R v Conroy

[2012] NZHC 3063

NOTESON SENTENCE OF 16 NOVEMBER 2012 RECALLED AND REISSUED 19 NOVEMBER 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-032-001932 [2012] NZHC 3063

THE QUEEN

v

BRIAN WILLIAM CONROY

Counsel:         M G Sinclair for Crown

L C Brown for Prisoner

Sentence:       16 November 2012

Reissued:       19 November 2012

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Conroy you have pleaded guilty to:

(1)       Two charges of indecently assaulting a child under 12;1   and

(2)Four charges of breaching the conditions of an extended supervision order.2

1      Crimes Act 1961, 132(1).

2      Parole (Extended Supervision) Amendment Act 2004, s 107P.

R V CONROY HC WN CRI-2012-032-001932 [16 November 2012]

[2]      You are to be sentenced in this Court because the District Court declined jurisdiction  to  sentence  you  so  as  to  enable  this  Court  to  consider  imposing  a sentence of preventive detention.3

[3]      From the outset I advise that I will not be imposing a sentence of preventive detention.  In my judgement a comparatively long finite sentence for this offending meets the principles and objectives of the Sentencing Act 2002.

[4]      In sentencing you I will:

(1)       explain your offending;

(2)       explain your previous relevant offending;

(3)       explain why I will not impose a sentence of preventive detention;

(4)       set out the starting point for you in relation to your current offending; (5)     adjust the starting point to reflect aggravating factors that are relevant

to you;

(6)assess  the  overall  appropriateness  of  the  sentence  I  propose  to impose;

(7)       discount the sentence to reflect your guilty plea;  and

(8)       explain your final sentence.

Your offending

[5]      The young girl who you offended against is the daughter of your former partner.

[6]      One evening in 2010 you gave the complainant a “piggyback ride”.  When she was on your back you touched her leg and the outside of her underwear.   She immediately got off you.

[7]      Later that night, when the complainant was trying to sleep, you placed your hand on her leg and attempted to move it under her underwear.

[8]      At the time of this offending you were the subject of an extended supervision order imposed by the District Court on 13 May 2009 for a period of ten years. After breaching that particular order twice in 2011, more restrictive conditions were put in place with effect from 19 March 2012.

[9]      The conditions of your extended supervision order required you: (1)      not to stay overnight away from your address at Porirua; (2)      to obtain approval before moving addresses;

(3)       to comply with all electronically monitored residential restrictions;

and

(4)       to report as directed by your probation officer.

[10]     On 26 April 2012 you moved to the address of a former girlfriend.  That was done in breach of the first three conditions of your extended supervision order that I have just referred to and I understand you remained in breach of those conditions for approximately two months.   On 4 May 2012 you failed to report to community probation services as required by the fourth condition of your extended supervision order.

Prior convictions

[11]     In January 2000  you committed indecent assault and sexual violation by unlawful sexual connection.   The victim was a six  year old girl.   She was the daughter of your then landlord.  You were sentenced to four years and six months’

imprisonment on 11 April 2006 for this offending and became subject to an extended supervision order on 21 August 2009.

[12]     In  September  2009  you  were  convicted  of  breaching   your  extended supervision order, and breaching the conditions of your release from prison.  Those breaches occurred when you were found to be residing with a woman and her three children under 16 without permission.   You were sentenced to ten months’ imprisonment for those breaches.

[13]     Soon after your release from prison in March 2010 you committed the two indecent assault offences to which you have now pleaded guilty.

[14]     You committed two further breaches of your extended supervision order in

2011.  The first of these breaches involved you making contact with a five and eight year old when they were going to school.  You were seen holding their hands and offering them food.  The second breach involved you talking to a young girl after a church service.

Preventive detention

[15]     Section  87(1)  of  the  Sentencing Act  2002  explains  that  the  purpose  of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.  This sentence has a preventive and not punitive purpose.4   Section 87(2) provides:

This section applies if—

(a)       a person is convicted of a qualifying sexual or violent offence (as that term is defined in subsection (5));  and

(b)       the person was 18 years of age or over at the time of committing the offence;  and

(c)       the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date (as specified in subpart 3 of Part 1 of the Parole Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.

