R v Fowler
[2017] NZHC 484
•16 March 2017
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
CRI-2015-009-007371 [2017] NZHC 484
THE QUEEN
v
COREY DAVID FOWLER
Hearing: 16 March 2017 Appearances:
C J Boshier for Crown
S G Bailey for DefendantJudgment:
16 March 2017
SENTENCING NOTES OF DUNNINGHAM J
[1] Mr Fowler, you are here for sentencing today having pleaded guilty to, and being convicted of, the following charges:
(a) two counts of sexual violation by rape;
(b) two counts of sexual violation by unlawful sexual connection; (c) aggravated burglary;
(d) sexual conduct with a young person;
(e) attempted sexual violation by unlawful sexual connection; and
R v FOWLER [2017] NZHC 484 [16 March 2017]
(f) attempting to pervert the course of justice.
[2] The maximum periods of imprisonment for these offences range between seven and 20 years.
Three strikes warning
[3] As all of the sexual charges which you have been convicted of are serious violent offences under s 86A of the Sentencing Act 2002, you are now subject to the three strikes law.
[4] I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists what the ‘serious violent offences’.
1.If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.
2.If you are convicted of murder committed after this warning then you will be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
Background
[5] As you will be aware the key issue I have to consider today is whether to sentence you to a finite term of imprisonment or to preventive detention. To address that issue I have received health assessors’ reports from Dr Maxwell Panckhurst, a consultant psychiatrist, and from Dr Lara Aitchison, a registered clinical psychologist.
[6] However, before I address that issue, I will outline the background to the offending.
[7] Your victim was a 14 year old female. She was known to you and you were in a relationship with her mother.
[8] On 17 June 2015, the victim was asleep in her bedroom. Her mother, her five year old brother and a male boarder were also sleeping in the home. You gained entry to the address and entered her bedroom and approached her, causing her to wake up. You then forcibly removed her clothing and raped her. You also performed oral sex on her before leaving the house.
[9] On 11 August 2015 at around 9.30 pm, you visited the victim’s mother at
their home. The victim was there but went to bed and fell asleep at around
10.00 pm. Both you and the victim’s mother left the address, meaning that the male boarder was the only other person home with the victim. At approximately 1.45 am on the same night, the male boarder was awake and watching movies at home. He heard unusual noises coming from a bedroom and went to investigate. He found you in the hallway, wearing black clothing, a black beanie and a dark blue scarf covering the lower half of your face. You explained to the boarder that you had permission to return to the address. He accepted that explanation and spent the next couple of hours with you. You then left at about 4.00 am and the boarder went to sleep.
[10] Sometime between 4.00 and 5.00 am, you re-entered the address through the bedroom window. The victim was awoken from her sleep and you forced her out of bed. You then blindfolded her with a dressing gown belt which you had located. She was crying. You then produced a knife and told her that it could be done the easy way or the hard way. The victim refused to comply so you held the knife against her back and forcibly removed her clothing. She tried to leave the bedroom multiple times but you would not let her. You continued to hold her down and whenever she tried to call out, you placed the knife to her back. You told her to be quiet and not to remove the blindfold and you pulled her t-shirt up over her head. You then pushed her onto her back, on top of the bed and touched her genitalia and grabbed her breasts. You inserted your fingers inside her vagina and you performed oral sex on her. You then turned her on her back, telling her she had to choose “bottom or mouth” to which she replied “none”. While still holding the knife, you inserted your penis into her anus twice. You then made her sit on the floor at the end
of her bed where you tried to put your penis into her mouth and ejaculated on her cheek.
[11] You then told the victim to wait in her room. You went into the bathroom and washed your hands and hid the knife in a stack of towels. You then returned to the victim’s bedroom and told her that if she told anyone you would come back and things would be worse next time. You then left the address.
[12] When the victim told her mother what had happened the next morning, the police were called. You became aware of this and you told your current partner to tell the police that you had been home with her that night. She did so but later retracted her statement.
[13] DNA testing identified your semen on the t-shirt that the complainant used to wipe her cheek and other swabs taken from the victim were consistent with the tested material having originated from you.
