R v Cant HC Auckland CRI 2006-004-26731

[2010] NZHC 2029

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-004-26731

REGINA

v

LARRY GORDON CANT

Hearing:         20 May 2010

Counsel:         Christine Gordon SC and Sue Petricevic for Crown

Geoff W Wells for Larry Gordon Cant

Judgment:      20 May 2010

SENTENCING REMARKS OF HUGH WILLIAMS J

Offences:        Assault with intent to commit sexual violation (x1)

Sentence:        Preventive Detention.

Minimum non-parole period imposed of imprisonment for 6½ years.

Mr Cant, in times gone by it was normal for prisoners being sentenced to stand throughout a Judge’s remarks but sentencing comments have got a lot longer over the years and there are now a great many more issues that need to be covered and in your case there are more issues than normal.  So you and the escort can have a seat, thank you.

R V CANT HC AK CRI-2006-004-26731  20 May 2010

Introduction

[1]      As long ago as 19 February 2009, the prisoner, Mr Cant, was convicted by a

District Court jury on one charge of assaulting a woman on or about 30 December

2006 with intent to commit sexual violation on her.

District Court trial

[2]      The verdict came at the end of a trial which had several unusual features.  A sentencing in the High Court is not the place at which these are to be adjudicated upon, but because of the unusual background to the sentencing, some of those issues warrant noting – even if only to clear them away and concentrate on the principal issue  for  sentencing  -  namely  whether  you  are  to  be  sentenced  to  Preventive Detention or to a finite sentence with a minimum period of imprisonment to elapse before you become eligible for parole.   As I said earlier today in declining the application for an adjournment, a number of these issues are common both to sentencing and to that judgment.

[3]      Dealing first with some of the unusual features relating to the District Court trial.

[4]      First, you did not have defence counsel actually acting for you during the trial.  Mr Cordwell was appointed amicus curiae and participated to a considerable extent particularly when cross-examining the complainant because you were unable to do so under s 95(1) Evidence Act 2006.

[5]      Secondly, for various reasons, the trial which was initially set down for four days took 13.  In the run up to the trial, a number of lawyers acted for you – or at least were mentioned in the District Court Minutes and the like - as being involved. Throughout the trial  you were assisted by your McKenzie Friend, a  Mr Martin

Lyttelton – he is now a serving prisoner but he is an intelligent person - who was able to give material assistance to you during the trial, and of material assistance also during the hearings in this Court until Mr Wells was re-instructed on 3 February

2010.

[6]      Mr Cant, with Mr Lyttelton’s assistance, raised a large number of evidential, procedural and other objections during the trial and has maintained those ever since. They included applications under s 347 of the Crimes Act 1961 both before, during and certainly after the trial.   Overall, they amounted to several hundred pages of detailed critiques of the evidence, legal submissions and other issues.

[7]      Then on the Crown’s application on 31 July 2009, the trial Judge, Judge Gittos, declined jurisdiction to sentence you on the basis that Preventive Detention was possible.

[8]      This matter is going on appeal.   You have applied several times, including again this morning, to postpone the sentencing until after your appeal against conviction has been determined.   You intend to maintain the numerous evidential and procedural objections to what occurred during the trial - and Mr Wells said this morning, there were something like 14 grounds on which you are challenging your conviction.

[9]      But, of prime importance it would seem to the appeal against conviction, will be the assertion that, in the circumstances as they arose before, at the commencement of trial, and during your trial, you were not afforded the rights to which you were entitled under s 30 of the Sentencing Act 2002.  You will claim that you were not legally represented at the stage of the proceedings at which you were “at risk of conviction”.

[10]     That, in due course, will be a matter for the Court of Appeal.  As mentioned again earlier this morning, Ms Petricevic, junior counsel for the Crown both in the District Court and in this Court, prepared a helpful procedural chronology for this sentencing which showed that at least nine counsel were involved to greater or lesser extent up to the commencement of the District Court trial.  That included Mr Wells

for a period but omitted Mr Lawry who, with Mr Hart, seems to have been in the background of the matter throughout, and is now to be your counsel in the Court of Appeal,  Mr  Wells  said.    At  an  earlier  conference  in  this  Court,  you  said  that Mr Lawry was being kept (I think the word was) “clean” or “pure” to represent you on the appeal.

[11]     There can be no doubt that you knew of your right to legal representation, including legal aid, and you had the opportunity to exercise that right.  So it seems likely that the principal aspect of this matter on appeal will be whether you “refused or failed to exercise those rights to engage counsel or engaged counsel but subsequently dismissed him or her” – that is under s 30(2)(d) and whether s 30(4) applies.

[12]     In that regard it is of interest that in a memorandum signed by you for the District Court - it is actually dated 29 January 2008 but it must be 2009 - you said you are “writing today to confirm that I am happy to proceed to trial acting in my own defence supported by a McKenzie Friend” - subject to a number of issues you raised in that memorandum.

Matters in High Court preliminary to Sentence

[13]     Once  the  file  reached  this  Court,  in  order  to  ensure  you  were  not disadvantaged as far as the sentencing process was concerned the Court, and counsel, devoted considerable time and resources to the matter, convening a number of telephone and face-to-face conferences starting on 5 October 2009 and stretching out to April this year and now, of course, to sentencing today.  Mr Lyttelton was present at  all  conferences  up  until  recently.    Mr Wells  was  reinstructed  as  counsel  on

3 February  2010.    And  what  occurred  during  nearly  all  those  conferences  was recorded on the FTR system with transcripts being available to you and Mr Lyttelton

– and to the Court of Appeal, if they require it.