[16]     Section 87(4) of the Sentencing Act 2002 provides the mandatory factors I must take into account when considering imposing preventive detention.   Those factors are:

(1)      any pattern of serious offending disclosed by the offender’s history;

and

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

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

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

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

[17]     A  sentence  of  preventive  detention  does  not  automatically  follow  the fulfilment of the statutory conditions in s 87(4) of the Sentencing Act 2002.   Its imposition is a matter of discretion.

[18]     The  Court  of  Appeal  has  noted  that  the  decision  to  impose  preventive

detention is “heavily qualified”:5

... the prior offences must have been “serious”;  there must be a tendency to commit  “future”  serious offences;    and  there  must  also  be  “significant” “ongoing” risks.  ...  “Such a sentence is highly controversial and if it is to accord with acceptable principles the Courts must restrict its use to cases where there really is such a risk” ...  The short point here is that there has to be  a  significant,  ongoing  risk  of  serious  harm  before  somebody  is incarcerated indefinitely, particularly for lower level offences.

[19]     In  this  case  I  have  had  the  benefit  of  two  psychologists’ reports.    The psychologists have assessed you as being at a medium to high risk of reoffending.

The  psychologists   conclude   that   your  continual   breaches   of   your   extended

5      R v Parahi [2005] 3 NZLR 356 (CA) at [85].

supervision  order  and  your  tendency  to  place  yourself  at  high  risk  situations involving young people illustrates a serious risk of reoffending.

[20]     One  of  the  psychologists  has  concerns  that  you  cannot  be  managed effectively by community probation staff as you appear to be duplicitous and dishonest with staff and unwilling to comply with the conditions of the extended supervision order.  However, the psychologists note that you may respond better if your supervising probation officer takes into account your cognitive limitations and if they are able to establish greater motivation for you to comply with the conditions imposed.

Analysis of reasons for not imposing preventive detention

[21]    Mr Conroy, you meet the statutory criteria for a sentence of preventive detention.6     However, I must be satisfied that you are likely to commit another qualifying sexual or violent offence if you are released at the end of a finite sentence. Therefore, I need to be satisfied that a finite sentence is insufficient to protect the public.  In making this judgement I must have regard to the factors set out in s 87(4) of  the  Sentencing  Act  2002.    Each  of  the  factors  has  to  be  considered  and conclusions  reached  in relation  to  those  factors  that  you  pose a significant  and ongoing risk of safety to the community if a sentence of preventive detention is to be

imposed.

[22]     I will now examine each of the s 87(4) Sentencing Act 2002 criteria with reference to your specific circumstances.

Patterns of serious offending – s 87(4)(a)

[23]     This criteria requires me to consider the frequency and duration of your current offending, the period of time between your past offending and your current

6      Section 87(5) defines a qualifying sexual offence as a sexual crime under Part 7 of the Crimes

Act 1961 punishable by 7 or more years’ imprisonment.

offending, the frequency of your offending generally, and any reoffending that has occurred shortly after your release from prison.7

[24]     Your current offending is not of the most serious of its kind.  It involved two instances of indecent touching over the clothes of a young girl.  Your offending was aggravated by the breaches of your extended supervision order.   However,  your offending must be viewed in the context of a pattern of offending against young girls and persistent breaches of the extended supervision order since it was imposed in

2009.   Although your last serious sexual offending was committed in 2000, the present offending was committed soon after you were released from prison, and the following year you approached young girls on their way to school in breach of your extended supervision order.   The frequency of your offending since 2000 viewed overall is moderate, with the two main offences separated by a period of ten years. However, in the last three years the frequency of your offending has increased.

Seriousness of harm to the community – s 87(4)(b)

[25]     The reports indicate there is a high likelihood of you reoffending.  This poses harm to the community.   Harm to the community from sexual offending is self- evident.

Information indicating a tendency to commit serious offences in future – s 87(4)(c)

[26]     This   assessment   focuses   on   the   likelihood,   type   and   seriousness   of reoffending in the future.

