R v de Kwant

[2017] NZHC 2291

IN ACCORDANCE WITH THE REQUIREMENTS OF THE CRIMINAL PROCEDURE ACT S 203(3)

PARTS OF PARAGRAPHS [5], [6], [7], [11], [12], [13], [17], [32], [33] AND [53] HAVE BEEN REDACTED

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

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-009-1518 [2017] NZHC 2291

THE QUEEN

v

RENE MISCHELLE DE KWANT

Hearing:	21 September 2017
Appearances:	C J Bernhardt for Crown E Bulger for Defendant
Judgment:	21 September 2017

SENTENCING DECISION OF MANDER J

Three strikes warning

[1]      Before I proceed to impose sentence I am required by the Sentencing Act to give you what is described as the “three strikes warning”.

[2]      Given your conviction on the charge of committing an indecent act on a boy under 12 you are now subject to the three strikes law, and I am going to give you a

warning of the consequences of another serious violence conviction, as it is so termed.

R v DE KWANT [2017] NZHC 2291 [21 September 2017]

You will also be provided with a written notice which contains a list of these serious violent offences.

[3]      The warning is this.  If you are convicted of any one or more serious violent offences other than murder committed after this warning and if the Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.  If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so.   In that event, the Judge must sentence you to a minimum term of imprisonment.

Introduction

[4]      Mr De Kwant you are for sentence this morning on a representative charge of committing an indecent act on a boy under 12 to which you have pleaded guilty. Because of your past similar offending on children your sentencing was transferred to this Court for consideration of a sentence of preventive detention.

The offending

[5]      The young victim of your offending is the son of a close friend of your partner. In September 2014, at a birthday function, you described to the boy’s mother that you felt you had a personal connection with the child. She was unaware of your history of offending against children.   From around that time you cared for the victim on numerous occasions, [...]  Approximately once a month, from June 2015 to January

2017, you would be alone with the victim [...]. It was on these occasions that you took the opportunity to offend against the boy.

[6]      On the first of these [...] you pulled the victim’s pants down and masturbated him.  Similar offending then took place on each subsequent occasion when you were alone with the victim.  It is estimated that this occurred at least on 12 occasions over the 18 month period of your offending against the child.

[7]      The offending came to light in February this year [...].   The boy became extremely anxious at this prospect and disclosed the offending to his mother.

[8]      When you were spoken to by the police, you admitted the offending and appeared to demonstrate genuine remorse.

Victim impact statements

[9]      Mr De Kwant, you have damaged your victim.  The victim impact statements reveal a child who had to cope with the stress and anxiety of your ongoing offending over a lengthy period, and who must now cope with the ongoing and lasting effects of your abuse.  He is observed as physically and emotionally exhausted and suffering at times from depression-like symptoms.  He has trouble sleeping in his own room at night, fearing nightmares of your abuse. As you heard from his parents this afternoon, the child has regressed.  He has social problems at school and a fear of adult males. You betrayed the trust of the child’s parents who have been left angry and distraught.

Purpose and principles of sentencing

[10]     In sentencing you this morning, I am required to arrive at a sentence which will hold  you  accountable  for the harm  that  you  have done to  your victim  and  the community, and denounces your conduct.  The sentence must reflect the gravity and seriousness of your offending, and the effect upon him and his family.  I must also have regard to your personal circumstances and prospects of rehabilitation.  Because of your history of offending, the protection of the community must be an obvious focus.

Prior offending

[11]     In 2000 you were sentenced to nine years imprisonment for sexual offending against three children.   Your first victim was [...], in relation to whom you were convicted of representative charges of committing indecent acts, indecent assault and sexual violation by digital penetration.  The offending started shortly after you [...] when the child was six or seven years of age.  It commenced with you rubbing her genitalia and escalated to digital penetration when she was 12 years old. The offending continued over very many years, between 1990 and 1998.

[12]   In the same period you offended against [...].   You were convicted of representative charges of indecent assault by masturbation, sexual violation by oral sex and sodomy. The boy was six or seven years old when the offending commenced, and it continued for over eight years. The sentencing Judge described the sodomising as having happened countless times over that period.

[13]     Your third victim was [...] You were convicted of inducing her to do indecent acts upon you, including touching and rubbing your penis.  This offending started when she was only four years old.

Personal circumstances

[14]     You were granted parole on this earlier sexual offending in 2006, and you met your current partner while on parole.  You have now been in a relationship with her for some nine years. Since your release you have worked mainly as a builder.