[14]     At various stages during the process in this Court, you or counsel have sought to have the Court deal with the question whether s 30 was complied with in the District Court.  The Court has declined to embark on a consideration of those issues,

they being matters for the trial Court or the Court of Appeal (See R v Condon[1]  R v

Chatha,[2] and Page v R).[3]

[1] R v Condon [2007] 1 NZLR 300 at 313-314, paras [23] and [24].

[2] R v Chatha [2008] NZCA 547 paras [194][196].

[3] Page v R CA4/00 6 June 2000 para [39].

[15]     Serious consideration was given to whether the circumstances of this matter indicated that a Disputed Facts hearing under s 24 of the Sentencing Act 2004 might be appropriate but on further investigation it became clear the issues you wished to raise in that regard would be the same evidential and procedural issues you want to raise on appeal and accordingly, it would not have been appropriate for the Court to embark on a s 24 hearing.

[16]     You were advised the Court would accept as proved the facts underlying the conviction for the offence charged under s 129 of the Crimes Act 1961 including aspects of the Police summary of facts but acknowledging that essentially every aspect of the factual matrix in the trial would be the subject of challenge on appeal.

[17]     The required Health Assessors’ reports have been furnished to this Court as a result of an order of the District Court.  On a number of occasions, you advised you wished to cross-examine the health professionals.  There may be power to do so in terms of R v D.[4]   Indeed the cross-examination began on 17 December 2009 but you abandoned your cross-examination.  It may have been at that point that you decided to obtain legal representation in relation to sentencing, first attempting to engage

Mr Jones QC and then Mr Wells.

[4] R v D [2003] 1 NZLR 41, 51 at para [52].

[18]     The sentencing was further postponed because you and Mr Wells wished to obtain assistance from Ms Bellve-Wack.

[19]     At several stages you asked the Court to postpone sentence.  At one stage the basis for that was that it should be postponed until a question of law reserved had been decided by the Court of Appeal pursuant to s 380(5) of the Crimes Act 1961. Since  no  question  of  law  was  reserved  by  the  District  Court  for  the  Court  of

Appeal’s decision, it is highly doubtful that s 380(5) is applicable but, in any case, the Court’s view was that it is preferable that all issues surrounding your sentencing, including the sentencing itself, be concluded in this Court.  You will then be able to raise all issues surrounding your trial with the Court of Appeal.  And of course, that observation echoes the comments I made in my judgment this morning.

[20]     Finally, on 15 January 2010, Lang J dismissed an application by you for habeas corpus brought on the basis that you had not been afforded your rights under s 30 and accordingly this Court had no capacity to remand  you in custody nor sentence you.  An appeal against that decision was dismissed by the Court of Appeal

on 8 February 2010: Cant v Manager of Mt Eden Prison.[5]

[5] Cant v Manager of Mt Eden Prison [2010] NZCA 1.

Sentencing Remarks:

1    Facts

[21]     With all those issues cleared away and none impacting on sentencing - and I repeat the assurance I gave you earlier this morning that none of those issues will impact on the sentencing - we can proceed to consider the appropriate sentence to be imposed on you.

[22]     As noted, at the conclusion of the 13 day trial in the Auckland District Court, you were convicted on one count of assault with intent to commit sexual violation on a named woman contrary to s 129 of the Crimes Act 1961, an offence which carries the maximum penalty of 10 years in prison.

[23]     Accepting that all or nearly all of what follows is under contention by you, the Police Summary of Facts said that the woman left a bar in central Auckland about 2.30am on 13 December 2006 to walk home.   She noticed you sitting on a ledge during her journey and you followed her.  When she was in Mayoral Drive she was pushed into a garden by you, you placed a hand around her throat and another hand on her knee.  After some conversation, you are said to have kissed her against her will and then tried to undo the top button of her jeans while holding her in a

manner which made it difficult for her to breathe.   You fondled her breast on the outside of her clothing and attempted to put your fingers down the front of her jeans and digitally penetrating her, saying you wanted sex.   The woman yelled out and passers-by came to her aid and you ran away.  She identified you a couple of weeks later and there was DNA evidence in the District Court trial.  I understand now you might  be  challenging  this  but  in  the  District  Court  trial,  at  least,  identification through DNA was not in issue.

[24]     As mentioned, you have a large number of objections to that description of events including that the woman was a prostitute, she was illegally in this country, the events she described did not happen or did not happen in the way she described and that it was unlikely that the events occurred in close proximity to the Auckland Central Police Station.  You said she thought you were dealing in methamphetamine and she assaulted you to get the drugs herself and some cash from you.

[25]     In a memorandum filed by you on 16 February 2009, it makes clear that her veracity and reliability as a witness is central to your defence in that case and that you say she had a motive to make a false complaint against you because she was an overstayer and had been working illegally and could not qualify for extension of her visa to be in this country.

[26]     It is unnecessary to deal more extensively with the facts.  The jury’s verdict means that it accepted that it was proved beyond reasonable doubt that you assaulted the woman on the morning in question and that you did so with intent to commit sexual violation on her.  Mr Wells makes clear in his submissions, though of course you challenge the conviction, you accept at least for sentencing purposes that that is what the conviction means.

