R v Charlton
[2015] NZHC 1727
•27 July 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-009-5160 [2015] NZHC 1727
THE QUEEN
v
DEAN JAMES CHARLTON
Hearing: 21 July 2015 Appearances:
D L Elsmore for the Crown
A Davis & R Walsh for the defendantJudgment:
27 July 2015
SENTENCING REMARKS OF NATION J
[1] Mr Charlton, in May 2014 you had a short relationship with your victim. You had recently ended a relationship with someone else and speak now as if you never thought your relationship with your victim had much of a future. She was fond of you and your relationship quickly became an intimate one.
[2] On 25 May 2015 she was in your bedroom sharing your bed. She told you she wanted to go to sleep and rolled over to face the wall. She told you she did not want to have sex. You pulled her over so she was lying flat on her back, held down her arms above her head, had your hands on her throat so she had difficulty breathing and hit her, bruising her upper body in ways that showed up in photographs later on. You squeezed her breasts really hard, she described it as squeezing them like oranges. Photographs show what appear to be bruises from the pressure from fingers. She kept telling you she did not want to have sex and was crying. You
carried on. You said that you wanted to. She said, when it was over, she grabbed her
R v CHARLTON [2015] NZHC 1727 [27 July 2015]
pillow and tried to cuddle it for protection and felt so dirty. She says you just laughed and thought it was a joke. In the morning she got her father to come and collect her. You were angry.
[3] As a result of what happened that night, a jury found you guilty of sexual violation by rape and assault with intent to injure. In respect of the squeezing of her breasts, you have been found guilty of indecent assault.
[4] In discussing this offending with the probation officer and with a psychologist who has provided a report for the Court, you admit there was an indecent assault, you admit the assault with intent to injure but say the intercourse that occurred after those attacks was consensual.
[5] This offending occurred within approximately three and a half months of your finishing a sentence of ten years’ imprisonment on two charges of unlawful sexual connection, rape and abduction. To that sentence had also been added a further 9 months’ imprisonment on a sentence imposed on 18 November 2011 for threatening to kill or do grievous bodily harm, a threat that had been made to a prison officer.
[6] The earlier abduction and related rape and sexual violations had occurred when you were aged 24. You denied that offending initially and have denied the offending again more recently, describing it as consensual. On the one occasion when you acknowledged that offending in connection with an appearance before the Parole Board, you said that you had seen the victim walking on a street during the day, had offered her a lift which she accepted, that just prior to reaching her street you had thoughts of raping her, became sexually aroused and then turned the car in the opposite direction and drove to Halswell Quarry. That was where the sexual offending that you had been guilty of occurred. To the Parole Board, you denied using any force and said “it just happened”.
[7] The victim of your latest offending was vulnerable and fragile even before this offending occurred. She says that, as a result of what happened, she has been very depressed, frightened, angry and has lost all her self confidence. She has
recurring nightmares. She does not sleep well and is afraid of you being released from the prison and killing her. She says she truly feared for her life during the attack. She is still recovering from the ordeal of her trial. I recognise her courage in reporting what happened to her to the Police and in coming to Court and giving evidence of what occurred.
[8] It is for your offending on 25 May 2014 that I must sentence you.
[9] The purposes and principles of sentencing which I must have regard to are set out in sections 7 and 8 of the Sentencing Act. In this case, relevant purposes are to hold you accountable, to promote in you a sense of responsibility, to provide for the interests of your victim, denunciation of what occurred and deterrence from further offending. I also have regard to the purpose of achieving your rehabilitation.
[10] Principles I need to have regard to are the seriousness of this type of offending, consistency with appropriate sentencing levels, the effect on the victim and the need to impose the least restrictive sentence that is appropriate in the circumstances.
[11] I have regard to the judgment of the Court of Appeal in R v AM. It is a tariff judgment providing guidelines as to the appropriate sentence for this type of offending.
[12] In assessing the seriousness of the actual offending and your culpability for the offending, I need to consider the violence associated with it. All rape is inherently violent but, in this case, associated with the rape have been the heavy blows to the victim’s upper body, the forceful squeezing of her breasts and the partial strangulation which was both dangerous and intensely intimidating. With this violence, you were not just forcing her to submit to you so you could have sexual intercourse. You were acting in anger and wanting to physically hurt her. I agree with the Crown’s submission that this use of force was intended to both subdue and humiliate.
[13] I have regard to the particular harm you have done to your victim. Her feelings of self worth would undoubtedly have been severely damaged simply by reason of the rape and assaults but the damage would have been greater because of the callous way you spoke to her about what you were doing and the callousness you showed towards her once you had obtained sexual gratification. You spoke to her and dealt with her as if it was your right to obtain sexual gratification in the way you wanted and her feelings were of no consequence. I have regard to the fact that you were in a relationship with your victim and had previously had a sexual relationship with her.
