R v Carmichael HC Auckland CRI-2009-077-001478

[2010] NZHC 2406

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-077-001478

REGINA

v

MATTHEW HENRY AARON CARMICHAEL

Hearing:         20 December 2010

Counsel:         N E Walker and K Mills for Crown

P Le'au'anae for the Prisoner

Judgment:      20 December 2010

SENTENCING REMARKS OF FOGARTY J

[1]      Matthew Carmichael, you appear for sentence having been found guilty by a jury of two offences.  First of causing grievous bodily harm to a young child with the intent   to   cause   him   grievous   bodily   harm,   contrary   to   s   188(1)   of   the Crimes Act 1961.   Second, doing an indecent act on a child under the age of 12 years, contrary to s 132(3) of the Crimes Act 1961.

[2]      You  present  a  difficult  problem  to  me  as  a  sentencing  Judge,  Matthew, because you are denying that this offending ever took place.  Well, you agree that in the grievous bodily harm offence the child had hot water from a hot water jug spilt down his back but you have been saying that he pulled the jug and it was not you and you are just simply denying completely that you incited a child under the age of

12 years to masturbate in your presence in the park.

[3]      It is a difficult problem because quite apart from my duty to sentence in accordance with the jury verdict, I also think the jury verdict was correct and I do

R V CARMICHAEL HC AK CRI-2009-077-001478 20 December 2010

think that you need to face up to the fact that you have some problems in respect of little boys and I am very concerned that the sentence I impose should both punish you for this conduct but also, and even more importantly, prepare you for re-entry back into the community so that there will never be again any young people who might be harmed by you in the future.

[4]      Essentially, there is a common element in respect of both offences.  You have had an extremely unhappy upbringing which is not your fault, but which has left you not behaving in the way that most young men of your age do.  I think you have to accept that as a fact and then take help from the experts in addressing that.  That has left you, however, from your upbringing, being more comfortable in relationships particularly with children or persons younger than you who are less demanding, rather than associating with people of your own age.

[5]      You have demonstrated a sexual interest in young children.  I am using here the reports of the clinical psychiatrist and the clinical psychologist.   From what I have  learned  in  the  trial  you  enjoy situations,  or  you  are  more  comfortable  in situations, where you are more relatively in control vis-a-vis the children.

[6]      Both were the settings of these two offences.  In the case of one child, you were in your half-sister’s house, he was in the house as well, you were probably entrusted with looking after him and his brother, possibly the other children.  But to a degree, in other words, they were under your control.  In the case of the other child, you were in a park and inside a tent-like structure which was really a climbing frame with the child concerned and another little boy.  To a degree, they were also under your control at the time.

[7]      Both the psychiatrist and the psychologist are very concerned you pose a serious risk of causing harm to young children in the future.  They see a need for therapy but they are particularly concerned at the present time you do not acknowledge that you have a problem.   It is their view that if you can genuinely acknowledge that, believe it, then you will benefit from the therapy that can be offered to you and I accept that from Ms Mills’ submissions that the best therapy that can be offered to you is the course at Te Piriti, here in Auckland and I have been

assisted in the course of the hearing by Ms Mills’ familiarity with the course and her

ability to discuss the course and your particular case with Dr van Rensburg.

[8]      I am saying this by way of preliminary because to a degree, the sentence that I am going to impose on you is as it were, reverse-engineered.   It is a sentence designed to accommodate the problem that you face to the community and it is also influenced significantly by the view of the clinical psychologist who is concerned that a prison sentence could greatly upset your “precarious psychological balance and possibly lead to intractable and permanent damage.”

[9]      So to my mind, the appropriate sentence that fits the Sentencing Act 2002 criteria is one which gives you a long enough spell in prison as a punishment and to bring home to you society’s views reflected by this Court of the harm you have done and promotes you to appreciate that you have done harm and to recognise that and then long enough for you to be a likely successful graduate from the programme so that you can be released hopefully back into the community to live a more normal life and frankly Matthew, a happier life than you would otherwise live.

[10]     Turning then to the sentence, I start with the grievous bodily harm.  I have already had occasion to mention very briefly the relevant facts.  While the little boy who was aged three was in your care and you were the only adult in the house, you poured hot water from a kettle down his back.  The water had either been recently boiled or was approaching the boil.  That caused very significant burns to this little boy.

[11]     Fortunately, there has been complete recovery from the burns and hopefully there is no long-term psychological damage to the little boy.  He does not want to talk about it and I can quite understand that.  As it was put to the jury, the very act of you lifting the hot water jug and pouring it on his back had to be a deliberate decision.   But as was clearly understood by me and I am sure the jury, it was a momentary decision on your part which you almost instantly regretted for as soon as you had done it, you picked up the screaming child and took him across the road to a neighbour who you had a close relationship with and she and you placed the child

under a cold shower and in other words, took immediate steps to try to take care of the child.