2         Previous Convictions

[27]     You are now aged 41.  You have some 133 previous convictions accumulated in the period (omitting Youth Court matters) from 1985-2007.  Of those, about 31

are for violent offences;  there are some 71 convictions for burglaries and dishonesty offences;  and 17 offences for driving - plus a number of miscellaneous matters.

[28]     Of significance to the possibility of Preventive Detention, as I discussed with Mr Wells a little while ago, is that your only directly sexual offending is a conviction for unlawful sexual connection for which you were sentenced on 30 May 1991 to imprisonment for one year nine months.  However, in terms of whether you qualify under s 87 of the Sentencing Act 2002 for the possible imposition of a sentence of Preventive Detention it is relevant to note the following convictions:

a)        Wounding with intent to cause grievous bodily harm under s 188 on

31 December 2006;

b)        Aggravated robbery under s 235 on 3 October 1996;

c)        Unlawful   sexual    connection   under    the   former    s 128(1)(b)    on

20 April 1990.   Although that offence has been changed under the

Crimes Amendment Act 2005, that does not impact on sentencing);

d)       Two convictions of injuring with intent to injure under s 189 both on

23 August 1994 and 12 February 1990.

[29]     As I commented to Ms Gordon, though undoubtedly serious offences, it does not seem that your convictions for assaulting a person with a blunt instrument on

26 April  2006  come  within  the  qualifying  offences  listed  in  s 85(5)(b).    The attempted aggravated robbery for which you were convicted on 23 June 1994 is only doubtfully a  qualifying  offence  because  it  was  no  more  than  an  attempt.    The threatening to kill conviction on the same date would have been under s 306, which is not a section listed in s 85(5)(b).   The convictions for assaulting the Police on

16 June 1994, 18 January 1994 and 5 November 1993 were presumably brought under s 196 and accordingly are not qualifying offences under s 85(5)(b).  Similarly, the male assaults female convictions on 1 January 1990 and 9 May 1990 would have been under s 194 and accordingly do not qualify, nor does the assault with intent to injure under s 193 for which you were convicted on 28 February 1989.

3         Reports

[30]     Turning to the reports furnished in relation to you, the first is the pre-sentence report but that is of limited assistance since you refused to be interviewed for that purpose.  However, the report noted the offending for which you are to be sentenced today occurred within two months of your release on parole, and the Probation Officer assessed you as having no remorse or insight into this offending.  You were released on 18 October 2006 and the matters at the heart of this trial occurred on

13 December 2006.

[31]     The Probation Officer said that your resort to violence is termed “reactive” with  sexual  offending being  an  exception.    The  report  said  you  cannot  receive criticism without becoming “extremely reactive” and that “anyone who encounters Mr Cant becomes the subject of his rage should they challenge his behaviour”. Narcissism  was  said  to  be  a  recurring  theme  and  a  Probation  Officer  who interviewed you in 2006 said that it was “all about him and what the system has done to him” and that  you are “probably the most volatile person  I have ever come across”.   Accordingly, the conclusion is that you are “an extremely disturbed individual who remains at very high risk of re-offending” and someone who “cannot function in the community”.

[32]     You  have  criticised  certain  aspects  of  the  pre-sentence  report  -  with submissions made by Mr Lyttelton on your behalf - and you particularly challenge the suggestion of narcissism.

[33]     There are the three reports before the Court from health professionals.

[34]     The earliest is dated 24 March 2009 from Dr Djokovic, a psychiatrist.  That report was prepared under s 38(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 and not under s 88 of the Sentencing Act.

[35]     Again  you  declined  to  participate  in  the  assessment  and  accordingly Dr Djokovic had to rely on earlier reports and other material stemming from your offending history.

[36]     Dr Djokovic said you appeared on numerous occasions, before you were 15, before  Youth  Courts  involving  dishonesty  offences  and  your  violent  offending started in 1988 or 1989.   Over the ensuing eight years you committed 36 other offences for which you were sentenced to nearly 10 years imprisonment in total.

[37]     The unlawful sexual connection conviction was said to follow a jury verdict of sexual violation by digital penetration on the eight-year-old daughter of your then de facto partner.

[38]     The report recounts the escalation of your violent offending, covering the attempted aggravated robbery, threatening to kill, grievous bodily harm offences and injuring with intent to injure during a pre-sentence period.

[39]     You were granted early release on 23 September 1996 and offended a few days later, having also taken no part in a directed programme, and you were re-called to prison on 27 September 1996.

[40]     On 31 December that year you were convicted for wounding with intent to cause grievous bodily harm while on remand in prison and sentenced to 10½ years imprisonment.  You were kept in the maximum security prison for nine years and released back into the community in October 2006.  To quote, from the open letter you wrote to the media at the time and to the Government and officers of the criminal justice system,  your release was to “re-offend once gain”.   The report quotes the letter saying

I am released from my prison cell (cage) without any control, restraints and likely to commit specific offences such as killing or murder (mass murder) what do I have to lose?  This letter is an attempt to warn all those who are concerned for their safety, their families and have a true interest in public safety and for justice.

[41]     As I mentioned, the offence for which you are now to be sentenced occurred on 13 December 2006, less than two months later.

[42]     Dr  Djokovic  comments  that  you  have  regularly  reoffended  within  brief periods of release from prison and have also offended whilst on parole or remand.

She said you do not “take into consideration society rules and disregards the rights of others”.

