R v Clapperton HC Napier CRI 2010-020-1694

[2010] NZHC 2234

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2010-020-001694

THE QUEEN

v

GARRY WAYNE CLAPPERTON

Hearing:         13 December 2010

Counsel:         N M Graham for Crown

R B Philip for Prisoner

Judgment:      13 December 2010

SENTENCING NOTES OF MACKENZIE J

[1]      Garry Wayne Clapperton you appear for sentence on a number of counts of sexual offending against three young boys. You have pleaded guilty to all charges.

[2]      The most recent offending occurred in January or February 2010.  There are two counts of indecent assault on a boy then aged 13 years.  You had befriended the victim and his family.  You would visit after school and look after the victim and his brother while their grandmother went to work and you would buy the victim gifts. You played wrestling games with him.   The offending occurred on two separate occasions during wrestling games.   On the first occasion the victim’s foot made contact with your mouth and you licked and sucked his toes.   That progressed to your licking and kissing him around his head.  On the second occasion you pulled the victim during a wrestling game so that you were both lying down clothed facing each other.  The victim described you as putting your hand on his bum and pushing

your diddle into his diddle.  When asked to show the actions on two dolls the victim

R V CLAPPERTON HC NAP CRI-2010-020-001694 13 December 2010

indicated a humping action.  The victim said this lasted for about 30 seconds and he could feel you had a hard diddle.   You then lay beside the victim for about five minutes extensively licking his armpit.

[3]      The charges relating to the other two victims are historic.   The offending involving the first of those victims occurred in 1995 to 1997. You had befriended the victim to the extent that his parents gave permission for him to go and stay with you on a number of occasions.  You and the victim slept in the same bed and you slept naked.   You face four representative counts of indecent assault and three representative  counts  of  sexual  violation  by  unlawful  connection  arising  from conduct which involved you touching the victim while you were in bed together, mutual masturbation, and oral sex, and you allowing the victim to put his penis into your anus.

[4]      The offending involving the third victim occurred in 1995 when the victim was eight years old.  You befriended him and he began to stay at your house and sleep in the same bed as you.  You face two counts of indecent assault, one of which is representative, two of inducing an indecent act by a child under 12 years, one of which is representative, and one count of sexual violation by unlawful sexual connection over a period of years.  To begin with nothing would happen but when the victim was about 11 matters progressed to your touching the victim by hugging and rubbing his body while you were asleep naked.   The most serious conduct involved you touching the victim on the penis and putting his penis into your mouth. You had  also had the  victim touch your penis  while  you rubbed  his  anus, and masturbated in front of him.  Other conduct involved mutual masturbation and your performing oral sex on him.

[5]      You are 57 years of age.  You have remained a bachelor all your life and have not experienced any type of adult sexual relationship, though you describe yourself as having a wide circle of friends.  You were employed for many years in a quite isolated situation.  Following your release from prison you had engaged in further education and had undertaken Maori studies and were in your final year of study towards a Bachelor of Arts degree.

[6]      You have previous convictions for sexual offending against young boys.  In

2003 you were sentenced to four and a half years imprisonment on five counts of sexual offending.   You were referred to this Court for sentencing so that the possibility of a sentence of preventive detention can be considered on this occasion. The required reports have been obtained.  The purpose of a sentence of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.   When considering whether to impose such a sentence the Court must take into account a number of matters.

[7]      The first is any pattern for serious offending disclosed by your history.  As I have noted you have five previous convictions all of a sexual nature.  The charges in respect of two of the present victims pre-date that offending, and the third occurred subsequent to your release from prison for that offending.  Each episode of offending demonstrates similar features:  the victims were all pubescent or pre-pubescent boys; the offending involved extensive grooming and manipulation;   the victims were known to you and  you had befriended their families;   the offending has, in all episodes apart from the last, begun with indecencies but escalated to more serious sexual violation.

