued to rub her in the area of her hips.   Shortly after that you slipped your hand down the front of her underwear and penetrated the complainant’s vagina with your finger.    She immediately told you that you were hurting her and she pushed your hand away.   She then got out of the bed and left your bedroom, returning to the lounge.

CRN 23511

[9]      The middle complainant was born on 8 June 1968.     Like her sisters, she often visited your home and occasionally stayed the night.

[10]    On one such occasion you called at her home and picked her up, having previously arranged with her mother that she would stay the night with you.   When she got to your house you told the complainant that she was to sleep in your bed. She thought nothing of it and duly got into bed with you.

[11]     You  then  got  into  bed  and  began  showing  the  complainant  a  book  that depicted photographs of couples in erotic sexual poses.     You then put the book down and turned out the bedroom light.   Once the complainant had fallen asleep you began  to  rub  her  vaginal  area  with  your  fingers.      She  was  still  wearing  her underwear and nightgown at this time.     The summary of facts records that you

continued to rub against her vaginal area on top of her underwear until she had an orgasm.

CRN 23513, 23514 and 23515

[12]     The youngest complainant was born on 3 September 1969.

[13]     On an occasion when she was visiting your home you approached her and told her that there was something in the shed that you wished to show her.   You then took the complainant into the shed and closed the door behind you.   Once inside the shed, you put one hand under the complainant’s top and you put your other hand down the front of the complainant’s pants in the area of her vagina.     You then rubbed your fingers against the complainant’s vaginal area before she managed to break free of your grasp and run from the shed.   You followed her from the shed and told her not to say anything.   You threatened her with violence should she do so.

[14]     A few days later, the same complainant was at your home again.    On this occasion she was due to stay the night with your daughter.   When it was time to go to bed, you told her that she was not to sleep in your daughter’s room and that she was to sleep on the couch in the lounge instead.   She did as she was told and went to sleep on the couch.

[15]     At some stage during the night the complainant awoke to find that you were removing her  underwear.     You  were  naked  from  the  waist  down  at  the  time. Having removed her underwear, you lay on top of the complainant and pushed your erect penis against her vaginal area.     You then lay on your back, pulled the complainant on top of you and again pushed your erect penis against her vaginal area.    Next you sat beside her, took her hand and held it against your erect penis. You moved her hand up and down your penis until you ejaculated over her hand.

[16]    On a third occasion the complainant’s mother had gone out and left the complainant with you.   Because you were due to start a nightshift at the local dairy factory, you took both your daughter and the complainant to work with you.    You gave them blankets and told them to go to sleep in your vehicle.

[17]    During the course of your shift you went out to the car and woke the complainant up.    She then asked to be taken to the toilet.     After taking the complainant to the toilet you dragged her into a side room.   You then put your hand under her top and rubbed her chest.   You also tried to remove her pants.

[18]     You then removed your trousers and held the complainant’s hand against your penis, again moving it up and down your penis until you ejaculated.    The complainant by this time was in tears.   When you took her back to the car you told her to keep her mouth shut or you would hurt her mother.

[19]     I regard your offending against this complainant as the most serious of the three sets of offending.    I reach that view because it was persistent in nature.    It involved a variety of sexual conduct and also, on two of the three occasions, you made threats to the complainant as to what would happen if she said anything.

Finite sentence: Starting point

[20]     The sentence to be imposed upon you is not without its difficulties because of the fact that your offending occurred a long time ago.    You are entitled to be sentenced in accordance with the sentencing regime in force at that time and not that which is in force today:  R v Carruthers CA 401/94 10 April 1995.    Both counsel accept that there was no fixed tariff in relation to sentencing for indecent assault in the 1980s, nor was there a discernible sentencing regime in place in respect of indecency offending generally.

[21]     I accept the Crown’s submission, taken from cases such as R v B [1986] 2

NZLR 751, that the Court must accept that sexual offending against children has very significant consequences for the children involved.    It must recognise that conduct such as yours can be said to rob children of their childhood.   Moreover, the long-term effects of such conduct are often incalculable.    It is also a well-settled principle that crimes of this kind call for a sentence that expresses society’s emphatic denunciation of conduct such as yours.   Crimes such as yours are committed against a particularly vulnerable and helpless section of society who are in fact its most precious asset.    Children who are the victims of sexual abuse may be robbed of

much of the joy and innocence of their childhood and they may be badly affected for the rest of their lives.