[43]     Earlier  reports  indicated  abuse  and  neglect  in  your  childhood  including stealing food in order to survive.  Your mother was said to be a chronic alcoholic and your father violent.  That led to your being made a ward of the State at the age of nine.  Dr Djokovic comments:

The  current  offence  represents  an  increased  magnitude  of  his  previous violent offending.  This long-standing pattern of disregard for and violation of the rights of others is indicated by his previous offending and the traits of diagnosis of anti-social personality disorder.

[44]     The report notes you have had a number of treatment opportunities in which you have not engaged or engaged only superficially.   At one of the conferences preceding today’s sentencing, a list of some 10 treatment opportunities was produced covering the period 1992-2005, all of which show a refusal to participate, procrastination, refusal of interviews or minimal involvement in the proffered programmes.  I recognise from what Mr Wells has said that you take a different view of that and say that you are willing to engage in the programmes but for various administrative reasons that did not come about.

[45]     Dr Djokovic quoted from a 14 January 1997 pre-sentence report saying:

When at liberty Mr Cant’s lifestyle, substance abuse and choice of associates has been such that further offending has been almost inevitable.

[46]     Turning to risk assessment, the psychiatrist’s view was that you manifested several factors that made you at “significant risk of offending”, including sexual crime against a child, assault on a woman in this case who was unfamiliar, multiple offences of sex and violence against numerous victims, including from a young age. These “position Mr Cant amongst those sexual abusers who require treatment and close supervision” especially when allied with your refusal to participate in assessments and accept assistance.

[47]     All of that led Dr Djokovic to conclude:

It’s my opinion that on the basis of the current clinical knowledge and availability of the current clinical studies, Mr Cant attracts the category of high risk of reoffending.

[48]     Through  Mr  Lyttelton,  you have produced  a lengthy and detailed  list of comments and criticisms of Dr Djokovic’s report, but they were largely comments on observations she had made and terms she used.  The observation was made that her conclusion differed in certain respects from those of the other health professionals.

[49]     Dr Pillai, another psychiatrist, provided a report dated 22 June 2009.  It is of interest that amongst the material he took into account was a psychological report provided by Ms Bellve-Wack dated 17 May 2004.

[50]     Dr Pillai, like Dr Djokovic, was hampered by being unable to interview you (although you sent Mr Lyttelton to discuss matters with Dr Pillai and later wrote saying Mr Lyttelton had recommended you not meet either party).  Your refusal to meet Dr Pillai meant the latter was unable to provide a definitive assessment of the risk  of  future  offending,  though  the  material  he  had  available  enabled  him  to comment on other issues.

[51]     On pages 4-7, Dr Pillai recounted a lengthy excerpt from Ms Bellve-Wack’s report concerning your background, noting, amongst other things, that “intimate relationships of any duration have been sparse due to his lifestyle” and substance abuse.   The only conviction for sexual offending was discussed.   The escalating seriousness of your convictions was noted including an early release from prison in the mid 1990s to join a substance abuse programme with breaches of probation and offending occurring shortly afterwards leading to the 10½ year term.   Ms Bellve- Wack said you became “increasingly violent and reckless”.   Your worsening behaviour probably resulted from substance abuse.

[52]     Dr Pillai noted the frequent and continuous conviction history interrupted only by periods in custody.  The circumstances of the aggravated robbery conviction in 1996 were discussed, as was the conviction when “Mr Cant stabbed (slashed) his brother whilst in custody”, his brother being a co-offender in earlier robberies.  I note

there Mr  Wells’  explanation  of  that  this  morning -  that  that  was  following the revelation of abuse of a niece who had just died by your brother.

[53]     The 2006 conviction for assault with a blunt instrument also occurred whilst you were in jail.

[54]     Dr Pillai also cited from your letter to the public of 9 March 2006, but added a quote where you asked “Why not take dozens of lifes kill dozens of people or as many as I can before I am killed by police?”

[55]     Dr Pillai reviewed your past psychiatric history and noted that Ms Bellve- Wack’s report was produced under s 107 of the Parole Act 2002 relating to an application for an extended supervision order.   It criticised the Department of Corrections for over-estimating your score on a check-list predicting future risk and under-estimating your potential for treatment.   Her report, however, did note you have “a large number of static and dynamic risk factors for future violence”.

[56]     Risk factors for future offending in Dr Pillai’s report, most obviously, were your “very significant history of past offending ... within a variety of domains [in] ... a lifelong pattern of rule violation”.  There was no “discernible pattern or sustained deviant sexual preference” but the information suggested:

That Mr Cant’s sexual offending occurs as part of a wider repertoire of opportunistic anti-social and criminal behaviours.  Therefore, on the basis of the information available there is no evidence that this particular sexual offence is any more likely to be repeated in the future than other offences, for example theft or burglary.

[57]     However, you have “developed and maintained cognitive distortions he uses to justify rule violation and anti-social behaviour” with those attitudes – as shown in the letter – increasing the likelihood of future offending.  Dr Pillai was of the view that therapeutic interventions might assist but noted your refusal or withdrawal to participate.

[58]     Dr Pillai’s conclusion was:

Mr Cant has a consistent history of offending whilst not in custody.   This offending has mainly been of property type but does include previous sexual

and violent offending and does show a widespread and versatile pattern suggesting opportunism and  little  regard  for  rules and  law  while in  the community.  In custody, Mr Cant has been frequently at odds with criminal justice and custodial staff ...