[15]     You have the support of your partner, and I have received letters from family members and friends who speak of you in positive terms and offer you their support. You are now aged 52 and, perhaps not unsurprisingly having regard to your previous offending, are estranged from your now adult daughter. You have no medical, health, drug or alcohol issues.

Finite sentence

[16]     A sentence or preventive detention can only be imposed if I am satisfied you are likely to commit another qualifying sexual offence if released at the expiry date of the sentence I would otherwise impose.  It is therefore necessary for me to consider the appropriate finite sentence for your offending.   The charge of committing an indecent act on a child on or under 12 years carries a maximum sentence of 10 years imprisonment.

[17]     The aggravating features of the offending against your young victim are readily identifiable:

•The boy was only eight years old at the time the offending started.  He was inherently vulnerable.  I note the summary of facts observes that he was too young to understand what was happening to him, and that he would often freeze and remain motionless and speechless when you sexually interfered with him.

•There is the obvious disparity in age.  You, of course, are a grown and mature man.  That feature highlights the exploitative nature of your actions.

•The offending occurred over a period of at least some 18 months on numerous occasions. You yourself have admitted that had you not been apprehended the offending would have continued.

•         There is the gross abuse of trust. There are a number of aspects to this.

You had been entrusted with the [...] care of the young child.  At the time of the offending  you were supposed to be providing for his temporary care yet you were abusing him.  Inherent in your ongoing offending was the exploitation of the victim’s mother’s relationship [...]. The offending was inherently premeditated.

•There is the harm to the child.  The predictable harm is detailed in the victim impact statements to which I have already referred. The harm is significant.  I do not underestimate the deep long-term difficulties that you have caused to this child and his family.

[18]     In setting a starting point for a finite sentence for your offending I have reviewed previous decisions both of this Court and the Court of Appeal.  There is no sentencing tariff for offences of this type which may range widely depending upon the circumstances of the individual case.  Inevitably the facts and circumstances of each case will be different.  Having regard to the particular aggravating features present in

your offending, I consider a starting point of four years to be appropriate.1

1      Anson v R [2014] NZCA 135; O v R [2010] NZCA 609; R v Lynch [2014] NZHC 1788; Britow v

R [2017] NZCA 229; R v Thorpe [2012] NZHC 229.

Aggravating features personal to the offender

[19]     Your previous history of sexual offending is a significant aggravating feature which I must take into account in assessing a finite sentence. I have already traversed the nature of that offending which was described by the sentencing Judge at the time as  “about  as  serious  as  imaginable”.     Your  counsel,  Ms Bulger,  realistically acknowledges that a 12 month uplift in recognition of this previous sexual offending against children is appropriate.2

Mitigating features personal to the offender

[20]     When the police confronted you with your offending you admitted what you had done.   To various  report writers you have expressed remorse.   It has been submitted on your behalf that you have a willingness to engage with treatment and that the support you have in the community are features deserving of a discount.

[21]     Your remorse is discussed by a number of the report writers. You are described as being angry and disgusted at yourself, however, some of the health assessors perceive that you lack insight into your offending.  You have expressed remorse in your letter to me, and in the opinion of one of the clinical psychologists, Mr Metoui, your remorse and shame is assessed as being genuine.     I note, however, his observations that this is coupled with a high degree of self-pity for the situation you now find yourself in.

[22]     I do not consider in the circumstances of your case a willingness to engage in treatment, and the fact you have the benefit of family and societal support constitute mitigating factors that should attract a deduction in sentence.  Some of these were features present at the time you were sentenced for your previous serious sexual offending, as indeed was your expression of remorse.  Realistically, in my view, your remorse can carry little weight in the circumstances of your reoffending over such a lengthy period, however, obliged as I am, I must acknowledge that feature with a reduction of three months.

Guilty plea

[23]     You have pleaded guilty at the earliest practicable opportunity and therefore, as acknowledged by the Crown, you are entitled to a 25 per cent reduction.

[24]     This results in an overall finite sentence of three years and seven months.

Minimum period of imprisonment

[25]     Because such a sentence would be more than two years imprisonment, I may consider the imposition of a minimum period of imprisonment.  You eligibility for parole would arise after 14 months imprisonment.   In my view that would not be adequate having regard to the nature of your offending and would be insufficient to hold you accountable for the harm that you have done, to denounce your conduct and, importantly because of your recidivism, to protect the community.