[22]     All of these matters are recognised in one way or another in the provisions of the Sentencing Act 2002.

The victim impact statements

[23]     In the present case the devastating effect that such offending can produce is demonstrated by the victim impact statements that have been prepared by the complainants.    Although they are now aged 40, 38 and 37 years respectively, it is clear from their statements that they have carried the effects of this offending with them throughout the last 26 years and that this is likely to continue into the future.

[24]     The youngest complainant says that you have ruined her life.   She says that your selfish, thoughtless actions “have destroyed my life, my confidence, my trust in people and seriously affected my mental health and wellbeing”.   It has also resulted in this complainant having a very strained relationship with both her mother and her sisters.   She also believes that her inability to trust people has severely impacted on her ability to have an intimate relationship and that it resulted in the breakdown of her marriage.    She says that she has not had children, because she fears that she would not be able to protect them from the same fate that she suffered.    Although she has had counselling for the last 19 years, she nevertheless continues to suffer both physical and mental health problems which at times have resulted in her being admitted to hospital.    She was diagnosed in the late 1990s as suffering from post traumatic stress disorder and she continues to suffer panic attacks in stressful situations.

[25]     The middle complainant also confirms that what you did to her has affected her greatly, although she has never sought counselling.   She considers that the best way of dealing with your offending has been to get on with her own life.    As a result, she has never really discussed or spoken about your offending with anyone. She does not consider that she could ever bring herself to let others know what happened.   She, too, has a strained relationship with her mother and with her sisters.

Your actions have also resulted in her being very protective of her children in order to ensure that they do not suffer the same fate that she did.   She expresses the hope that having you face up to what you did will allow her to move on and forget what happened.

[26]     The eldest complainant says that she would like to think that, through years of seeing different counsellors, she has dealt with a lot of how she felt about the things you did to her.    She says, however, that she does not function as a normal person should, and that she has very little control over her emotions.    As a result, she stresses easily and is often in a state of depression.    In addition, she does not associate with many people and does not have friends as such.    She is now on an invalid’s benefit as a result of her depression and stress and, although she has been in a reasonably lengthy relationship, it is clear that this has not been plain sailing.

[27]     All in all, Mr Burr, it is obvious from the victim impact statements that your offending has had a devastating effect on the lives of your three victims.

Other factors

[28]     There are other aspects of  your offending that also place it in the more serious category.   First, it involved a breach of trust in respect of young girls who were entrusted by their mother into your care.    Secondly, it involved not one, but three, separate complainants.     Thirdly, you indecently assaulted one of those complainants not once but on three separate occasions.   The offending also involved an element of “grooming”, because on at least one occasion you prepared one of your victims for what was to follow by showing her erotic photographs.   You also gave the eldest complainant cigarettes that her mother would not allow her to smoke. Finally, on occasions you would threaten at least the youngest complainant with harm either to herself or to her mother if she told anybody what happened.

The authorities

[29]     In those circumstances I agree with the Crown that, viewed in totality, your offending falls towards the top end of cases involving indecent assault.

[30]     The Crown has referred me to R v Accused [1993] 2 NZLR 286. This was an appeal by the Solicitor-General in respect of a prisoner who had offended against five complainants. The offending varied greatly in its nature, but included digital penetration and masturbation. The Court observed (at 288) that it was a bad case of persistent child abuse by conduct which, although not in its particulars of the most serious kind of sexual offending, was nevertheless likely to have some abiding detrimental aspect on five lives. The Court allowed the appeal and increased the sentence, imposed after trial, to one of four and a half years imprisonment. Bearing in mind the fact that this was a Solicitor-General’s appeal, that sentence can be viewed as being at the lower end of the available range for the conduct in question in that case.

[31]     In  the  earlier  case  of  R  v  B  [1984] 1 NZLR 261 the Court of Appeal considered the appropriate sentence in cases falling short of repeated incest or sodomy. The appellant had offended against his 10 year old daughter over a period of a two and a half months. The offending included repeated indecency by the appellant upon his daughter and inducing his daughter to perform oral sex on him. There were also two attempts at penile penetration. The appellant had pleaded guilty, and had no previous convictions for sexual offending. The Court held, applying the totality principle, that a sentence of five years imprisonment was appropriate.