[27]     The reports I have received indicate a high likelihood of reoffending in a sexual manner.   Your pattern of previous offences shows a predilection towards young girls and the conditions of your extended supervision order to date have done

little to hamper this.

7      Hall’s Sentencing (online looseleaf ed, LexisNexis) at [SA87.8(a)].

Absence, or failure of, efforts by the offender to address the cause or causes of offending – s 87(4)(d)

[28]     The   reports   indicate   that   although   you   have   attended   rehabilitation programmes  including  the  Kia  Marama  programme,  both  inside  and  outside  of prison,  you  refuse  to  properly  engage  in  these  programmes  and  address  the underlying cause of your offending.   You have failed to use the benefits of those programmes to avoid high risk situations involving young people.

[29]     Ms  Brown  suggests  that  you  have  learned  some  lessons  from  these programmes even though they have not prevented you from offending entirely.  She suggests you would benefit from further treatment.  It appears from the reports that you acknowledge your offending and have some insight into it.   The reports also indicate you could benefit from additional rehabilitative programmes or individual counselling as part of a determinate sentence, if they are specifically tailored to your cognitive ability.

A lengthy finite sentence is preferable if this provides adequate protection for society

– s 87(4)(e)

[30]     The principle that a finite sentence is to be preferred wherever it would reasonably meet the protective purpose of preventive detention must be carefully considered.

[31]     I have annexed to the written copy of my reasons for sentence a list of Court of Appeal decisions that I have examined in which sentences of preventive detention have all been overturned on appeal.  These cases illustrate the rarity of circumstances in which a risk of reoffending can justify the imposition of preventive detention, that a finite sentence will usually be preferable to a sentence of preventive detention in circumstances such as yours.

[32]     In  your case I must consider whether the combination of a finite prison sentence, followed by the continuation of the extended supervision order would

provide adequate protection.8   The current extended supervision order will expire in

2019 unless the Department of Corrections makes a fresh application for another order following your release from prison.

[33]     The Court of Appeal in R v Mist commented on the interaction between an extended supervision order and the sentence of preventive detention.   The Court said:9

The Court is required under s 87(4)(e) to have regard to the principle that a determinate sentence is preferable if adequate protection can be provided. We cannot see how a Court can ignore the reality that an eligible offender on whom a finite term is imposed can be the subject of an extended supervision order if he or she continues to constitute a risk to the public at the time he or she comes up for release.  That provides a potential safety valve which is now an inherent quality of a determinate sentence for relevant offences.

[34]     Similarly, in R v Parahi the Court said:10

... in a finely balanced case, it allows a risk assessment to be made at the time a prisoner is about to be released, rather than requiring before the sentence, predictive assessments.

and further:11

Finally, the possibility of extended supervision orders on release may tip the balance against preventive detention sentences for lower-level sexual offenders.

[35]     In your situation I consider that a determinate sentence in combination with an extended supervision order provides adequate protection to society and should be favoured  over  preventive  detention.    In  accordance  with  the  Court  of Appeal’s comments in Bailey, preventive detention should not be imposed without first allowing a lengthy finite sentence to serve as a final warning and an opportunity to address the underlying drivers of your offending. You appear to be willing to engage with rehabilitative services that are provided by Corrections, and should be given the

opportunity to pursue those further during a finite sentence.

8      R v Mist [2005] 2 NZLR 791 (CA).

9 At [101].

10     R v Parahi [2005] 3 NZLR 356 (CA) at [33].

[36]     In addition, I do not consider your offending is serious enough or frequent enough to show a sufficient future risk of reoffending to justify preventive detention. The offending which occurred in 2000 is certainly more serious than the present offending, but neither sets of offending were frequent enough or close enough in time to justify an indeterminate sentence.   Moreover, there is no indication your offending has increased in seriousness over time.  The factors common to all of your offending, including the breaches of extended supervision orders, is your tendency to target young girls that are known to you.  The risk to such victims ought to be able to be managed by strict conditions being imposed as part of an extended supervision order following your release.