[12]     The Crown argued that I should follow R v Taueki [2005] 3 NZLR 372 and using cases also to treat the use of the hot water jug as a weapon and therefore place it within band 2 on that basis which would be a band of four to five years or place it at a higher level in band 1 which is three to six years, in the end suggesting a four to five-year starting point.

[13]     I have considerable difficulty in accepting either four or five  years as  a starting point for this offending.  That basic difficulty is exacerbated by the recent decision of the Supreme Court in Hessell v R [2010] NZSC 40. Taueki is a decision setting guidelines for sentencing.  The justification for setting guidelines in Taueki appears  to  be  on  the  basis  that  it  had  been  done  before  in  a  case  called R v Hereora [1986] 2 NZLR 164 in 1998. It is not justified from the text of the Sentencing Act 2002.

[14]     The principal reason for setting these guidelines is set out in paragraph 10 of Taueki, on the basis that consistency has always been the objective of sentencing policy and s 8(e) of the Sentencing Act 2002 now gives that statutory backing.  So the Court went on to say:

We hope that this judgment will provide a single point of  reference for sentencing Judges and counsel and this will lead to consistency in the sentencing level imposed on offenders.   What we seek to achieve is consistency in the approach adopted by sentencing Judges which should in turn lead to consistency in sentencing levels.   This does not override the discretion of sentencing Judges, but rather provides guidance in the manner of the exercise of that discretion.

[15]     In Hessell, the unanimous judgment of the Supreme Court emphasised the text of s 8(e) is not set out in Taueki, let alone emphasised and I refer to para [51] of the judgment in the Supreme Court where it says:

Section 8(e) requires that the desirability of the principle of consistency in sentencing must be taken into account.  Its terms do not favour the adoption of  a  more  structured  approach  to  sentence  reductions  by  reference  to  a sliding  scale,  according  to  when  the  plea  is  entered  as  a  primary

consideration.   It is the desirability of consistency “in respect of similar offenders committing similar offences in similar circumstances” that must be taken into account.  All circumstances in which the plea was entered must be addressed, not merely the timing.

[16]     Although the Supreme Court was talking in terms of a structured approach to sentence reductions, it does seem to me that that reasoning has general application. Elsewhere in the judgment the Supreme Court pointed out that ss 7, 8 and 9 are setting out criteria, all of which need to be taken into account.

[17]     In the Crown argument, I was invited to follow the guidance in para 37(b), being domestic assault by a spouse on a partner which is impulsive but does not use a weapon, and para 39(c), being a premeditated domestic attack and where the attack involves the use of a weapon, the starting point should be expected to be at the higher end of band 2.

[18]     Both paragraphs however illustrate the problem of trying to read them as an application of s 8(e).  Your assault has a domestic quality but you are not an adult spouse assaulting your partner in an impulsive way and neither paradigm example discusses the question of the length of the assault.  Although earlier in the judgment in Taueki, the duration of the offending is identified as an important factor.

[19]     In your case, I would estimate that the actual pouring of the hot water lasted for probably less than a second and the premeditation is likely to have been only one second before that at the outside.  We are addressing the culpability of criminal behaviour over a period of two seconds.   I do not really think that is the kind of scenario that the Court of Appeal had in mind in Taueki.

[20]     Of course, a single blow or the pouring of the jug can  cause enormous damage but the culpability of it in my mind, depends significantly on the planning. For example, the Crown sought to rely on the decision of R v Worden (CA 111-99, Keith, Tipping & Gallen JJ) as a similar case.  In the case of Worden, the victim was a Japanese man staying in a hostel who in the course of the evening, turned on the light in the bunkroom when the prisoner Mr Worden was asleep.   Mr Worden at approximately 7.00 am went downstairs to the kitchen where he boiled a pot of

water.  He then returned upstairs and threw the pot of hot water over Mr Nomura

who was asleep, having told Mr Nomura to “get out of here.”

[21]     That is a case where Mr Worden was on a much longer fuse.   He was retaliating for events which on the timing of the Court of Appeal judgment, occurred at least five hours earlier.  He had decided what his revenge would be and boiled the jug and then went up and did it.  I do not think, to my mind, that I am looking at the three criteria of similar offenders, similar offences and similar circumstances.

[22]     The reflection on these three criteria also expose another problem which as a sentencing Judge, I have difficulty with.   This is the concept of taking a starting point assessed on the gravity of the offence and then taking mitigating factors into account as a discount off the starting point.  I read the Supreme Court decision in Hessell as requiring more fidelity to the text of the Sentencing Act 2002.

[23]     Section 8(a) is the section which imposes a duty on the Court to take into account the gravity of the offending in a particular case.  But that proposition does not stop there with a full stop, it is paused with a comma and includes the words “including the degree of culpability of the offender.”

[24]     Ms Mills argued that including the degree of culpability of the offender, does not allow taking into account facts which had a provocation or inducing effect on the conduct.  I disagree.  She argued that such matters could only be taken into account, if at all, under s 9 mitigating factors, where one can take into account the conduct of the victim.  She also argued, I think, that the conduct of the victim had to be itself of some degree open to criticism and of course one could not do that in the case of these children.