[26]     Because of the seriousness of your present offending, which must be assessed against and viewed as a continuation of your past sexual offending against children, and the matters I will consider shortly in assessing the issue of preventive detention, I would consider it necessary to impose the maximum minimum period of imprisonment of two years and four months.

Preventive detention

[27]     Having determined the appropriate finite sentence, I must now consider the issue of preventive detention.  The purpose of preventive detention is not punitive.3

Rather it is a sentence designed to protect the community from those who pose a significant and ongoing risk to the safety of its members.

[28]     The sexual offence to which you have pleaded guilty is a qualifying sexual offence.  You were an adult at the time you committed this offence.  Before I may consider you eligible for a sentence of preventive detention I must be satisfied that

you are likely to commit another qualifying sexual offence if released at the expiry date of the finite sentence.4

[29]     If  these  preconditions  are  fulfilled  a  sentencing  Court  may  exercise  its discretion to impose a sentence of preventive detention.5    I am required to exercise judgment about the risk you will present in the future, after imprisonment and such treatment as the prison system may offer you and with which you are willing to engage. I have received reports from three appropriate health assessors regarding the likelihood of you committing a further qualifying sexual offence to assist me in making that decision.

[30]     The Sentencing Act sets out a number of matters that I must consider when deciding whether or not to impose preventive detention.6   In assessing those factors I have taken into account the submissions of the Crown and your counsel, and have been assisted, as I say, by the reports prepared by the health assessors regarding the likelihood of you committing a further qualifying offence.  I must be satisfied that a finite prison sentence would not be sufficient to protect the public.

Pattern of serious offending

[31]     I must first consider any pattern of serious offending disclosed by your history. This requires a consideration of the frequency and duration of your current offending, the period of time that has elapsed since your last offending, and its overall frequency.

[32]     Your  previous  convictions  were  for  sexual  offending  which,  while  more serious than the present offending, involved similar sexual acts on a male child. While there is a significant gap since that last offending, the nature and circumstances of your offending, in particular your modus operandi which allowed you to offend over long periods against children [...], and the nature of the acts you committed on your most recent victim, means the current offending marks a continuation or repetition of your

prior criminal offending against children.

4      Sentencing Act 2002, s 87(2).

5      M (CA236/15) v R [2016] NZCA 77 at [28].

6      Sentencing Act 2002, s 87(4).

[33]     Both sets of offending occurred over an extended period of time and went undetected [...], during which you took the opportunity to offend while in the capacity of a trusted caregiver when no other adults were present. You developed a relationship of friendship and trust with the victim’s parents which provided you with the opportunity to be alone with the child and to offend.

[34]     It is not disputed the nature of the history of your sexual offending justifies a finding of a pattern of serious sexual offending.

The seriousness of the harm to the community caused by the offending

[35]     The seriousness of the harm caused to the victim from your offending is indisputable.  The immeasurable harm to him, his immediate and wider family, and indeed to the community in general, is plain.  It is well-recognised the jeopardy to the emotional and psychological wellbeing of the victim is very likely to be ongoing. As the Crown has observed by reference to the victim impact statements, the harm you have caused has entered every aspect of the victim’s life and is likely to have long- term effects upon him.   He is the fourth child upon which you have inflicted this insidious damage.

Information indicating a tendency to commit serious offences in the future

[36]     I have had the benefit of three comprehensive reports prepared by clinical psychologists, Ms Snelson, Ms Wilton, and by Mr Metoui. Each has used a variety of risk assessment tools in seeking to gauge the likelihood of your reoffending.

[37]     Ms Snelson has assessed your risk of reoffending based on static factors as likely to fall within the medium to high range, however, when current dynamic risk factors are taken into account she places you in the high risk range.   Similarly,

Ms Wilton assesses you as presenting with a high risk of sexual recidivism over

10 years post your next release into the community.  Mr Metoui, while assessing you as not meeting the criteria for psychopathy which improves the prospects of long-term treatment, opines that your static and dynamic risk factors indicate a medium to high risk of sexual recidivism.

[38]     In summary, absent successful extensive and intensive specific treatment to address your longstanding sexual deviancy, your risk of sexual reoffending against children is significant.