With respect to the likelihood of a recurrence of the index offence there is no pattern  of  sexual  offending  that  is  apparent.     However,  the  limited information available to me from Mr Cant’s files, mainly pertaining to court and custodial matters, suggests to me he is more likely than not to commit acts of violence in the future.

[59]     Mr Lyttelton’s comments on your behalf largely revolved around the reasons for you not being interviewed though it concluded that Dr Pillai’s report is the “least biased of the three reports and, through his quoting from Ms Bellve-Wacke’s report, gives balance.”

[60]     A   psychological   assessment   dated   22   June   2009   was   furnished   by Ms Camilleri.  She noted you disputed the need for such an assessment because of the belief you had not received a fair trial and, when told the assessment would nevertheless   go   ahead,   “Mr   Cant   threatened   the   psychologist”.      Through Mr Lyttelton you refused to be interviewed.  The background material available to Ms Camilleri also included Ms Bellve-Wack’s report but included a large volume of other Corrections material and similar sources.

[61]     After noting nine previous psychological reports on you and your continuing stance   that   you   were   “wronged   by   the   Justice   and   Corrections   systems”, Ms Camilleri reviewed your conviction history including the incidents in prison. She said that:

What is apparent through Mr Cant’s recent behaviour is that a particular sexual theme is emerging which is considered to be indicative of a level of sexual pre-occupation.

She retracted aspects of that comment in cross-examination and there is some force in the fact that that comment appeared to be based on a hearsay comment from someone else whose recollection was not tested.   Nonetheless, that did not affect Ms Camilleri’s conclusion.

[62]     She noted your convictions on a wide range of offences and that “criminal versatility has been associated with risk of further serious offending” with your

behaviour, even in jail, “indicating a level of sexual pre-occupation” which is “one of the acute variables associated with sexual recidivism”, relying on the facts of the attempted aggravated robbery in 1994, and the facts to which Ms Gordon drew attention to this morning.  Ms Camilleri’s view was that “Mr Cant’s speed for sexual recidivism is very high” with you having “generally seriously offended violently or sexually within days or months of being released from prison” and with at least two serious violent offences committed whilst in prison on remand.  She noted your use of weapons, “revenge-focused violence” and “he does not appear to be responsive to authorities or deterred by legal consequences”.

[63]     She then reviewed  your background concluding that “your offending has ranged from being premeditated to impulsive revenge focussed violence”.

[64]     After  reviewing  your  previous  treatment,  Ms  Camilleri  said  it  had  the hallmarks of you not refusing treatment but circumventing it and concluded (at para

20 from her report):

In summary, Mr Cant has not participated in any treatment, either individual or group based, to target his rehabilitative needs of propensity for sexual/violent offending, substance abuse, criminal associates, impulsivity, poor  problem solving  and  lifestyle  imbalance.    Taking  into  account  his personality characteristics and past misuse of treatment opportunities, even if Mr Cant agreed to attend treatment sessions, it would be unlikely that there would be any significant treatment gains.   His prognosis of successfully addressing his treatment needs is therefore considered to be extremely low.

[65]     She  detailed  treatment  considerations  noting  your  “self-justification  for violating the rights of others, entitlement beliefs, as well as a pervasive distrust and disregard of others”.  She then turned to the potential to reoffend.

[66]     Based on an acknowledged risk actuarial measurement she said that “you had a RoC’Rol score that indicated a “very high” risk of serious recidivism within five years of  release,  a result which was repeated  with the PCL:SV prediction tool. Further, the Violent Risk Scale gave the same reading having regard to your “violent lifestyle,   criminal   attitudes,   interpersonal   aggression,   substance   abuse,   poor behaviour controls, use of weapons, poor compliance with community supervision, avoidance of treatment and other measures”.

[67]     You were in the medium to high category, in her view, for risk of sexual offending and in the high risk group under the Stable 2007 tool.  That particularly arose because of your poor capacity for relationship stability and other factors.  She quoted your statement to a psychiatrist in 2001 that you “tended to protect himself by firing a pre-emptive strike at them [people] to ensure he did not get hurt in the future’”.

[68]     Ms Camilleri’s conclusion was (at para 42 from her report) that:

It  is  considered  that  Mr  Cant  is  at  a  very  high  risk  of  serious  violent offending and  high  risk of  sexual  re-offending.    Given  that  community sentences have not previously deterred him from offending, his risk is considered to remain at this level.  His risk of recidivism when released into the community is extremely fast for serious reoffending.  He has entrenched personality characteristics of grandiosity and manipulation and is anti- authoritarian,  challenging  the  system  whenever  he  has  the  opportunity. Thus, taking into account all these factors it is considered that even if he is willing  to  attend  treatment,  the  prognosis  of  treatment  is  likely  to  be extremely poor and thus his risk of violent and sexual recidivism would be considered to be long standing.

[69]     She was cross-examined during the lead up to sentencing.  The general thrust of the cross-examination was that her conclusions were exaggerated or poorly based

- especially in the sexual offending area - and could not be properly drawn from the available material.

[70]     Mr Wells essentially repeated that submission today.

[71]     In relation to experts’ reports, it remains to add that although the sentencing was adjourned to enable Ms Bellve-Wack to be consulted and, perhaps, to provide a further report, Mr Wells’ submissions on your behalf, after he discussed the issues with Ms Bellve-Wack, did not produce any further material beyond that already covered.