[14] I consider this offending does fall within the lower end of band 2 as described in R v AM, given the associated level of violence. I thus adopt a starting point of 9 years’ imprisonment for the offending.
[15] I must next consider the aggravating and mitigating features relating to you personally. Unfortunately, there are no mitigating features. It is apparent from the reports which have been provided to the Court that you show no empathy towards your victim and no remorse for what happened.
[16] You have previous convictions for violence. You have convictions in 2011 and 2013 on the two charges of threatening to kill. These related to threats to kill prison officers and their family, on one occasion by way of enlisting gangs to carry out the violence and a threat to rape the female partner of one prison officer. You have a conviction in 1999 for breach of a protection order in 1998. I am told this
1998 domestic violence against a partner involved strangulation and occurred in the context of you becoming angry over a debt you perceived your ex-partner owned your family. I note that Corrections refer to you normalising your violence and saying that others in your family would do the same thing in these circumstances and that you did not kill her because you did not wish to serve life imprisonment and so made a decision to release her throat and leave. In a recent interview with the psychologist, you deny ever having been violent against this ex-partner.
[17] There is the aggravating feature of your serious offending in 2001, the abduction and sexual violation of a stranger.
[18] You have a conviction in 1997 for threatening behaviour likely to cause violence and in 1998 for male assaults female and common assault. On those charges, you were sentenced to short terms of imprisonment.
[19] Having regard to these aggravating features relating to you personally, if I were to impose a finite term of imprisonment, the appropriate sentence would be one of eleven years’ imprisonment.
[20] If I were to impose a finite term of imprisonment, I would need to consider whether there should be a minimum term of imprisonment under section 86 of the Sentencing Act. I may do so where I am satisfied that the period otherwise applicable under section 84(1) of the Parole Act 2002 is insufficient to satisfy all or any of the purposes specified in 86(2) of the Act, namely, holding the offender accountable, denunciation, deterrence and protection of the community. In exercising my discretion, I would have regard to section 8(e) of the Act which requires the Court to take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders.
[21] In this instance, I would have particular regard to the seriousness of the offending, the particular risks that you pose for the safety of others, having regard to your personality, attitudes and propensities, as referred to in the various reports that are before the Court. Were I to be imposing a finite term of imprisonment, I would have imposed a minimum term of imprisonment of six and a half years.
[22] I need to consider whether a sentence of preventive detention should be imposed. The sentence of preventive detention is governed by section 87 of the Sentencing Act 2002.
[23] A sentence of preventive detention is preventive not punitive. Its purpose is to protect the community from those who pose a significant and ongoing risk to the
safety of those in the community.1 It is not a sentence of last resort, although its imposition should be carefully considered.2
[24] There are three things I must be satisfied of before I can consider imposing such a sentence:
(a) That the prisoner has been convicted of a qualifying sexual or violent offence;3
[25] Your convictions for indecent assault and sexual violation by rape are such qualifying offences.
(b) That the prisoner was 18 years old at the time of committing the offence.4
[26] You were 37 years of age at the time of the offending.
(c) That the prisoner is likely to commit another qualifying offence if released following the finite sentence.
[27] Qualifying offences include sexual violation, indecent assault and violent offences including manslaughter, attempts to murder, wounding with intent, aggravated wounding or injury, abduction for the purpose of sexual connection.
[28] In relation to this issue, I have a detailed report from a Senior Psychologist and Registered Clinical Psychologist with the Department of Corrections, a report from a Clinical Psychologist with the Regional Forensic Psychiatric Services, Hillmorton Hospital and also the full pre-sentence report from a Probation Officer.
[29] It appears you were the most forthcoming and cooperative in your interviews with Ms Bakker, the Senior Psychologist with the Department of Corrections. She referred to you having difficulty when you were asked to think or reflect on things
that have happened with you, of quickly becoming frustrated and angry and then
1 Sentencing Act 2002, s 87(1).
2 R v C [2003] 1 NZLR 30.
3 Sentencing Act 2002, s 87(2)(a).
4 Sentencing Act 2002, s 87(2)(b).
having significant difficulty controlling the intensity of your emotions. She considered it particularly relevant that, even when it appeared you wanted to create a positive impression, when angry and aroused you were unable to appropriately manage your own behaviour so that it required a concerted effort from the psychologist to calm you down. It was in that context she said you made derogatory questions about her and other people, reflecting hostility to women and racist over- tones and made threats to your current victim suggesting you would engage a family member who is soon to be released from prison to inflict retribution on your behalf and made threats in relation to prison staff should you be sentenced to preventive detention. She referred to the Judge’s sentencing and summary of facts relating to your 2001 sexual offending which indicated the victim was an unknown adult female, that you obtained access to her by abducting her in your car and used force to obtain compliance. Information in relation to that offending was that after the offending you stopped your car, pushed the victim out, made no attempt to protect your identity as she was able to note your car registration number as you left, leading to your apprehension. The Psychologist was of the opinion that this, in combination with your abducting the victim from a residential area in the middle of the day where you might easily have been observed by members of the public, could suggest either a strong drive to sexually offend, poor consideration of the possible consequences or a sense of invincibility in relation to consequences. I consider the same could be said of your offending on 25 May 2014.
