R v Daniel

[2014] NZHC 326

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-032-2371 [2014] NZHC 326

THE QUEEN

v

TRAVELLER DANIEL

Hearing:	28 February 2014
Counsel:	A J Ewing for Crown K Preston for Accused
Sentence:	28 February 2014

SENTENCE OF SIMON FRANCE J

[1]      Mr Daniel, you are for sentencing having pleaded guilty to  one count of sexual violation by digital penetration.  The victim was then a six year old girl, a family member, who, like you, was staying occasionally at the house where this happened.  You and her were lying together in the lounge under a blanket. You held her down and removed her lower clothing. You then violated her; the victim said the offending lasted for “ages”. The offending represents the worst type of breach of trust on your part against someone who deserved only good things from you and received this instead.

[2]      At the moment, at least outwardly, the young girl seems relatively unaffected. The hope of course is that it will remain the case but experience tells us there is

cause for concern.

R v DANIEL [2014] NZHC 326 [28 February 2014]

[3]      This is not your first episode of sexual offending.  When you were 21 years of age you approached a woman in the street, someone you did not know, and said you wanted sex.  You touched her over her clothing, forcefully grabbing her right breast. The woman was with her young daughter at the time.

[4]      Then two and a half years later, you raped a 17 year old.  You had been in communication with her previously but met her for the first time that day.  It was at a party. At one point, when most had gone, you followed her to the bathroom, held her captive in there and raped her.

[5]      You were sentenced to five years jail, were released but breached your release conditions and went back to jail.  Eventually you were released in 2008.  The present offending occurred in 2011 or 2012.

[6]      You are today 32  years of age.   In  addition to these offences  you have committed a few different types of crime but these sexual offences stand out as the most serious and worrying.  You have a long term diagnosis of schizophrenia and a not good record of being compliant with your medication.  At the moment, though, having been in custody for 16 months and subject to forensic care, you are reported to be mentally stable.   Dr Barry-Walsh noted in November that you had improved considerably, and then in February that there was some improvement again.  This is important for the decision I have to take today because the likelihood that you will respond  to  treatment  for  your  sexual  offending  is  greatly  improved  if  you  are mentally stable.

[7]     The key decision I have to take today is whether a fixed sentence of imprisonment will offer enough protection to society from the risks you pose.   A fixed  sentence  will  be  in  the  range  of  five  years,  of  which  you  have  served

16 months.  That means you will be entitled to release in about three and a half years if a fixed jail term is imposed.  It may be sooner but that is the longest it will be.

[8]      A psychologist who has assessed you considers your risk rating to be on the boundary between high and moderately high.  Dr Barry-Walsh notes there are factors that place you in a group which is recognised to have potential for further offending.

Both experienced professionals qualify this by observing that you have not yet had the type of intervention and treatment they would recommend.  That would have the potential to significantly limit the risk you pose if you respond to it, but that is always the unknown.

[9]      Having weighed all the matters I have decided not to impose preventive detention:

(a)      your   pattern   of   offending   is   troubling   but   does   not   suggest inevitability. Three separate sexual offences by the age of 32 is a matter of serious concern. However, there are time gaps after release before further offending, and this offending was quite different from what occurred before;

(b)you have not yet been subject to the intensive treatment recommended and required in this case.  There have been similar shorter blocks of treatment in the past but these were interrupted either by circumstance or on occasions by your lack of insight;

(c)       it appears your mental health has stabilised and can be controlled;

(d)you have admitted your guilt, and are clearly remorseful and appear to be  receptive  to  treatment.    You  affirmed  your  guilty  plea  after knowing that you were to be committed to this Court for consideration of the sentence of preventive detention. Whilst on remand you have undergone counselling and the counsellor is positive about your willingness to engage;

(e)       you  have  insight  into  why  offending  against  children  is  wrong.

Dr Barry-Walsh recounts your explanation which he correctly records as being quite sophisticated.  This is positive in terms of the prospects that treatment may help;

(f)       you are liable to an extended supervision order when released.

[10]     I do not consider your offending has escalated or decreased.   This and the past offending are different but each equally destructive of the victim.

[11]     On balance and placing weight on the fact that you are only 32 years old, are remorseful and displaying insight and there is targeted intensive intervention that can be given to an extent not previously tried, I am of the view that a lengthy finite sentence, together with the possibility of an extended supervision order, will provide adequate protection for society.

[12]     That reasoning does mean however that the finite sentence must be towards the top of the available range.  I consider that a single incident occurring in a context of a gross breach of trust requires firm denunciation, and deterrence.  Your counsel suggests a range of four and a half years to five years and I accept the top of that.  It is lower than the Crown suggests but I consider it correct for a one-off incident. There must be an uplift for your past offending.  This figure is longer than I would normally impose but reflects also the need for protection of the public in circumstances where you pose, at present, an ongoing risk to the community.  I add

18 months meaning a final starting point of six and a half years.1

[13]     As for mitigation I do not intend to give any credit other than for your guilty plea.     I  have  already  considered  remorse  and  insight  when  deciding  against preventive detention.  I do not consider these factors otherwise require recognition in the final sentence.  They are to be welcomed but the key, Mr Daniel, will be for you to make good on them.   In the interim I decline to shorten your sentence further. Having read the reports I am not satisfied there is a direct link between the offending and your illness.   There is also always the added complication that you have at various times failed to take the medication that would control your illness.

[14]     As for imposing a minimum period of imprisonment, it is I consider largely theoretical as you will not be ready for release for some time.  However, eligibility

after one third (here 20 months) would be inadequate denunciation of your offending

1      There was a sentencing indication given in the District Court.  Counsel agree I am not bound by it.

and inadequate protection for the public.  Accordingly, I impose a minimum parole term of 50 per cent.

Please stand.

On the count of sexual violation I sentence you to five years imprisonment.

I impose a minimum non-parole period of 50 per cent.

Solicitors:

Luke Cunningham & Clere, Crown Solicitors, Wellington

Public Defence Service, Wellington

Simon France J