Crown’s submissions

[72]     Ms Gordon SC, said the Crown’s position is that you “present a significant and ongoing risk to the safety of the community such that a sentence of Preventive Detention should be imposed with a minimum period of imprisonment before parole

eligibility of at least five years”.   That was her initial statement of the statutory minimum if prevention detention is imposed.   Later in the Crown’s submissions, they sought a minimum period of 10 years.

[73]     By way of background, the Crown made the point you were released from a maximum security prison in October 2006 having served nine years of a sentence of

10½ years imprisonment for seven offences including wounding with intent to cause grievous bodily harm by stabbing your brother when you were both on remand.  The offence for which you come to be sentenced today was, of course, less than two months after your release, and the 10½ year imprisonment term was for offending which commenced four days after release from a four year term.   That term was imposed on attempted aggravated robbery and threatening to do grievous bodily harm in strikingly similar circumstances to the present.

[74]     The Crown then recounted the facts of the unlawful sexual connection by digital penetration, then the purposes of sentencing, and submitted that the aggravating features of this offending were the victim’s vulnerability and the premeditation shown by following her for several hundred metres.  There were no mitigating features.

[75]     As to the preferable finite term of imprisonment, Ms Gordon drew attention to a number of similar cases:   R v T,[6]  R v Pohe,[7]  R v Atkinson,[8]  some of which featured guilty pleas but which indicated sentencing ranges between six and nine years.

[6] R v T CA485/95, 12 June 1996

[7] R v Pohe CA105.04, 2 August 2004.

[8] R v Atkinson CA537/99, 25 May 2000.

[76]    Ms Gordon submitted, that any finite sentence should start at six years imprisonment.  Because of your previous convictions and offending whilst on parole or soon after release and escalation of offences, any finite sentence should be of about seven years imprisonment with a minimum period of two-thirds of the full term.

[77]     But, that notwithstanding, the Crown submitted that Preventive Detention is the appropriate sentence, relying on R v C.[9]

[9] R v C [2003] 1 NZLR 30 at 33-34, paras [5] and [6].

[78]   The submission was that your record made you eligible for Preventive Detention,[10] once qualifying offences were taken into account.  Under R v McGee[11], the Crown said that all your previous convictions could be taken into account.  That showed a high degree of likelihood that you would commit other qualifying sexual or violent offences if released at sentence expiry date,[12].   There was a pattern of serious offending disclosed by your history, escalating in seriousness over time; serious harm to the community;  proved tendency to commit serious offences in the future having regard to the past history and little effort to address the causes of your offending.   A lengthy determinate sentence was inappropriate given the ever- lengthening periods of imprisonment which had not resulted in your not committing the present offence.

[10] Section 87(2)(a)(b).

[11] R v McGee (1995) 13 CRNZ 108 (CA).

[12] Section 87(2)(c).

[79]     Her submissions then detailed the Health Assessor’s reports but no further reference to those is required, though the conclusions were pointed to by the Crown.

[80]     Section 89, was then covered and the two-step process in R v C and the assessment of what minimum period reflects the gravity of the offence on the basis of sentencing principles and whether that period is adequate for public protection. The length of any finite sentence is a useful comparator: R v Johnson.[13]

[13] R v Johnson [2004] 3 NZLR 29.

[81]     I then summarise the term of imprisonment for which the Crown contended.

[82]     Four-and-a-half  years  imprisonment  might  have  been  the  minimum  non- parole period if a finite sentence were imposed but substantially more than five years should be imposed if Preventive Detention were to be the sentence.   Ms Gordon submitted that given a previous jail term of 10½ years imprisonment with nine years

served led to almost immediate reoffending, a minimum period of imprisonment before parole of at least 10 years was justified in this case.

[83]     The Crown filed supplementary submissions on 3 May 2010 arguing for a sentence of Preventive Detention because of your lack of insight, drawing upon R v Gately,[14] R v Jellyman.[15]

[14] R v Gately CA370/01, 25 February 2002.

[15] R v Jellyman High Court Wanganui CRI-2006-83-2875 28 April 2008, Gendall J.

[84]   Crown counsel said the reports showed you lacked insight, took no responsibility for your offending, and lacked any genuine desire to rehabilitate yourself.

Defence submissions

[85]     Mr Wells’ submissions made clear your refusal to accept the Summary of Facts, though accepting the fact of conviction and the consequential imposition of a jail term.  Your contention was that the complainant’s evidence was false, the effects on her were fabricated, particularly any suggestion she thought you intended to kill her.   Your position was that the information before the Court did not lead to the conclusion that the s 87(2)(c) threshold had been reached that you would be likely to commit qualifying sexual or violent offences in the future.

[86]   Mr Wells’ submissions were that rehabilitation and reintegration were significant statutory purposes of sentencing and should be given weight.

[87]     Although the present offending occurred shortly after your release, Mr Wells submitted the aggravated robbery conviction and attempted aggravated robbery were not sufficiently comparable to lead to any conclusion that s 87(2)(c) was satisfied - and that might apply to the other convictions for violence.

[88]     He  emphasised  -  and  we  had  some  discussion  about  that  -  your  single previous conviction for sexual offending, including its age, and the factual differences.

[89]     Mr Wells reviewed the Health Assessors’ reports and I will deal with those in more detail in the transcript.   He noted Dr Pillai’s inability to provide a full assessment and suggested, because of the lack of interview, that should similarly apply to the other reports.  He recalled your concerns relating to false or distorted information and errors and bias in the reports made at an earlier stage and still maintained.  He said the Court should accordingly have reservations about relying on the reported conclusions.