[30] The Psychologist has reported that, on the information which is available, it appears your violence in prison has been precipitated by anger when you do not get what you perceive you are entitled to. Prison officers have noted that you will react and become abusive to staff in response to minor factors, such as there being a power outage, that you have been agitated regarding the current Court proceedings and, in this context, made implicit threats saying that you will have nothing to lose if you assault a prison officer. The report said you present with a number of anti-social and offence related attitudes such as entitlements to have your needs met regardless of other rights or needs, attitudes hostile to women and those in authority, and attitudes that normalise your use of violence either to enable you to get what you want or in retribution for perceived injustices against you. I note that such attitudes were exhibited in the offending which you are guilty of.
[31] Ms Bakker reports that, when you do not get what you want, you become angrily aroused and your reasoning capacity is significantly diminished. Instead of thinking of the possible consequences of your behaviour, you become focused on your right and entitlement for sexual gratification with little concern for your female victim due to your generally disparaging attitude towards women. She says:
In effect, if you are aroused, either emotionally, angrily or sexually and an opportunity is available for you to act on this, you may then offend to release this sexual or angry arousal with this being facilitated by both your hostile and callous and unconcerned attitudes to those you are victimising.
That was again evidenced in the offending you have been convicted of.
[32] Ms Bakker has referred to different ways your risk of further sexual offending has been assessed. She stated “When all factors are considered, your risk of violent and sexual offending are both considered to be high”.
[33] Considering your history, she considered that, with regard to violence and offending in the future, you are most likely to engage in making threats to others, including threats to kill and rape. She also considers you are at risk of overt violence to others and that females who have been or are in a relationship with you, even if this has been only for a short time, will be at most risk. Applying a spousal assault risk assessment, she noted that there are factors present in your case that are predictive “of serious and fatal domestic violence”. At present, your risk of further sexual reoffending, compared to other sexual offenders, is estimated as high over the
5 years following release. In respect of violent offending, compared to other violent offenders, the risk of further offending is assessed as high over 3 years following release. The risk is to both known and unknown victims, especially female victims.
[34] The opinions and conclusions reached by Ms Bakker are consistent with those of the clinical psychologist from Hillmorton Hospital. She says that in her third interview with you, you became angry and hostile, your anger escalated to the point you became intimidating and made direct threats of violence towards the victim and her family. She said that when she discussed the offending, you denied it had occurred. When she asked you whether you had squeezed her breasts really hard, you had scoffed and said that if you were going to assault someone “they
would not walk”. She said you demonstrated no empathy or remorse. She referred to various assessments she had made and her conclusions that, overall, your risk of sexual reoffending and violent reoffending was considered high.
[35] One of the matters pointed out in the reports is that the 2001 offending occurred less than one month after your release from prison and when you were still subject to post-release supervision. This latest offending occurred within a short time of your prison sentence ending. This suggests the imposition of prison sentences has not deterred you from reoffending.
[36] On the basis of all the information available to me in the reports and with my own appreciation of what occurred with the offending that you have been found guilty of, I am satisfied that you are likely to commit another qualifying sexual or violent offence if you are released at the sentence expiry date. The ground set out in section 87(2)(c) is satisfied.
[37] This does not necessarily mean I have to impose a sentence of preventive detention. There are various matters which, pursuant to section 87(4), I must take into account. I deal with those now.
(a) Any pattern of serious offending disclosed by the offender’s history.
[38] I should take into account your entire offending history. You are now 38 years of age. You were 37 at the time of the latest offending. You have been convicted each year since you turned 16 other than during periods of imprisonment. You have 16 convictions for violent offences and 3 serious sexual offence convictions. Ms Bakker’s report notes:
There has been an escalation in seriousness of his offending over time, despite significant sanctions in that he has also committed sexual offences in more recent years and his violent offending has increased in terms of the severity.
(b) The seriousness of harm to the community caused by the offending.
[39] Instances of rape and violence to women are most serious as far as the community is concerned, so also are the threats of violence towards people in authority or their families.
(c) Information indicating a tendency to commit serious offences in the future.