Sentencing principles
[14] In sentencing you today, I have to have regard to a number of matters. I have to hold you accountable for the harm you have done to the victim. I have to promote a sense of responsibility in you for the harm done. I am to deter you and others from such offending. I am also to denounce your conduct. I must take into account the seriousness of the type of offending in comparison with other similar offending. I must also take into account the need to protect the community.
[15] The lead offending here, that is the most serious offending, are the charges of sexual violation by rape and by unlawful sexual connection. Both your lawyer and the Crown agree that the guideline judgment of R v AM, should be used to assess the aggravating features of this offending. 1 Based on these, you have heard the Crown say your offending falls at the high end of band three, or the lower end of band four and that would mean a starting point of 18 years’ imprisonment. The Crown also says that preventive detention should be imposed.
[16] Your lawyer has said that the offending falls at the lower end of band three and that a sentence of 12 – 13 years should be taken as the starting point. She also submits that preventive detention is not appropriate but she acknowledges that a minimum period of imprisonment of half the sentence would be.
[17] In my view, the aggravating features of your offending are as follows:
(a) There was a degree of planning and premeditation in the August offending. You disguised yourself and, when you were disturbed by the boarder, you then bided your time until you could leave and re-enter the house to commit the offending. Ms Aitchison says your offending involved “active planning, precipitated by sexual deviant thoughts about this victim”. So, I am satisfied this aggravating feature is present to a moderate degree.
(b)There was also a level of violence and detention in your offending, which was more than that that is inherent in any act of sexual violence.2 What I mean by that is it includes threats of harm, the presence of weapons and other forms of intimidation designed to assert control or prevent a victim from reporting the offending.3
Home invasion also increases the seriousness of the offending.4 I am
satisfied that all those factors were here to some degree. You broke into the victim’s house you armed yourself with a knife. You held the knife to her to ensure her compliance. You blindfolded her with a dressing gown belt and pulled her t-shirt over her head to obscure her view of what was happening. You pushed her down on the multiple occasions she tried to leave her room and you threatened to come back and do worse things if she told anyone.
(c) Another aggravating feature in this case is the vulnerability of your victim. She was only 14 at the time, while you were 34 and you also
knew her mother was not at home.
2 R v AM, above n 1, at [38].
3 At [39].
4 Sentencing Act 2002, s 9(1)(b).
(d)In terms of harm to the victim, the victim impact statement made compelling reading. While the victim accepts there has been no lasting physical harm, there clearly has been overwhelming psychological harm.
(e) The scale of the offending and the degree of violation is also, in my view, a moderately aggravating feature in this case — there were two separate incidents of sexual offending against the victim and, on the first occasion, there were two separate sexual acts for which you were charged, and on the second occasion, there were many more.
(f) There is also the aggravating factor of a breach of trust. You had been the partner of the victim’s mother and you had spent time with the victim in a step-parent-like relationship. You heard in her victim impact statement that she trusted you and that you were part of her life for around a year.
[18] No mitigating features of the offending were identified.
[19] I am satisfied, taking account of all those factors, that this offending falls squarely within rape band three. The offending involved more than three aggravating factors to at least a moderate degree. The second incident was clearly more serious than the first, because of the use of a weapon, and a blindfold, the use of threats and the repetition of sexual offending. However, I accept that when compared with cases such as Campbell, which your lawyer has referred me to, the
duration of the offending was relatively limited.5
[20] I also consider that the subsequent attempt to pervert the course of justice was a sufficiently distinct offence that it also aggravated the seriousness of the offending.
[21] I consider a starting point of 15 years’ imprisonment is appropriate on the lead charges and it also reflects the totality of the offending.
Aggravating and mitigating features of the offender
[22] I now turn to the factors which might justify increasing or decreasing the starting point. The Crown notes that you have 45 previous convictions and these include three for sexual offending on children. The Crown submits that there should be an uplift to reflect this. However, as your lawyer notes, these occurred in 1996 and 1997, when you were 15 and 16 years old and, when compared with the current offending, it was relatively minor. There has been no indication of sexual offending in the ensuing period of nearly 20 years.
[23] In my view, taking into account the context of the earlier offending which is discussed in the health assessor’s reports, and these include your relative youth at the time, your traumatic upbringing and the long time which has elapsed since that offending, it does not warrant an uplift to the starting point.