Finite sentence:  starting point

[37]     The lead offence of indecent assault against a female under 12 attracts a maximum sentence of 10 years’ imprisonment.  There is no tariff case for indecent assault on a child under 12, given the range of circumstances in which it can occur. However, the following comparable cases indicate the appropriate starting point:

(a)      In R v McEwan,12  the appellant indecently assaulted the 10 year old daughter of his  girlfriend  by touching her  genitalia area over her clothing.   The Court of Appeal held that a sentence of 15 months’ imprisonment was not manifestly excessive, given the gross breach of trust that occurred.

(b)In R v M,13  the appellant who was 19 at the time of the offending, indecently assaulted his four year old cousin by touching her genitalia, and placing the victim’s hand on his genitalia, before asking her to promise not to tell anybody about the incident.  The Court of Appeal considered  that  a  starting  point  of  two  years’  imprisonment  was

appropriate.14

12     R v McEwan CA 135/03, 19 June 2003.

13     R v M [2009] NZCA 456.

(c)      In R v S,15  the defendant was in a de facto relationship with the complainant’s aunt, and the complainant (a 15 year old girl) regularly visited their home.   During these visits, the defendant indecently assaulted the girl by touching her breasts and buttocks on the top of her clothing, and attempting to touch her genitalia.  These incidents were fleeting and only lasted a few seconds.  The starting point of two and a half years’ imprisonment was substituted with a starting point of

18 months’ imprisonment on appeal.

[38]     The present charges involve relatively low level indecent assaults.  However, there are a number of aggravating features.    The incidents involved you inappropriately touching the victim over the top of her clothing, and attempting to move your hand under the victim’s clothing.  The victim was a vulnerable nine year old girl staying with her mother, and the offending was committed as part of a gross breach of trust.

[39]     I consider the seriousness of your offending, if viewed in isolation, to be directly comparable to the cases I have mentioned.  However, in those situations, the defendants were sentenced purely on the basis of the offending for which they were to be sentenced and where the only sentence available was a finite sentence.   In circumstances where preventive detention has been considered as a viable sentencing option,  I cannot  view the present  charges  in  isolation  without  considering  your heightened risk of reoffending and the corresponding need to protect the public.

[40]     The Court of Appeal stated in R v Mist that it is appropriate to impose a finite term that would be less severe than preventive detention but higher than what would otherwise be imposed as part of an ordinary sentencing exercise.16    You were considered eligible for preventive detention and only escaped that sentence because I considered a long finite sentence would be sufficient to protect the community from

the risk that you pose.

15     R v S CA465/05, 11 April 2006.

16     R v Mist [2005] 2 NZLR 791 (CA) at [61].

[41]     Accordingly, I consider a starting point of three years is appropriate.  This is higher than would otherwise be justified.   It is, however, a starting point which I have determined is appropriate as an alternative to preventive detention.

Adjustments to the starting point

[42]     The primary aggravating factor is that your offending took place while you were the subject of an extended supervision order imposed for the purpose of preventing this kind of offending.  The second aggravating factor is your previous convictions in 1987 and 2000 for sexual offending against girls of a similar age, with whom you had a bond of trust.

[43]     I propose to increase the starting point by 15 months to take account of the fact that your offending occurred when you were the subject of an extended supervision order.   I also propose to increase the starting point by a further nine months to reflect your previous convictions.

Penalty for breach of extended supervision orders

[44]     I have already imposed a 15 months’ uplift to your sentence to reflect the fact that your offending occurred when you were the subject of an extended supervision order.  The additional breaches of your extended supervision order earlier this year were serious.  However, in my view that offending merits a penalty being imposed that  is  concurrent  to  the  sentence  that  is  imposed  in  relation  to  your  primary offending.  I propose to impose a six months’ prison sentence in relation to all four breaches of the extended supervision order.  That six months’ prison sentence will be a concurrent sentence.

[45]     When these sentences are added together a maximum sentence of five years’

imprisonment is reached.