Conclusion

[32]     The Crown submits that an appropriate starting point for this offending is at the top of the range of four to six years.   Your counsel submits that a starting point of four years or less is appropriate.

[33]     I consider that the aggravating features of your offending, viewed in totality, are such that a starting point of five and a half years imprisonment is warranted.

Aggravating features

[34]     The only aggravating feature is the fact that you were convicted in 1969 on four charges of indecently assaulting young boys.  Although it occurred some ten years earlier, I consider that this factor is an aggravating factor that warrants the starting point being increased.   I propose to increase the starting point by six months to recognise this factor.     The starting point that I therefore take, before having regard to mitigating features, is one of six years imprisonment.

Mitigating features

[35]    There are undoubtedly some mitigating features that need to be taken into account.   The first and most obvious is that you are entitled to credit for your guilty pleas, which came prior to depositions.   This spared the complainants the very real ordeal of having to give evidence at a defended trial.

[36]     Ordinarily a plea of guilty would also provide an indication that the offender accepts responsibility for, and is remorseful in respect of, his or her crimes.   In your case, however, although you say you are remorseful, the reports indicate that you appear to wish to diminish your culpability and essentially say that you only had sexual contact with persons who were willing.

[37]    I also take into account the fact that you have now attended three separate courses in Australia and you appear to have remained out of trouble since your deportation back to New Zealand in or about 2000.    You also say that you are determined to ensure that you do not place yourself in a position of risk again in the future.

[38]     In those circumstances I am prepared to reduce your sentence by 14 months, or approximately 20 per cent, to take into account mitigating factors.    This means that the finite sentence that would ordinarily be imposed upon you is one of four years ten months imprisonment.

Should a sentence of preventive detention be imposed?

[39]     That is not, however, the end of the matter.   The Crown contends that your circumstances, and those of your past offending, are such that the public can only properly be protected from you in the future by the imposition of a sentence of preventive detention.

[40]     Both  counsel  agree  that  you  are  eligible  for  a  sentence  of  preventive detention notwithstanding the fact that you are subject to the criteria set out in the Criminal Justice Act 1954.   This is because that was the Act of Parliament that was in force at the time of your offending.    Because counsel are in agreement on this point I do not propose to traverse the complicated statutory machinery by which this conclusion is reached.

[41]     The guidelines for the imposition of a sentence of preventive detention under the 1954 Act are, in essence, the same as those in the Criminal Justice Act 1985. Both Acts provided for a test of whether it was “expedient for the public” that a sentence of preventive detention be imposed.

[42]     Section 24(2) of the 1954 Act provides:

Subject to the provisions of this section and of section 25 of this Act, the High Court, if it is satisfied that it is expedient for the protection of the public that any person to whom this section applies should be detained in custody  for  any  substantial  period,  may,  instead  of  passing  any  other sentence, pass a sentence of preventive detention.

[43]     Both  counsel  also  accept  that  the  Court  retains  a  residual  discretion  in imposing a sentence of preventive detention.

[44]     The requirements of the equivalent section of the 1985 Act were discussed by the Court of Appeal in R v Leitch [1988] 1 NZLR 420. The Court said (at 429):

Clearly,  “expedient”  as  used  in  the  section  sets  a  lower  threshold  than

“necessary” …

The standard required by section 75(2) is that the sentencing Court be satisfied it is appropriate for the protection of the public, ie it is suitable to the circumstances of the case to detain the offender in custody for a substantial  period.        Where  section  75(1)  alone  applies,  the  standard

required by section 75(3)(A) must also be met.    The threshold there is “a substantial risk that the offender will commit a specified offence upon release”.

Amongst the factors likely to be relevant to the assessments under section

75(2) and section 75(3)(A) are:  the nature of the offending, its gravity and the time span;  the category of victims and the impact on them;  the response

to  previous  rehabilitation  efforts;    the  time  elapsed  since  any  relevant previous offending and the steps taken to avoid re-offending;  acceptance of

responsibility and remorse for the victims;  predilection or proclivity for offending taking account of professional risk assessments and the prognosis for the outcome of available rehabilitative treatment.