[90]     He acknowledged your history of offending but noted the variety of offences of which you had been convicted to suggest that each was discrete and there was no pattern.  Any violence in your background was at the lesser end of the scale thus not posing serious harm to the community.  Preventive Detention had never previously been sought.  Mr Wells made the point this morning, that you had never even been warned this was in prospect.

[91]     He emphasised the doubts expressed by the health professionals as to the possibility of future offending and the high risk of re-offending did not equate to the certainty or likelihood of qualifying offences being committed.

[92]     He stressed the caution expressed by Ms Bellve-Wack in the passage cited from her 2004 report and suggested in his oral submissions that the fact that you have not so far involved yourself in meaningful rehabilitative programmes resulted from misunderstanding and mismanagement – not refusal.

[93]     Overall, he said, a sentence of Preventive Detention was not the appropriate sentence.

Evaluation and Decision

[94]     Mr Cant, the Court’s obligations are to endeavour to fashion a sentence which will, hopefully, render you accountable for the harm done to the victim and the community, try to promote a sense of responsibility in you and, of course, to denounce your conduct, deter others, and protect the community.  The sentence must reflect the gravity of your offending, the seriousness of the offence and the effect on

the complainant.  The aggravating features of the offence include the actual violence you used, her vulnerability as a woman, and the effect on her, and the possible degree of premeditation.

[95]     More  important,  however,  is  your  previous  offending  which  affects  the outcome irrespective of the type of sentence imposed.

[96]     There were, as the Crown says, no mitigating features.

[97]     Looking first at the statutory preference for a finite sentence, the maximum sentence  for  assault  with  intent  to  commit  sexual  violation,  as  I  mentioned,  is

10 years imprisonment.  Having regard to the circumstances of the offence and the authorities to which the Crown refer, it is clear the appropriate starting point for sentencing you after trial would be at least six years imprisonment, with reference to cases such as Pohe – although there were factors of home invasion and numerous convictions in that case which are lacking in yours.

[98]     Similarly in Atkinson, although there were previous convictions for sexual offending the case does have some factual echoes of your offending and although a sentence of Preventive Detention was upheld on appeal the Court said that a sentence of eight to nine years imprisonment would have been unimpeachable.

[99]     On that basis, if a finite sentence is to be imposed, the circumstances of this offence would indicate a starting point of six to seven years imprisonment.   Your previous record – although containing only one previous sexual offence – shows considerable resort to violence, such that the sentence to be imposed should be approximately eight years imprisonment and the minimum period of imprisonment to be imposed should be two-thirds of that term as your release after one-third would be insufficient deterrence, denunciation and punishment having regard to the whole of your background.

[100]   So  I turn  to  the  possibility of  a sentence  of  Preventive Detention  being imposed.

[101]   As  Mr  Wells  concedes,  the  criteria  appearing  in  s 87(2)(a)  and  (b)  are satisfied.  Your history of qualifying sexual or violent offences are those I previously listed.

[102]   The critical question is accordingly whether the Court is satisfied you are likely to commit another qualifying sexual or violent offence if you were released at your sentence expiry date.

[103]   In that regard, it is important to note that the qualification is the likelihood to commit “qualifying sexual or violent offences”.   Seeing Parliament has used the word “or”, it follows that the likelihood of your committing either qualifying sexual or  qualifying  violent  offences  on  release  should  be  taken  into  account.    That approach both diminishes the impact of your having only one previous qualifying sexual offence, and it is also of importance to note that the conviction for which you come to be sentenced is for assault with intent to commit sexual violation - that is to say, implicit in the conviction, is both a sexual component – intent to commit sexual violation – and a violence component – assault beyond the assault necessarily involved in the intended sexual violation.

[104]   The focus therefore must be on the likelihood of your committing further offences of one variety or the other, or both, if released at your sentence expiry date.

[105]   In looking at the criteria in s 87(4), it is first important to note that the Court must take account of any pattern of “serious offending” or a “tendency to commit serious offences”.  That is to say, any “serious offences” not just “qualifying” sexual or violent offences.

[106]   Then, looking at the pattern of serious offending disclosed by your history, it must first be said there can be no doubt whatever that you would commit further offences on your release.  On a number of occasions in the past you have committed offences, including serious offences, within days or weeks of your release or when you were still on parole or remand.  Indeed, on some occasions you have not even been released when you have committed offences and have offended whilst still serving a jail term.  You have spent a high proportion of your adult life in jail and

whatever sentence is imposed on you today will simply continue the life you have set for yourself.

[107]   So, it may be a melancholy prospect, but the Court’s view is that there can be no doubt you will continue to offend in the future - either on release or beforehand. And, having regard to your conviction history, there can be no doubt that your offending has been serious and there is no reason to suppose it will not be serious in the future.  Even if it may be a little more doubtful that your future offending will be of a sexual nature - and I take the view that Ms Camilleri’s conclusion about sexual re-offending is not as substantially based as the conclusions of the health professionals concerning violent offending - there can be no doubt that your future offending will include violence and probably qualifying offences under s 87(5).

[108]   There is really no contest that the harm you have caused to the victims of your offending has been serious to the point where some of  your victims have justifiably felt their life was under threat.

[109]   Jumping forward to the efforts you have made to address the causes of your offending, it is clear from the reports of the health professionals that you have been offered numerous opportunities for treatment and rehabilitation over the period of nearly 20 years but have not participated, or participated in any committed sense.