[25]     Mr  Le’Au’Anae argued on the basis of the CYF report that the Court should take notice of the fact that the two young children in Mr Carmichael’s care at the time and certainly the one that he poured the hot water on, have a long history of CYF reports and care, that they are very difficult children to care for because of their behavioural problems and of course I saw some of that in the interviews that were videoed in the trial and I do know quite a bit now about the family history and the

problems with those children.  It is abundantly plain that you, Mr Carmichael, were not a fit person to be left in charge of these young children and it is more likely than not that one or other of the children, potentially or probably the one that you poured water on, did something that absolutely infuriated you which led you to this conduct of, as I said, about two seconds’ duration which caused significant harm.

[26]     To my mind, that is a context or circumstance which I can take into account when assessing the degree of culpability in the context of assessing the gravity of the offence when applying s 8(a).  But of course if I do that, it is to a degree not reflected in Taueki although on the other hand, Taueki does include the concept of impulsive attacks in the examples as I have mentioned, the impulsiveness obviously going to a lesser degree of culpability than the premeditated counts.

[27]      Taking all these factors into account and including, if I have not mentioned it although I mentioned it at the start, your appalling upbringing and the fact that you have been left as a young adult totally ill-equipped for living in adult society with normal degrees of self-control, it seems to me that the appropriate sentence on this charge is two years’ imprisonment.  I am pausing here because I am planning to take into account the totality principle.

[28]     I turn to the second conviction for the sexual offending.  This is offending which was premeditated.  You took the victim and his friend, who was the child of your stepsister, to a park.  You clearly took them under the climbing structure to be away from public gaze and you engaged them in a game of dare which had the goal from your perspective of achieving some sexual satisfaction.   You persuaded this young boy to masturbate in your presence and that is what you are convicted for.

[29]     This offending is quite serious, Matthew.  When little boys such as this little boy are persuaded by adults to do these sort of things, it can have long-term consequences on their development into adults and their ability to have normal friendships and sexual relationships in the future.  It is quite possible that what you did to this little boy will have a more serious effect on him than the pouring of hot water on the other little boy.   That may seem strange, you can see the immediate effect of the pouring of hot water on the back of the other little boy, you cannot see

the effect of playing sexual games with little boys immediately.   Their harm that happens comes later in life.

[30]     It is quite possible that you have been sexually abused.  Both the clinicians have told me that may be the case and you may be understanding what I am saying to you now.

[31]     In this area, the Crown’s submissions indicate that the sentencing for this type of conduct is in the order of 15 months to 18 months.  I think that an appropriate sentence for this activity would be 18 months and if those two sentences were added together, that would be a total end sentence of three and a half years in prison.

[32]     I  have  had  very  useful  discussions  that  I  have  already  referred  to  with Ms Mills about your suitability to go into the Te Piriti course.  Dr van Rensburg has advised the Court that a minimum sentence of two and a half years is necessary to ensure that you would be able to access this course.  I have already referred to the advice from the clinical psychologist to take care, which I interpret as being warned to take care, that the prison sentence does not turn you into a greater danger to the community than you are now.  I do also take into account that the prison officers will take steps to try to prevent you being assaulted and otherwise damaged yourself while you are in prison.

[33]     All the same, I think that the long-term interest of the community is to have a prison sentence which has the best chance of you coming out and not causing any harm to any other little boy or girl in the future.   To that end, to me it is more important that we pursue that goal than to perhaps put you in prison for one or two more years which may have counter-effects.

[34]     So for these reasons, I have decided that the appropriate sentence, applying the totality principle of taking into account the factors that I have mentioned, is three years.  Therefore I am going to sentence you to one and a half years on each of the offences, coming to a total of three years.

[35]     There will be the standard release conditions including that you attend a drug and alcohol assessment upon release, attend and complete any treatment or counselling as recommended by the drug and alcohol assessment to the satisfaction of your probation officer and treatment provider.

[36]     If I can pause here Matthew, I have read with some degree of comfort that because of the terms of bail, you have not been consuming alcohol and I hope you find that that has actually improved you and I think you do have a serious alcohol problem on top of the other problems that we have talked about.

[37]     In addition, you are to attend a psychological assessment upon your release and attend and complete any treatment or counselling as recommended by the psychological assessment, to the satisfaction of the probation officer and treatment provider.   Matthew, that is following your release but I am of course very much hoping  that  you  will  be  a  suitable  candidate  to  go  on  the  Te  Piriti  course  in Auckland.

[38]     You are also not to associate with or contact a person under the age of

16 years, except in the presence and under the supervision of an adult who has been informed about the relevant offending and has been approved in writing by a probation officer as suitable to undertake the role of supervision.

[39]      I am grateful to Ms Mills for clarification.  Pursuant to s 93, I cannot impose those conditions myself and I have overlooked that they are really conditions that I recommend the Parole Board take into consideration.

Solicitors:

Crown Solicitor, Auckland

P Le’au’anae, Auckland