[45]     The Crown also accepts that the section contains a discretion.   In Leitch the

Court said:

… When weighing the exercise of the discretion, the Court will ordinarily consider whether the protective purpose of preventive detention could reasonably be met by an available finite sentence of imprisonment.    And there may perhaps be other considerations which in particular circumstances may justify the Court in the proper exercise of the discretion not timetable impose preventive detention.   Nevertheless, what is clear on this analysis is that, as the Court put it in R v Rameka (Court of Appeal, Wellington, CA

178/97, 28 June 1997), “The statutory test is not to be burdened by the notion that preventive detention is a sentence of last resort”.

Sentencing Act 2002

[46]     In addition, the preventive detention provisions in the current legislation, the Sentencing  Act  2002,  apply  to  your  offending  because  of  the  retrospective application of the 2002 Act by virtue of s 6 of that Act.   They also apply because, by virtue of s 135 of the 2002 Act, your offending would have been covered by, and met the conditions of, the 1985 legislation which applied to offending that occurred prior to its commencement.

[47]     Section 87(1) of the 2002 Act provides:

(1)     The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.

[48]     Before a sentence of preventive detention can be imposed under the 2002

Act, however, the Court must be satisfied that “the offender is likely to commit another qualifying sexual or violent offence if the person is released at the sentence

expiry date … of any sentence, other than a sentence under this section, that the

Court is able to impose”.

[49]     When considering whether to impose a sentence of preventive detention the

Court is also required, by virtue of s 87(4), to take into account the following factors:

(a)     any pattern of serious offending disclosed by the offender's history;

and

(b)    the seriousness of the harm to the community caused by the offending;

and

(c)    information indicating a tendency to commit serious offences in future;

and

(d)      the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and

(e)     the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[50]     I propose to apply the criteria from the 2002 Act in considering whether or not to impose a sentence of preventive detention in your case.   It seems to me that that best meets current standards and will also determine whether it is expedient for the protection of the public (in terms of the 1954 and 1985 Acts) that you be detained in custody for a substantial period.

(a)      Any pattern of serious offending disclosed by the offender’s history

[51]     I have no hesitation in concluding that your history does establish a pattern of serious offending.    In addition to the present offending and that for which you appeared for sentence in 1969, you were sentenced in September 1996 to a total of six years imprisonment in Australia on two charges of showing offensive material to a child under the age of 16, seven charges of indecent dealing and one charge of doing an indecent act.     Those offences were committed in 1995 and 1996 and related to a group of three children:  two sisters aged 7 and 9 years and a male child, aged 9.    You had family connections to the children and would offer to babysit. You told them numerous stories relating to sexually explicit scenarios and you showed them pornographic pictures.    You hugged and kissed those children in an indecent manner and on one occasion you got into bed with the 7-year-old and

rubbed your hands along the side of her body in an indecent manner.   You also sat naked and masturbated in front of the boy, you got him to rub his hand between the cheeks of your buttocks and you repeatedly attempted to get him to touch you on the penis.

[52]     Then, on 17 November 1997 you were convicted in Australia on a further charge of indecent dealings with a child under the age of 13 years and a charge of sexual penetration of a child.   You were sentenced on this occasion to a total of four years imprisonment.    These offences had occurred in 1992 and 1993 and they involved you masturbating a 6-year-old boy and introducing the boy’s penis into your mouth.   The child was a neighbour whom you had befriended and taken into your home.   The sentencing Judge on this occasion apparently considered the option of indefinite detention but elected not to impose such a sentence “by the merest of margins” in the hope that you would benefit from sex offender treatment.

[53]    On 11 July 2000 you were convicted on three further charges of indecent dealings with a child under 13 years.     On this occasion you were sentenced to another year’s imprisonment.   These offences were committed against two different girls in 1984.   The first offence occurred against a 12-year-old child who was in a motel room with you, her mother and your own daughter.    You put your finger in her vagina whilst she was asleep causing her to wake up.    The other two offences were committed against a child between the ages of 6 and 8 and involved you touching her on the vagina on two separate occasions.

[54]     Earlier, in 1990 you were convicted on four charges of indecent dealing and sentenced to two years imprisonment in Western Australia.   On this occasion your victim was a 12 year old girl who was a volunteer at a community museum project that you ran.

[55]    This series of convictions, Mr Burr, makes it clear beyond any doubt that between 1969 and 1996 you were involved on numerous occasions in engaging in indecent activity with young persons.   Often those persons were persons whom you had clearly inveigled into your trust.   In my view, this must amount to a pattern of serious offending in terms of s 87(4)(a) of the 2002 Act.