[8]      The second factor is the seriousness of the harm to the community caused by the offending.   One particularly concerning feature of your offending is that you have targeted Maori children, and you have created opportunities for offending by befriending  families  so  that  you  became  trusted  with  their  children.     The departmental psychologist describes your offending as predatory and manipulative.

[9]      The  third  factor  is  information  indicating  a  tendency  to  commit  serious offences in future.  The psychiatrist who has assessed you raises issues of poor self esteem and unresolved issues regarding your sexuality, but expresses the opinion that you do not present with any major psychiatric disorder that would affect your risk of re-offending.  I have the benefit of two psychological reports, from the departmental psychologist and from a psychologist instructed through your counsel. Although you have taken issue with some of the statements in that latter report.   Both of those reports have conducted testing to assess your risk of re-offending.  I have found both of those reports particularly helpful.  I do not propose to describe them in detail.  The

departmental psychologist has assessed your risk on the Automated Sexual Recidivism Scale as being in the medium-low risk category.  On the STABLE 2007 test you were found to be in the high risk group.   The psychologist instructed, through your counsel, assessed you at a moderate-high risk of sexual recidivism on the STATIC 99 test and at a high risk of re-offending under the STABLE 2007 test.  I find a good deal of common ground between the two psychologists, particularly in their detailed discussion of the STABLE 2007 results.

[10]     The fourth factor is the absence of, or failure of, efforts to address the causes of your offending. While you were in prison you completed the Te Piriti programme. You appeared committed to the programme and attended all sessions and completed all assignments.  You developed an insight into the factors leading to your risk of re- offending and developed an understanding of what you considered to be your early warning signs.  You developed a detailed relapse prevention plan in which high risk situations and early warning signs are identified.   You adopted coping strategies. After you were released from prison and while on parole you were treated on several occasions.   The treatment involved the implementation of your relapse prevention plan in assisting you in assessing dynamic risks.   That treatment was terminated because of your progress and you were assessed at a moderate-low risk to re-offend. You then subsequently attended three scheduled relapse prevention meetings.  Your attendance ended when your sentence ended.  Clearly, these interventions were not successful in preventing your latest offending.

[11]     The final factor that I must take into account is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.  A sentence of preventive detention is not a sentence of last resort.  But this factor does mean that I should impose a finite sentence if such a sentence, and the protective measures which may apply after the end of that sentence, may provide protection for society which is adequate to reflect the risk which you are likely to pose on release, even though those protective measures will, necessarily, provide less protection than continued confinement in prison.

[12]     When I come to weigh and balance all of those factors, the matter which is of most serious concern to me is that your latest offending has occurred despite the

extensive treatment and interventions to address your risk of re-offending. That must weigh heavily in the balance in suggesting that preventive detention is necessary for the  protection  of  the  community.    Both  psychologists  have  commented  on  this aspect.  The departmental psychologist notes that none of the contacts available to you were used when you began your grooming of your recent victim.  This suggests to him that your cooperation with supervision was superficial and you were not willing to use the resources available to you when you had completed your sentence. The other psychologist notes that  you engaged  with a Maori family with small children, which had been identified as a risk situation for you in the Te Piriti programme, and you failed to heed a warning from a Kuia in your last victim’s family. Those are seriously concerning aspects.

[13]     There are however, in my view, several aspects which tend to suggest that society can be adequately protected by a finite sentence, and the measures that can accompany that.   The first is that your most recent offending is significantly less serious than your earlier offending.  That may be a matter of good fortune in that you were apprehended at an early stage.   But I do not think that it would be right to assume that the offending might have escalated as your earlier offending did.  Your future risk must be assessed having regard only to proven past offending so far as past offending is relevant.