[24] Your lawyer also submits that you should get some credit for your expressed remorse. However, the Crown says that you have not displayed any remorse over and above what your guilty plea reflects. In support of that submission, the Crown refers to Ms Aitchison’s view which is “although you reported feeling remorse for [your] victim, [your] ability to accurately identify [your] emotions was unclear” and, further on, she says that while you “will verbally admit guilt and remorse … whether this is genuine or not is unclear”. The pre-sentence report writer was more confident in dismissing your remorse. That writer said you “simply did not comprehend the repercussions that [your] offending will have on her for the rest of her life”.
[25] Your own lawyer says you should not be penalised for the fact you are not very articulate or expressive with words, but that you have assured her that you are sorry for the damage you have caused.
[26] In my view, any expressed remorse does not warrant an adjustment to the starting point. You have minimised your level of responsibility. You said to Dr Panckhurst in relation to the first offence that “to some degree the victim had joined in”. Furthermore, with Ms Aitchison, you sought to minimise your culpability in relation to the second set of offending, saying that “it must have been impulsive” when that was inconsistent, in my view, with the degree of planning that was
evident. I consider that you accept responsibility for the events in light of the overwhelming evidence against you, but you have a limited level of empathy for your victim and therefore remorse for what you have done to her.
[27] I therefore do not consider that a discount for remorse is required.
Guilty plea
[28] The next issue is the credit for your guilty pleas. In that regard, you first appeared before the Courts on 13 August 2015, the day after the second alleged attack and you entered a not guilty plea in October that year. A trial was set for
30 May, but it was rescheduled first for 8 August, and then for 21 November while they awaited the DNA analysis.
[29] You finally pleaded guilty to the charges on 10 November 2016, only two weeks before the scheduled trial date. That was presumably in light of the DNA testing.
[30] It is clear you did not plead guilty at the first available opportunity and in any case, I consider the Crown case against you was strong, even without the DNA evidence. In these circumstances, I accept that the only benefit flowing from the guilty plea was that the victim did not have to give evidence at trial. So while I consider that was a significant benefit, a defendant cannot expect to receive the same discount if a guilty plea is given more than a year after charges are laid, and only two weeks before the hearing. In my view, a 15 per cent discount generously reflects the main benefit of your plea, which is that the victim did not have to give evidence at trial.
[31] If I give a 15 per cent discount, that results in a sentence of 12 years, nine months’ imprisonment.
Preventive detention
[32] The Crown argues that, because you meet the criteria in terms of age and having been convicted of a qualifying offence and there is a significant risk of you further offending, that I should impose preventive detention.
[33] To impose such a sentence, I must be satisfied that you are likely to commit another qualifying sexual or violent offence if released on expiry date. In deciding whether to impose it, I have to take into account a range of things. These include:
(a) any pattern of serious offending disclosed by your history; and
(b) the seriousness of the harm to the community caused by your offending; and
(c) any information indicating a tendency to commit serious offences in the future; and
(d) the absence of, or failure by you to address the cause or causes of the offending; and
(e) the principle that a lengthy determinate sentence is to be preferred if it gives adequate protection for society.
[34] As Dr Panckhurst says, he is “unable to provide expert opinion regarding the likelihood of reoffending upon release, as psychiatric predictions so far into the future is unreliable from a scientific perspective”. But what he does do is discuss the risk factors that are currently present, along with “protective factors” he has identified, and your treatment needs. I accept that, at best, the health assessor’s reports can only provide opinions on current risk, and on future risk, based on a statistical perspective, or what we call an “actuarial” perspective. In this case, the health assessors’ reports do conclude that you are likely to commit a sexual offence on release and I accept that conclusion. I therefore have to consider your particular circumstances, and take into account the matters I have just listed, to decide whether I should impose preventive detention.
Pattern of serious offending — s 87(4)(a)
[35] In terms of the pattern of serious offending, I have already explained that your previous offending is of limited relevance to the present offending. You were a minor at that time and there has been an 18 year gap between that and the current offending, I do not think there has been a clear pattern of serious sexual offending. That is not to minimise the seriousness of the current offending.