(b)      The seriousness of the harm to the community caused by the offending

[56]     Again, there can be little doubt that conduct such as yours causes serious harm to the community.    It affects not only the victims themselves but also their wider family.    It also spreads distrust throughout the community and unease that persons such as you may be active in the ranks of society.    The victim impact statements in the present case bear testament also to the real harm that offending such as yours causes to the persons who are directly affected by it.

(c)      Information indicating a tendency to commit serious offences in the future

[57]     In considering this factor, I have the benefit of several detailed reports.

Pre-sentence report

[58]     The   pre-sentence   report   prepared   for   the   District   Court   and   dated

28 September  2006  suggests  that  there  is  some  doubt  about  your  motivation  to address your desire for sexual arousal within the context of your sexual aberration for children.    It records that you had a “safety plan” which consists of not being involved in families with children and saying that you will never offend again.   This report assesses you as being at medium to high risk of re-offending because of the number of charges against you, your past offending pattern and the fact that you candidly admit that there could be other victims who have not yet been the subject of actual criminal charges.

Dr Dean’s report

[59]     Next there is a report prepared by Dr Dean, a Consultant Psychiatrist with the Regional Forensic Psychiatry Service in the Waikato Region.   He prepared a report dated 30 November 2006 for the District Court.    One of the matters that he was required to address in his report was whether you are likely to commit another qualifying sexual offence under s 87 of the 2002 Act so as to warrant the imposition of a sentence of preventive detention.

[60]     Dr Dean outlines your history in some detail.    It is clear from this that you grew up believing that sexual relationships between children were normal because that had happened to you at an early age.   It is also clear that you have had abnormal thoughts about sexual matters from an early age.   You described to Dr Dean sexual behaviour that included grooming children over a period of time.     You would expose yourself to children and ask them to masturbate you.   You described to him building a museum in Australia and involving in sexual acts with you a girl who was helping you on that project.    This gave rise to the charges in Western Australia in

1990.   You also describe babysitting the family in Australia and engaging in various episodes of sexual innuendo with the children of that family.   You told Dr Dean that you had developed a strong sexual desire towards children usually aged between

7 and 14 years.   You had no particular preference between males and females.   You also told Dr Dean that you had collected some sexually explicit material on teenage sex and that you would use these images for masturbation and to show children whom you were grooming.

[61]     It  is  clear  that  you  would  tend  to  fantasise  about  children  and  that  you enjoyed befriending and grooming them.      You describe distorted thinking, convincing yourself that you were looking for love and that your relationships with children were mutually satisfying.    You did not, however, consider the feelings of your victims.

[62]     Dr Dean reports that you say that you no longer have sexual fantasies about children.    You told him that you have developed a plan under which you will not allow  yourself  to  be  alone  with  a  child  and  you  have  avoided  entering  into friendships with family oriented friends.   You say that you will never apply for any position of employment that involves being around or near children.   You also say that you continue to receive counselling through the Jehovah Witness Church and that you are now well supported through that Church.    Members of the Church confirm that  your association with the Church is unlikely to lead  to  you  being exposed to young children in close proximity.

[63]     Dr Dean records that you rate your own risk of repeat sexual offending as a medium level risk.     You accept that, because of  your own history and sexual

attractions, you cannot be considered to have no risk.   You feel, however, that as a consequence of the things that you have learned in your treatment programmes, you can keep your risk well contained.   You also express some remorse over the events that happened many years ago and express sympathy towards the victims of your offending.   You have also indicated to Dr Dean that you are prepared to participate in any sexual offenders programme that the Court may direct you to attend.

[64]     Dr Dean notes that you do not have a psychiatric diagnosis but that you have described a pattern of behaviour consistent with paedophilia.   He says that it is not within his realm of expertise to make any definitive prediction of the risk that you are likely to commit another sexual offence.    He says, however, that there are a number of factors that do place you in a high-risk category.    These include your long history of  sexual  behaviour  towards  children.      That  pattern  of  behaviour appears to be fairly consistent and that involves the sexual touching of children between the ages of 7 and 14 years.   It has also included sexual touching with both girls and boys who are prepubescent.   Your pattern has been to groom a number of children over a period of time before involving yourself in sexualised relationships. Such behaviour places you, says Dr Dean, in a high-risk group for re-offending.