The absence of, or failure of, efforts by the offender to address the cause or causes of the offending

[39]     Mr De Kwant you have in the past been the subject of a series of interventions designed to address your sexual offending.   Prior to your imprisonment for your previous offending you began attending the STOP programme whilst in the community.   During your previous sentence you attended the Kia Marama special treatment unit and completed the programme.   It was thought you had done so successfully.  Following completion of that programme you had some 47 one-to-one sessions with a clinical psychologist on a fortnightly basis until you were released on parole in 2006.  It is recorded that you achieved various individual targets to enhance your ability to manage safety or risk concerns. You attended a weekly graduate group after being released into the community and continued with individual psychological treatment until the completion of your sentence in 2009.

[40]     Your apparent active engagement and successful completion of this intensive programme of intervention has not prevented you from reoffending.  Despite having comprehensive offending-related treatment you reverted to a pattern of behaviour that enabled you to minimise and justify the ongoing sexual abuse of a child, and involved continued secrecy and breach of trust of your victim’s family and indeed your own partner.  I quote from Mr Metoui’s report:

Mr De Kwant’s lack of insight into his index offending, including the parallels with his previous offending was a startling feature of his presentation.  He endorsed a range of offence-related cognitive distortions throughout the assessment that included denial, justification, and minimisation.  The degree of his poor insight was surprising and of concern given that Mr De Kwant has previously completed the Kia Marama sex offender programme.   It was obvious from his various accounts that he had long abandoned the various teachings and skills he gained at his time in the Kia Marama Unit and subsequent refresher courses he attended during his probationary period after his last prison release.

[41]     When challenged with Mr Metoui’s conclusions, you say you were shocked by the extent to which you had strayed.  You maintain that you are highly motivated to

re-engage in psychological intervention, including a willingness to engage again with the Kia Marama programme while in custody. You have acknowledged your need for further intensive professional assistance, and you are described as appearing genuine in your willingness to obtain such treatment.   However, the opinions of the psychologists regarding the effectiveness of further treatment is mixed.

[42]     Ms Snelson is not convinced that further treatment will be successful given the amount of hours that have already been spent in psychological therapy.  Ms Wilton and Mr Metoui have expressed the view that notwithstanding the failure of previous treatment in the past, they do not consider further treatment would necessarily be ineffective.   Ms Wilton notes that you would require intensive residential group treatment over a time period measured in years.

[43]     All the health assessors recognise that notwithstanding previous therapeutic interventions and the pro-social support of friends and family willing to assist and involve themselves with your ongoing rehabilitation, you have been motivated to, and demonstrated  an  ability  over  a  sustained  period  to  secretly resume  your  sexual offending.  This demonstrates an inability to sustain whatever gains you made as a result of the intensive treatment you received as a result of your previous offending.

[44]     I acknowledge that you have voluntarily engaged with a psychologist while on remand at your own expense, which is to be endorsed, but I cannot help but observe that this type of action mirrors your response to your situation after your earlier apprehension when  you  voluntarily attended the STOP programme before being sentenced for your earlier offending. It appears only when you are discovered are you motivated to address the deep-seated issues at the root of your offending.

Principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[45]     I have to balance the risk of your reoffending against the need to protect the community.  A sentence of preventive detention would ensure that you would not be released until there was a degree of confidence that the safety of the community will not be placed at risk.  It will also ensure that upon release, should you revert to high risk behaviour, you would be recalled.

[46]     The Crown has submitted that preventive detention is not a sentence of last resort, albeit its imposition must be carefully considered.7    It submits that the imposition of a finite sentence will not alleviate the future risk that you pose of committing serious sexual offences, and that the finite term of imprisonment that would otherwise be imposed is insufficient to meet the risk you pose to the community.

[47]     Ms Bulger, on your behalf, has stressed to me, and correctly so, that I must be satisfied that protection cannot adequately be provided to the community by way of a finite sentence which may include a minimum period of imprisonment.   She has stressed your willingness to engage in further treatment and intervention, and that you have been open and honest with the report writers, pleaded guilty at the earliest appropriate opportunity, and that the treatment and interventions which will be available to you while serving a finite sentence will address the risks you pose. I have considered her submissions carefully.

Decision

[48]     Mr De Kwant, I am satisfied that you are eligible to be sentenced to preventive detention. I consider there is a high risk of you reoffending and that absent appropriate intensive treatment being effective you would be likely to commit another qualifying sexual offence at the expiry of a finite sentence.  The appropriateness of imposing a sentence of preventive detention turns largely on whether I consider it necessary to do so in order to protect the community from the risk you pose, or whether I consider the risks can adequately be met by the imposition of a finite sentence.