[14]     The second aspect which suggests to me that protection of the community may not require your complete removal from society is that the pattern of your offending, and the length of time over which your grooming and manipulation of potential victims has occurred, ought to be capable of being monitored sufficiently closely to prevent a recurrence.  Your offending has not been sudden and impulsive. It has involved lengthy preparation in terms of identifying and grooming your potential victims.  You have been plausible in obtaining the trust of your victims and their families.  But the danger signs should be readily apparent to a trained observer. You have targeted victims with clearly defined characteristics.  This should make it easier to set and monitor conditions which avoid risk situations.  One of the factors which I am able to consider in deciding whether a lengthy determinate sentence may provide adequate protection for society is the possibility of an extended supervision order.  If a finite sentence were imposed you would be eligible for the imposition of

an extended supervision order for up to ten years after that sentence.   That supervision, if it were considered necessary at the time of your release, ought to be capable of being structured in a way such as to render it very difficult for even a cunning and manipulative person, such as you have demonstrated yourself to be, of concealing the danger signs.

[15]     It is, in my view, significant that while you were under supervision in the parole period of your previous sentence, you did not relapse.   The departmental psychologist noted that you were cooperative with probation when in the community but re-offended after you finished your probation suggesting that most of your motivation to desist from offending was external.   That comment does sound a caution against placing too much emphasis on the ability of post release supervision to monitor the risk.  Nevertheless, the fact that your relapse occurred only after your post-release supervision does suggest that your level of cooperation with post-release conditions is entitled to some weight in assessing whether extended supervision might provide adequate protection.

[16]     A further factor which gives some reason for optimism that the supervision which may follow a finite sentence might give adequate protection is that you have a significant degree of community support.  Your counsel has produced a number of references from people of good standing who are aware of your situation and have expressed willingness to provide support for you.   The psychologist instructed through your counsel has made some insightful comments about such support.  He expresses concern at two levels in respect of your future social support system.  The first is that the pattern of your offending has involved your developing a level of trust with the victim’s family, so that your sexual motivation would not have been apparent to the adults and victims within the family.   He expressed the view that without a clear understanding of this pattern, any future supportive adult would easily believe that you are of little or no risk to offend.

[17]     The second level of concern is that you received intensive treatment in the Te Piriti programme which enabled you to understand your risk factors but that this did not prove sufficient to prevent your latest offending.  He also makes the point that your present social support system might not stay stable during your term in prison

and it will need re-examination closer to the time of release.   While those observations are a caution against placing too much reliance on the community support available to you after release, that possible support can have some weight in the balancing exercise.

[18]     Another factor that I consider is relevant in deciding whether a finite sentence may provide adequate protection is your age.   You are now 57 years of age.   A lengthy  finite  sentence,  with  the  possibility  of  up  to  ten  years  of  extended supervision at the end of that sentence, means that you will be potentially quite elderly before you would be completely released from supervision.  The possibility of recall for life is an important component of a sentence of preventive detention. But your age means that this component may be able to be replicated to an adequate extent within the confines of a finite sentence.  In making that assessment, I am not saying that I consider that a 10 year Extended Supervision order should be made at the end of your sentence.  That will be a matter to be assessed at that time.  I am simply having regard to the possibilities which will be available.

[19]     For those reasons,  I have reached  the view,  by a narrow margin,  that  a sentence of preventive detention should not be imposed.

[20]     That leads me to a consideration of the appropriate finite sentence.   I must first fix a starting point having regard to the circumstances of your offending, and the aggravating and mitigating features of it.  I take as the lead charges those of sexual violation by unlawful connection.  Guidance on starting points for such offending is

now provided by the Court of Appeal decision in R v AM.[1]   However I must bear in

[1] R v AM (CA27/2009); [2010] 2 NZLR 750; (2010) 24 CRNZ 540 (CA).

mind that your offending on these counts occurred up to 15 years ago, when different sentencing levels  would  have  applied.    I must  also  taken  into  account  that  the offending pre-dated other offending for which you have already been sentenced.  I must, to some extent, have regard to the totality of all of your earlier offending, and the  sentences  which  have  already  been  imposed  for  part  of  that.     Those considerations mean that I cannot directly move to a starting point determined in accordance with R v AM.   Counsel for the Crown submits that this offending falls

within band 2 of that case and that the totality of the sexual violation offending

would justify a starting point of at least ten years imprisonment.   Your counsel submits that an appropriate starting point for the sexual violation counts involving each of the two victims would be four years, with the other indecency offending against each of those victims justifying an increase of one year, with those sentences imposed concurrently.   The end result of that would be a starting point for the offending involving those victims of ten years.