There is considerable information in the reports as to your attitude, psychological make-up and circumstances which are behind the conclusions the report writers have come to with regard to there being a high risk of your being involved in further violent or sexual offending.
(d) The absence of, or failure of efforts by the offender to address the cause or causes of the offending.
[40] You attended a Straight Thinking programme in 2004 and completed 12 individual treatment sessions with departmental psychologists but you have not completed any violence or sexual offending specific treatments. When serving a community sentence in 1998 you failed to attend a Stopping Violence programme that was a condition of your sentence. When a place became available on a special treatment unit rehabilitation programme, you initially declined. When you later changed your mind, a programme was not available. Your eligibility has also been compromised by your high security classification while a prisoner, no doubt a result of the threats you made towards prison officers. You did complete 20 individual treatment sessions with departmental psychologists prior to and following your release in 2013. Your motivation in relation to those treatments varied. It is relevant that, despite the assistance you have received, you did offend in May 2014 and, in the recent interviews with psychologists, you have revealed the attitudes and thought patterns which make you such a risk.
(e) The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[41] I have had regard to this. On all the information which is available, I do not consider that a lengthy determinate sentence would provide protection for society.
On the information which is available to me, I cannot assume that the risk you currently pose will reduce simply by reason of the further time you will spend in prison. That was not what happened as a result of the previous lengthy term of imprisonment following the 2001 offending. The trend in the past has been for your sexual and violent offending to become more serious. The risk you currently pose will only be reduced in the future if you acknowledge and recognise the true nature of your offending and address its underlying causes. You may be able to do this while you are in prison but, given experience to date, I cannot proceed on the basis this is likely to happen.
[42] Preventive detention is an appropriate way to manage the risk you pose for the public, and women in particular. With a sentence of preventive detention, you would not be released back into the community until the Parole Board is satisfied the risk you pose has reduced to an acceptable level. There would also be the reassurance that, if and when you are released, you would still be on parole and subject to recall if there was further offending.
[43] For all those reasons, I need to impose a sentence of preventive detention.
[44] Mr Charlton, in addressing all these issues as I have to, it may seem the outlook for you is particularly bleak. It is not entirely so. Unlike many offenders, you do not appear to have a serious problem with alcohol or drugs. You do not appear to have formal gang associations. For the first three months after your most recent release from prison, you lived in Salvation Army accommodation. Salvation Army staff saw you as a model client who did extremely well. You told Ms Bakker that you considered your individual sessions with a psychologist were beneficial. While on remand, you requested further individual treatment. Provided your security classification as a prisoner allows it, you will while in prison have an opportunity to address the causes of your offending and to do what you can to reduce the risk you currently pose to a level which will permit the Parole Board to release you from a sentence of imprisonment. A sentence of preventive detention could thus assist in your rehabilitation if you are motivated to achieve this. It will be over to you as to whether you take that opportunity.
[45] On imposing a sentence of preventive detention, I am required to impose a minimum term of imprisonment which cannot be less than five years.
[46] That minimum term of imprisonment must be the minimum period of imprisonment required to reflect the gravity of the offence or the minimum required for the purpose of the safety of the community, having regard to your age and the risk you pose at this time. Both the Crown and your own counsel Mr Davis have stressed the need or desirability of this Court not imposing a sentence which is crushing, the desirability of your having a sentence which leaves you with a ray of hope. In setting a minimum term of imprisonment, and wanting to give you that ray of hope, I am wanting you to have an incentive to take advantage of the opportunity which will exist for you to really look carefully at why you offend, at the effect the offending has on other people so that you can do something to make sure that sort of offending does not happen in the future. Having regard to that, I consider that the minimum term of imprisonment should be six and a half years.
[47] Mr Charlton, the probation officer has said that achieving your rehabilitation will be a challenging goal in that you need to demonstrate an understanding of how you have the potential to abuse others, how it affects other people and how you can manage all of that to reduce the risk that you currently pose. The probation officer has said that, if you cooperate, then your access to treatment will be a possibility and you would become a viable long term candidate for not only one-to-one counselling but, at a later stage, group work. If you take the right steps in that direction, you will be considered for release on parole after the minimum term of imprisonment which I am going to impose.
[48] Mr Chartlon please stand.
[49] On the charge of sexual violation by rape, you are convicted and sentenced to preventive detention with a minimum term of imprisonment of six years and six months.
[50] On the charge of injuring with intent to injure, you are convicted and sentenced to imprisonment for two years.
[51] On the charge of indecent assault, you are convicted and sentenced to imprisonment for eighteen months.
[52] Those sentences of imprisonment are to be served concurrently with the sentence of preventive detention.
[53] Stand down.
Solicitors:
Raymond Donnelly & Co., Christchurch
Clark Boyce, Christchurch.
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