Seriousness of the harm — s 87(4)(b)
[36] There is no doubt that the offending has had a serious effect on the victim’s
life and I take that into account.
Tendency to commit future serious offences — s 87(4)(c)
[37] In terms of the tendency to commit serious offences in the future, you are assessed at being at high risk. Dr Panckhurst notes that the risk factors include substance abuse problems, relationship problems and the range of sexual offences for which you have been convicted.6 Ms Aitchison also concludes that, using the risk measures and assessment tools she has, your risk of sexual reoffending compared to other sexual offenders, is estimated as high in the long term.7
[38] I accept, that, without intervention, there is a high risk of sexual offending in the future and if you do reoffend, it is likely to be against young females and where you would use sex and violence as a way of gaining power and control over your victims.
Efforts by the offender to address offending — s 87(4)(d)
[39] The Crown records that you have not previously received treatment for sexual offending. You did not complete the recommended community programme after release for your earlier offending, but Dr Panckhurst does note a number of reasons why that might have been. Ms Aitchison noted a range of factors which might impact on your ability to respond to treatment. It is of concern that she says
you have “little motivation for addressing [your] offending related needs” and that your personality structure may act as a barrier to positive engagement in treatment. That said, she said you have no cognitive impairment, which means you have got the intellectual ability to benefit from a treatment programme. She also says there are some protective factors present. Those are factors that will help you, and these are things like your good work ethic, your expressed motivation to attend a programme, the fact that your attitude to authority is improving and that you do have some long term life goals. She considers that an intensive group based treatment which is available in prison could assist you to improve your ability to understand the risk and to manage that. I consider there is at least a prospect that your offending risk could be addressed through participation in a such programme.
Lengthy determinate sentence preferred — s 87(4)(e)
[40] Finally, I consider the requirement that I should prefer a finite sentence of prison as opposed to preventive detention where that is adequate to protect the public. I accept that preventative detention is the most serious penalty available. I have also had regard to the possibility that you could be subject to an extended supervision order or some other ongoing monitoring if you are considered to continue to constitute a risk to the public at the time you come up for release.8
Conclusion
[41] In my view, there has not yet emerged an ongoing pattern of serious sexual offending, you have not previously undergone treatment, and there are indicators that you could benefit from treatment. Thus, I consider this is not a case that reaches the level required to impose a sentence of preventive detention.
[42] That leaves me with the issue of whether to impose a minimum period of imprisonment. I have no doubt, as your lawyer accepts, that the circumstances for imposing one are engaged and I intend to do so for all the reasons that are set out in the Sentencing Act.9 I will impose a period of just over half of the sentence.
[43] I also have to impose sentences for the rest of the charges, but these will all be concurrent sentences. That means you will serve them at the same time as the main sentence.
Sentencing
[44] Mr Fowler, will you please stand. Mr Fowler, on the lead charges of:
(a) sexual violation by rape and sexual violation by unlawful sexual connection, I sentence you to 12 years nine months’ imprisonment with each sentence to be served concurrently;
(b)on the aggravated burglary charge, I sentence you to one year imprisonment to be served concurrently;
(c) on the sexual conduct with a young person, I sentence you to one
year’s imprisonment to be served concurrently;
(d)on the charge of attempted sexual violation by unlawful sexual connection, I sentence you to two years’ imprisonment to be served concurrently;
(e) on the charge of attempting to pervert the course of justice, I sentence you to one year’s imprisonment to be served concurrently;
(f) on the lead charges of sexual violation by rape and by unlawful sexual connection, you are also sentenced to a minimum period of imprisonment of six years and six months.
[45] Stand down.
Solicitors:
Raymond Donnelly & Co., Christchurch
S G Bailey, Barrister, Christchurch
Addendum:
Because you have been convicted of identified sexual offences against a young person, you will have to be subject to and entered on the Child Sex Offenders’ Register. There are a number of obligations that go with it on your release from prison, including requirements to provide your addresses each time you shift. You will get given the details of that in writing, so that you understand what that involves. So as long as you understand Mr Fowler, that you will be subject to that requirement, that is all I need to do at this stage.
Dunningham J
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