[21]     I  consider  that  it  is  appropriate  to  adopt  a  concurrent  approach  to  the sentencing involving the two earlier victims.  The offending is very similar in kind, and it relates to a very similar period. Adopting that approach, I would consider that, applying R v AM, a starting point of ten years for the total sexual violation offending is appropriate.   I do however consider that some discount to that starting point is required to reflect the historic nature of the offending.  So I adopt a starting point for the total sexual violation offending of eight years.

[22]     To that must be added an uplift for the other indecency offending against those two victims.  I consider that an appropriate uplift would be one year.

[23]     As to the recent offending against the third victim, I consider that I should adopt a cumulative approach. That offending involves two counts of indecent assault on a child.  This was relatively minor offending. Your counsel submits that a starting point in the vicinity of 12 months for each charge with an uplift of six months to one year for your previous convictions would be appropriate.   I consider that an appropriate starting point, having regard only to the circumstances of the offending, is two years.

[24]     I must next consider personal factors, both aggravating and mitigating.  The aggravating factor is your previous offending, and the fact that your latest offending occurred not long after your release from that earlier sentence.   I consider that an uplift of one year is required to reflect that factor.

[25]   That leads to a total cumulative starting point, having regard to the circumstances of all the offending, of 11 years with an uplift of one year to reflect your previous offending.  From that point of 12 years the only mitigating personal

factor which I consider requires a deduction is your guilty plea.  You pleaded guilty at a very early stage.  At the time your plea was entered there would have been an expectation of a discount in accordance with the Court of Appeal decision in R v Hessell.[2]    You would on that scale been entitled to a discount of one third.   The subsequent decision of the Supreme Court indicates that discounts for guilty pleas should not exceed 25 per cent, though some additional discount for remorse may be

[2] R v Hessell [2010] 2 NZLR 298; (2009) 24 CRNZ 612 (CA).

justified.  In your case, I think that the totality of the circumstances, including the circumstances  in  which  your  guilty plea was  entered  does  indicate a  degree of remorse and acceptance of responsibility which would make a totol discount of one third appropriate.  That would give a reduction of four years, leading to a total end sentence of eight years.

[26]     I must then consider whether a minimum period of imprisonment should be imposed.  That may be imposed if I am satisfied that the minimum period otherwise applicable is insufficient for, among other things, protecting the community from you.   I have held that adequate protection can be provided by a sentence short of preventive detention.  However, the factors I have taken into account lead me to the conclusion that the protection of the community requires the imposition of a longer minimum non parole period. You must serve a minimum period of five years.

[27]     Accordingly, you are sentenced as follows:

(a)      On  each  of  the  counts  of  unlawful  sexual  connection,  you  are sentenced to imprisonment for a term of six and a half years.   You must serve a minimum period of four years.  Those terms are to be served concurrently with each other.

(b)On each of the other counts relating to the 1995 to 1997 offending you are sentenced to a term of one and a half years imprisonment.  Those terms are to be served concurrently with the sentences imposed on the

sexual violation charges.

(c)      On the two counts of indecent assault from 2010, you are sentenced to a term of one and a half years.  Each of those terms is to be served concurrently with each other but cumulative on the term imposed on the sexual violation charges.  On those indecent assault charges you will serve a minimum term of one year.

(d)That is as I have indicted a total overall sentence of eight years with a minimum period of five years.

“A D MacKenzie J”

Note:There was a slip made by me in referring to the dates of the offending described at para [4]. The correct dates for that offending were July 1985 to July 1989.