[65]     Dr  Dean  acknowledges,  however,  that  you  have  completed  a  number  of courses for sexual offenders to address your sexualised behaviour towards children. On the basis of this, and assuming that you have not committed any offences since your release from prison in Australia, Dr Dean says that it would appear that the sex offenders programme in Australia was helpful in reducing your risk of re-offending.

Treatment Completion Report

[66]     I have also been provided with a copy of the treatment completion report dated 28 September 2000 that was prepared in Australia after you completed these programmes for sexual offenders there.   That report records that after your release from prison in 1991 you attended four out of five modules of the community based sex offender treatment programme.   You missed the relapse prevention programme due to the expiry of your parole order.    It appears that you failed to take up this option on a voluntary basis.     Even so, you were viewed at that time, as having

developed insights regarding how your possibility characteristics and their origins would have contributed to your offending behaviour and that you had begun to deal with them.    You were classified at that time as having a low risk of re-offending with the caution that your risk level could well rise in circumstances where you felt alienated or isolated.   The report notes, however, that this classification was made in circumstances where you had failed to disclose your previous behaviour in New Zealand and, in particular, that you had failed to mention the conviction in New Zealand in 1969 for indecent assault.

[67]     The report then notes that you commenced that you commenced the intensive sex offender treatment programme at Casuarina Prison in November 1997, this being completed in August 1998.    The report says that you entered treatment with little conception of the personal changes that you needed to make to reduce your risk of offending.   You appear to have seen the treatment process as arduous and you are noted as having made only small gains as a result of this treatment.   Apparently you had little understanding at that time of the impact that you had on others, including your victims, and you adopted a victim stance yourself.

[68]     You then commenced the intensive sex offender programme at Bunbury in November 1999 and completed this on August 17 2000.      You apparently commenced this third programme with a strong sense of failure, distrust, extreme anxiety and anticipation of further failure.    The report says that your personality traits tended to limit your gains from treatment as they had done on the previous programme.    Even so, there were times on the programme when you had a strong sense of success and you were able to articulate a number of gains, including boundary recognition and an increase in empathy, both generally and in relation to your victims.   You also appear to have gained a recognition during this period of the consequences of your sexual behaviour to yourself.    You claimed at this time to have resolved many of the outstanding issues in connection with your family of origin.

[69]     The report noted that, although your claims appeared to be genuine, it was noteworthy that you had made similar claims in the past.   The report concluded:

Mr Burr has a lengthy history of  child sex  offences  and  an  entrenched pattern of self protection and self defeating personality traits which create barriers to progress and treatment.    Mr Burr is viewed as having made progress on the recent Intensive programme despite requiring further treatment and remaining at high risk of re-offending.   A deferral of parole at this stage might well serve to increase his risk of re-offence and he is more likely to benefit from treatment options in the community.

[70]     You were deported from Australia shortly after the completion of that report and it appears also that you have not undergone any further treatment since your return to New Zealand in 2000.

Report from Dr Morrison (Registered Psychologist)

[71]     I have also had the benefit of a very detailed report dated 9 December 2006 from Dr Morrison, a registered psychologist.   Dr Morrison provides comprehensive details of your background and the various offences that you have committed over the years.   I do not propose to cite from his report in detail, but I record that I have found it extremely useful in understanding the background to your offending.

[72]     Dr Morrison assessed you using various instruments designed to estimate the probability of sexual recidivism of a person in your position.    You had a score on the Static 99 instrument that indicated a high risk of sexual/violent re-offending after release into the community.     International research validating this instrument indicates that 39 per cent of individuals with comparable scores to you offend again in a sexual manner within five years of release from prison.   This number increases to 45 per cent after a period of ten years.   However, the additional static risk factor associated with an increased risk of sexual recidivism that was not assessed by the Static 99 instrument, and that is pertinent in your case, was the duration of your offending, which you record as having endured for over 40 years.

[73]     Dr Morrison also carried out the Psychopathy Check-List: Screening Version (PCL-SV) in order to obtain further actuarial evidence of the risk of serious re- offending.     Your  score  under  this  test  was  below  the  criteria  cut-off  score  of

16 identified from research into the risk of serious offending resulting in further re- imprisonment for violent or sexual recidivism.