[49]     The sentence that would otherwise be appropriate in your case would be one of three years and seven months imprisonment.   Preventive detention is an indeterminate sentence which would require a minimum period of imprisonment of at least five years.   There is an obvious difference between those sentences which underlines the need for me to be sure before I impose a sentence of preventive detention in your case.8   I must be satisfied that the finite sentence cannot adequately

address the issues to which your offending gives rise.

7      R v Seu CA15/98, 6 May 1991.

8      R v Burkett CA416/00, 21 February 2001, at [21].

[50]     In my view there are strong factors in your case which favour the imposition of preventive detention.    Firstly,  there is  the history of  your offending and  the persistence of that offending.  While the current offending is less serious than your previous convictions you have consistently demonstrated an ability to offend against children over long periods of time. The grooming behaviours and manipulation which

is intrinsic to the pattern of your offending means it is more difficult to detect and stop. The resulting serious harm to victims cannot be ignored.

[51]     The failure of the Kia Marama programme and associated interventions to stop your offending in the long term, and the concerns that have been expressed by the psychologists about what that may mean for your potential rehabilitation is a consideration which I am obliged to take into account.   Your present offending

involves deliberately ignoring the knowledge, and presumably your understanding of the risks and strategies required, to prevent such reoffending. You deliberately ignored this knowledge.   At this point it is unclear as to whether you would develop the capability to do so in the future.

[52]     You have a support network within the community and people willing to assist you to avoid your offending but this has been the case in the past and was the case at the time of the present offending.  I acknowledge Ms Bulger’s submission that many of these people are now aware of your background and better placed to intervene, but the fact remains that you appear capable of separating your abusive behaviours from the rest of your life, remaining, as Ms Wilton observed in her report, apparently “normal” to others.  This reduces the ability of others to monitor and assist you to manage the risk you present.

[53]     You appear genuinely remorseful and motivated to address your offending, to participate in therapy and to do what you can to avoid such offending, but this apparently has been the case with you since the time [...].

[54]     A number of the health assessors have referred to age as potentially being a factor which reduces the risk you present, but that is qualified by the observation that your recent offending is more consistent with a group of sexual offenders whose risk

is less affected by age, and who have a continued propensity to act upon deviant sexual urges.

[55]     I do not overlook the fact that you were able for a significant period to live successfully in the community, but the fact remains that you failed to sustain whatever gains you achieved as a result of your previous intensive treatment and resumed sexual offending against a young boy.  While that offending was of lesser severity to your earlier offending it paralleled your previous sexual offending, including grooming your victim, betrayal of trust, maintaining secrecy over at least some 18 months, and required external intervention before bringing your abusive behaviour to an end.

[56]     I have given careful consideration as to whether the potential availability of an Extended Supervision Order at the end of a finite sentence would provide adequate protection to the public.  Such a consideration may tip the balance against preventive detention sentences in some cases, but I do not consider it sufficient in the present situation.  It cannot be used to avoid the imposition of preventive detention if that is the appropriate sentence in the circumstances.9

[57]     I have also given anxious consideration to Ms Bulger’s submissions on your behalf, and in particular the need for you to immediately have the benefit of treatment such as the Kia Marama programme.  She fears a lack of motivation on your part should such an opportunity be delayed. I accept that you have expressed a willingness and motivation to address the causes of your offending and to engage in further treatment and intervention.  However, the difficulty that I have is that you have been sexually offending against children since 1990 and, as matters presently stand, past intensive treatment which you have willingly engaged in has not prevented you from continuing to offend.  You remain at high risk of reoffending, and the level of harm you present is significant.   Accordingly, I am satisfied a sentence of preventive detention is the appropriate response to your sexual offending.

[58]   In imposing that sentence I am required to set a minimum period of imprisonment.10   That minimum period of imprisonment must necessarily reflect the

9      R v Parahi [2005] 3 NZLR 356 at [87].

10     Sentencing Act, s 89(1).

gravity of your offending and be adequate to protect the public.11     I consider a minimum period of imprisonment of five years, which is the least period that can be imposed, to be adequate to meet both those objectives.

[59]     Mr De Kwant will you now please stand.

[60]     Mr De Kwant, I sentence you to preventive detention and order you to serve a minimum period of imprisonment of not less than five years. You may stand down.

11     R v C [2003] 1 NZLR 30 (CA).