Overall assessment

[46]     I have also paused and reflected on the overall assessment of a sentence of five years’ imprisonment which I have still to adjust downwards to take account of your guilty plea.   In my assessment, the total sentence that I propose to impose is appropriate in the circumstances of your case and serves the fundamental principles and purposes set out in the Sentencing Act 2002.  Such a sentence:

(1)       holds you accountable for your offending;17

(2)       denounces your conduct;18

(3)       deters others from offending in this way;19   and

(4)       is the least restrictive sentence that can be appropriately imposed in the circumstances of your case.20

Minimum period of imprisonment

[47]     The Crown has sought a minimum period of imprisonment.  I agree with the Crown’s submissions.  I believe that a minimum period of imprisonment is necessary in your case to meet the purposes set out in s 86(2) of the Sentencing Act 2002.  In particular I am concerned about the need to denounce your conduct and to protect the public from you.  The minimum period of imprisonment in this case will be exactly half of your end sentence.

Adjustment for guilty plea

[48]     You are entitled to a 25 per cent discount for your early guilty plea.   This means that your sentence will be reduced by 15 months meaning that your end

17     Sentencing Act 2002, s 7(1)(a).

18     Section 7(1)(e).

19     Section 7(1)(f).

20     Section 8(g).

sentence will be three years nine months, of which you must serve a minimum

period of 23 and a half months’ imprisonment.

Conclusion

[49]     Mr Conroy, would you please stand:

(1)I am sentencing you to a total period of imprisonment of three years and  nine  months,  in  relation  to  the  two  charges  of  indecently assaulting a girl under 12.

(2)Six  months’  imprisonment  for  breaching  the  conditions  of  an extended supervision order on four occasions.   That sentence is concurrent.

(3)       You  must  serve  a  minimum  period  of  23  and  a  half  months’

imprisonment.

(4)      There will be modifications made to your extended supervision order to enable it to continue following your release.

[50]     You may now stand down.

D B Collins J

Solicitors:

Crown Solicitor, Wellington

Public Defence Service, Southern for Prisoner

SCHEDULE 1

R v McDonald [2009] NZCA 248 The appellant was convicted on four counts of sexual violation by unlawful sexual connection, and an indecent act. He had previously been convicted of indecent assault on an eight year old and disclosed in health assessor meeting of approximately 30 occasions when he had sexually assaulted young females. The majority quashed the sentence of preventative detention.21 It considered it was not clear from the sentencing remarks why it was the Judge considered a determinate term was inadequate to protect society. It went on to consider the matter afresh and pointed to the Kia Marama programme, the availability of an extended supervision order, no previous participation in intensive sex offender treatment programme, disclosure of previous abuse indication of self-realisation and engagement, and gaps in appellant’s offending history as favouring a lengthy finite sentence over preventative detention.

R v Parahi [2005] 3 NZLR 356 (CA) The appellant was convicted of indecent assault against a six year old, and had prior convictions for indecently assaulting two 12 year old young girls four years previously, a historic conviction for rape, as well as convictions for peeping tom offences. Mr Parahi was considered to be on cusp of preventive detention due to the low level character of the vast majority of his offending, and the availability of an extended supervision order tipped the balance against preventive detention.

R v Bailey CA102/03, 22 July 2003            The  appellant  was  convicted  of  indecent  assault  on young boy with prior convictions for the same offence, and   he   was   assessed   as   having   a   high   risk   of reoffending.    The  Court  considered the  offending as non-trivial, but also not high on the scale of seriousness. It held that offending at that level does not warrant an indeterminate sentence of preventive detention without first  there  being a  lengthy finite  sentence  as  a  final warning and chance to address underlying problems.

R v T CA125/02, 19 July 2002                   The appellant was convicted on one count of indecent assault against a young boy, and had nine previous indecent assault convictions with young boys. The Court of Appeal considered a lengthy finite sentence could meet the need for public protection, as the offending was at the lower end of the scale; there was not the same degree of persistence as in some cases; and it had been nearly a decade since the appellant committed the offences for which he was most previously convicted.

21     Ellen France J dissenting.