[74]    Stable dynamic factors, namely those that may be open to change with appropriate treatment, were also identified using another test known as the Stable-

2000.   It identified a number of risk factors as being problematic for you including the fact that you do not have many significant social supports and none that could be used to mitigate your risk.    Moreover, you do not have a current partner and your previous relationships suggest difficulty in interacting with adult females.   Finally, Dr Morrison reports that, although you acknowledge some degree of risk, nevertheless your lack of disclosure about contact with potential victims suggest that you do not take seriously your reported self imposed conditions of risk management.

[75]     Dr Morrison’s conclusion is as follows:

Mr Burr’s current risk based on actuarial assessment is assessed as high.   A valuation of stable dynamic risk factors since his release from prison and in the past year, lends support to the Static Risk estimation and Mr Burr should be viewed as at a high risk of re-offending.   Factors that could mediate his risk would be his self reported relapse prevention strategy, but his lack of disclosure  with  respect  to  contact  with  young  children  means  that  little weight can be attached to his assertions that he is managing his risk in a meaningful manner.

[76]     Dr Morrison therefore assesses you as being at a high risk of further sexual offending.    He says that, if you are to receive a custodial sentence, it would be to your advantage if you were referred to one of the special treatment units for child sex offenders.

[77]     In considering the weight that I should give Dr Morrison’s report I bear in mind the submissions of your counsel regarding the alleged lack of disclosure about contact with potential victims.    This arises as a result of reports that you have involved yourself with a family having young children through a Neighbourhood Watch programme.    Apparently the mother of the children now regards you as in somewhat of a grandfatherly role.   You deny that this is the case, and say that your contact with her children ceased when they were at or under 2 years of age.    You support this by saying that the children were removed from the mother’s care some time  ago.      Such  investigations  as  have  been  made  appear  to  bear  out  your explanation on this point.

Conclusion

[78]     Viewing all the material in its totality, I must accept that there remains a risk that  you will reoffend in a sexual way in  the future.      Your  past  actions  bear testament to that, as does the fact that you appear to wish, even now, to minimise the culpability of your behaviour so far as the present charges are concerned.     As against that, I accept that it would appear that you have not offended over the past ten years (although four of these were spent in custody), that you appear to have some degree of insight into your problems and that you now acknowledge the need to have a “safety plan” in place to guard against future offending.

(d)      The absence of, or failure of, efforts by the offender to address the cause or causes of the offending

[79]     In considering this factor, I accept that arguments run both ways.    First, it appears from the reports that you do not, even now, have a completely clear insight into the reasons for your offending and what made you offend against your young victims.   On the other hand, I am satisfied that you did make efforts in Australia to address these issues by attending the courses to which I have referred.    It cannot therefore be said that there has been an absence of efforts on your part to address the cause or causes of your offending.   Neither can these efforts be said to have failed, because since you undertook the courses you have not been charged with any further sexual offences.   Nevertheless, it is clear from the material that is presently available that you still need to undertake further efforts in order to satisfactorily safeguard yourself from offending in the future.

(e)      The  principle  that  a  lengthy  determinate  sentence  is  preferable  if  this provides adequate protection for society

[80]     This factor suggests that, if at all possible, the Court should impose a lengthy determinate sentence rather than the indeterminate sentence of preventive detention.

Conclusion

[81]     I accept that you are right on the cusp of receiving a sentence of preventive detention.    Had I been considering what sentence to impose upon you when you returned from Australia in 2000, I have no doubt at all that a sentence of preventive detention would have been the only appropriate sentence to impose.   It seems to me, however, that I must take into account the fact that you appear to have remained trouble free for at least the last six years since your return to New Zealand.    This means either that you have taken on board the lessons to be learned from the programmes that you attended in Australia, or that, of your own accord, you have realised that your offending simply cannot continue.

[82]     Whilst I accept that there remains a risk that you may re-offend, I consider that that risk arises for the most part because of your acknowledged prior offending. In circumstances of significant prior offending, and particularly offending of this type, there must always be a risk that further offending will occur in the future.   It is also significant that one of the tests carried out by Dr Morrison, namely the Static 99 test, predicted that 39 percent of offenders would re-offend again after five years from the date of release.    You appear not to be within that category of offenders because you have now gone for more than six years without offending.