[110]   It is acknowledged that you contend that this lack of participation is because of varying management failures, but the observation must be made that according to the material before the Court on occasions when there has not been an outright refusal by you to participate in rehabilitative treatment because you did not believe there was a need for it, you have adopted dissembling tactics or have sought to impose conditions – such as the presence of your lawyer – designed to frustrate the possibility of treatment.

[111]   The conclusion must be that if you were committed to the notion of accepting treatment for your anti-social personality disorder and the other conditions from which you suffer as described by the health professionals, you would wholeheartedly have embraced the offer of treatment and not sought to evade it.  The view must be

that although you might consider you were justified in the stance you have taken in relation  to  the  various  treatment  opportunities  offered,  there  is  in  your case  an absence of or failure of efforts by you to address the causes of your offending.

[112]   The remaining question is whether there is information available indicating you would have a tendency to commit further serious offences on your release.

[113]   Again, you have endeavoured to frustrate the provision of the required health professionals’ reports by declining to be interviewed.  You may again take the view you were justified - or that others were at fault in that regard - but the conclusion is that you declined to participate in the assessment process, for whatever reason, and your declining so to do is a factor from which an inference may be taken as to your recognition as to the likelihood of your committing serious offences in the future.

[114]   As  the  health  professionals  say,  the  surest  indication  of  likely  future offending is a history of serious offending in the past.

[115]   You  take  the  view  the  health  professionals  drew  their  conclusions  from second-hand, unreliable or dated sources, and their views were biased or over-state the position.

[116]   In that respect, not only has particular regard been paid to the reports from Doctors Djokovic and Pillai and Ms Camilleri, but reliance has also been placed on the  extensive  citation  from  your  psychologist,  Ms  Bellve-Wack,  appearing  in Dr Pillai’s report.

[117]   There is no reason to prefer one health professional’s report over another. However, there is a commonality of conclusion – not surprising given the common historical material on which they were based.  Each of the health professionals has conscientiously considered all the material available to them and have reached views

– though variously expressed – that your previous history and all the other circumstances relating to you mean it is highly likely you will commit further serious violent or sexual offences on release.  Indeed, your open letter of March 2006 says as much.

[118]   Though you debunk Ms Camilleri’s report, her conclusion that you are at “very high risk of serious violent offending and high risk of sexual reoffending” is not greatly dissimilar – I made a comment about what you said about sexual offending – and at least in relation to violent offending she reaches the same view reached  by  Dr  Djokovic,  Dr  Pillai  -  whom  you  accept  -  and,  inferentially,  by Ms Bellve-Wack.

[119]   The  only  conclusion  realistically  open  therefore  is  that  the  information available to the Court satisfies s 87(4)(c) and demonstrates a tendency or a likelihood on your part to commit serious offences in the future, having regard to all the factors discussed, particularly your conviction history, and you future offending will include serious qualifying offences.

[120]   The final balancing act is accordingly whether a finite sentence should be imposed in preference to Preventive Detention.

[121]   In that regard the watershed criterion is whether a sentence of Preventive Detention is necessary to protect the community from you, someone who, it must be said, poses a significant and ongoing risk to community safety.

[122]   If a finite sentence were to be imposed, for the reasons outlined there is no doubt that you will continue to offend either in jail or shortly after your release, and the imposition of a minimum period of imprisonment would merely postpone that inevitability.

[123]   Secondly, your offending history, its escalating seriousness and your rapid re- offending - whether violently, sexually or both on release - makes it clear you are a significant and ongoing risk to community safety.

[124]   The Court’s view, therefore, is that the preference for a finite sentence will not achieve the appropriate protection of the community from the risk you pose, in the circumstances of this case.

[125]   Accordingly you are sentenced to Preventive Detention.

[126]   Section 89 requires the imposition of a minimum period of imprisonment of at least five years.  The Court’s view is that that minimum imposed should roughly equate with the minimum period of imprisonment that would have been imposed had you been sentenced to a finite term.

[127]   Despite the Crown’s submissions, the minimum period which you must serve before you become eligible for release is accordingly one of six-and-a-half years. That reflects the gravity of your offending and the principles of sentencing in the Sentencing Act.  This was an offence which is serious but not as serious as many another sexual offence that comes before the Court but it is aggravated by your lack of insight, and your lack of willingness to address rehabilitative treatment.   The period that the public needs protection from you is that period in the Court’s view.  It is less than the Crown presses for because you need to have some incentive both to engage in rehabilitative treatment and to retain the hope of your release from prison, even under life-long supervision in the future.

[128]   Ultimately, therefore, the conclusion is that you are sentenced to Preventive

Detention with a minimum period of imprisonment for six and a half years.

Stand down.

.................................................................

HUGH WILLIAMS J.

Solicitors:

Crown Solicitor, PO Box 2213 Auckland 1140

Copy for:

G W Wells, P O Box 6078 Wellesley Street, Auckland, 1141.

Sentencing Unit, Law Commission, Wellington.

THE COURT:

Before I adjourn may I say that I am obliged to all counsel for their assistance and particularly, Mr Wells, to you for your assistance in a very difficult matter.

MS GORDON:

And may I say that my learned friend has certainly made it easier from the Crown’s point of view so I thank him for that.

THE COURT:

That is a very proper acknowledgement, Ms Gordon.