[83]     I consider that  in the present  case  this  particular  factor  tips  the  balance against the imposition of a sentence of preventive detention.     In reaching that conclusion, however, I have had regard to a number of other factors.    First, I have drawn support for my conclusions from comments made by the Court of Appeal in R v Parahi [2005] 3 NZLR 356. In that case the Court of Appeal allowed an appeal against a sentence of preventive detention imposed upon an offender who had indecently assaulted a 6 year old victim. The assaults including kissing on the face and touching inside her underwear around the genital area. The offender was at the time of the offending on parole from a four year sentence on charges involving sexual offending against two 12 year old girls. He also had an extensive history of offending covering a 20 year period including rape, “peeping tom” offending and admitted deviant sexual activity. He was assessed as having a high risk of serious recidivism within five years of his release.

[84]   The Court acknowledged that preventive detention is available in cases involving indecencies, as opposed to sexual violation, but said (at [86]):

That said, it must be recognised – as it was in Trotter (CA 253/03); Mist; and Dean - that the test may be met in an appropriate case, even where the relevant offences are indecencies, as opposed to sexual violations.  But that is because of the seriousness of their cumulative effect on the lives of their past victims and the likelihood of seriousness of future effect on the lives of future victims.  Such cases are likely to be exceptional, and will usually turn on persistent, knowing behaviour, despite firm warnings (although that is not an  absolute  prerequisite),  accompanied  by  the  necessary  cumulatively serious harm.  The sentence will not be appropriate to get indefinitely out of the way those whose conduct, although a nuisance, does not qualify as serious.  It would be quite wrong to resort to the sentence as, in effect, a “street-cleaning” exercise.

[85]     In Parahi the Court also made reference (at [87]) to the fact that, in finely balanced cases, the possibility of extended supervision orders on release may tip the balance against sentences of preventive detention for lower levels of sexual offenders.

[86]     Ultimately, I have concluded that a finite sentence can adequately achieve the principal purposes of the sentencing process.    In particular, I consider that it can achieve the objective of protecting the community from further offending by you in the future.

[87]     In addition to your apparently trouble free history over the last six years, the other factors that persuade me that a finite sentence is preferable in the present case are:

a)        The statutory recognition that a finite sentence is preferable if it can adequately meet the public interest and the legitimate purposes of sentencing.

b)Your age.   You are now nearly 64 years of age.   You are unlikely to be released before you are 66 or 67 years of age at the very earliest.

c)        The historical nature of the present charges.    They occurred many years ago and at a time when you were just 37 years of age.

d)The  fact  that,  as  I  have  already  indicated,  you  have  undertaken courses in Australia.

e)        The fact that you now appear to have a degree of insight into your offending and the need to keep yourself away from areas of risk.

f)        The  very  real  likelihood  that  you  will  be  subject  to  an  extended supervision order upon your eventual release.

g)        The fact that the finite sentence of imprisonment that I propose to impose will be sufficiently long to ensure that you are able to avail yourself of further treatment whilst in prison.

Sentences

[88]     I now impose the following sentences:

a)        On each of the charges involving the youngest complainant (CRNs

23513, 23514 and 23515) you are sentenced to four years ten months imprisonment.

b)On the charge relating to the middle complainant (CRN 23511) you are sentenced to four years six months imprisonment.

c)        On the charge relating to the eldest complainant (CRN 23512) you are sentenced to four years six months imprisonment.

[89]     All sentences are to be served concurrently.

[90]     Mr Burr, although the sentences that I have imposed mean that you will be eligible for parole in approximately 19 months, you should not have any expectation that that will in fact occur.    The Parole Board will need to make sure that it has made available to you every possible programme at its disposal to assist you in equipping yourself for your return to society.    You must accept that it is highly likely that you will serve a full two-thirds of your sentence before you are released.

That may well be the very minimum that the Parole Board requires in order to ensure that it minimises the risk of your re-offending when you are eventually released.

Name suppression

[91]     Up  until  now  you  have  been  the  subject  of  an  interim  order  for  the suppression of your name.   You now ask that that order be made permanent on the basis that publication of your name could adversely affect members of your family, one of whom suffers from schizophrenia.

[92]     In my view, however, it is important that members of the public know of your identity and the fact that you have been convicted of these offences.    That aspect of the public interest, in my view, clearly outweighs any problems that publication of your name may cause for your family.    For that reason I decline to make a permanent order suppressing your name from publication.   The interim order for suppression is now revoked.

[93]     Stand down.

Lang J