R v Gay

[2017] NZHC 3149

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-009-8211

[2017] NZHC 3149

THE QUEEN

v

DAVID JOHN GAY

Hearing:	14 December 2017
Appearances:	B Hawes and C White for the Crown M Starling for the Defendant
Judgment:	14 December 2017

SENTENCING REMARKS OF MANDER J

[1]    David Gay, you appear this morning for sentence on a charge of indecent assault of a girl between the age of 12 to 16 years, a representative charge of indecent assault on a girl under 12 years, and a representative charge of sexual violation by unlawful sexual connection. To those charges you have entered guilty pleas. Your sentencing was transferred to this Court for the purpose of considering the imposition of a sentence of preventive detention.

Background

[2]    It is necessary that I first set out the factual background to the offending for which you are before the Court.

R v GAY [2017] NZHC 3149 [14 December 2017]

[3]    The earliest of the offending dates back to 1985, when you were 22 years old. Your victim was the 12 year old stepdaughter of a friend. You were watching a pornographic video at the victim’s address and the victim was sitting on the couch with you. You placed your hand inside the victim’s pants and began fondling her vagina. The victim grabbed your hand, pulled it out of her pants, and told you to stop.

[4]    Your second victim was the daughter of a woman with whom you were in a relationship in the mid-1990s. Over a period of some three years you periodically lived with the woman and her daughter. On an occasion in 1995, the victim’s mother left her daughter alone with you at home. The daughter was upset about her mother going out and you, at least, ostensibly, were comforting her. While doing so, you placed your hand inside her underpants and inserted your finger into her vagina. At the time she was nine years old. Over the following three years you repeatedly violated the child in this way.

[5]    On a separate occasion, you went into the victim’s bedroom and sat down beside her. You rubbed your hands over the victim’s body, touching her bare chest and the outside of her vagina. Again, the child was repeatedly sexually molested in this way over the next three years.

Victim impact statements

[6]    I have received victim impact statements from the two young girls who were your victims. They are now grown women but the impact of your offending remains with them. Undoubtably, they have been damaged as a result of your offending. It has affected their ability to develop relationships. It has caused them long-term anguish, and, in the case of your victim from the 1990s, the resulting issues she was forced to deal with growing up as an abused child has, in her words, “messed [her] whole life up”.

Offending history.

[7]    Mr Guy, you were first convicted of serious sexual offending against children in 2003 when you pleaded guilty to two charges of sexual violation by digital penetration, one charge of indecent assault, and a representative charge of doing an

indecent act in front of a child. Your victims were aged five years and the other not yet two. The offending occurred over the course of a month. You also at that time pleaded guilty to a charge of indecently exposing yourself to an eight year old girl in a car park. For this offending you were sentenced to three and a half years’ imprisonment.

[8]    An Extended Supervision Order (ESO) was made after your release in 2007. However, shortly after you entered an unlocked house and abducted a sleeping child. After wandering through the house and taking some property, you picked the seven year old girl up and carried her outside, there you removed her underwear before she woke up and screamed.

[9]    When you were sentenced for that offending, this Court noted that you had a “demonstrated pattern of sexual offending that was escalating over time”. During your earlier imprisonment, you completed the Kia Marama programme, however, it failed to prevent you from reoffending. You were sentenced to preventive detention with a minimum period of imprisonment of eight years.

Disclosure of present offending

[10]   In February this year, you requested to speak to a police officer in order to disclose sexual offending that had not previously come to the attention of the authorities. Following this disclosure, you pleaded guilty to the present charges.

[11]   I must consider the imposition of a further sentence of preventive detention. The alternative is the imposition of a finite sentence. In either case, the sentence must be imposed concurrently.1 No issue arises regarding the Court’s power to impose a second sentence of preventive detention, and it is for that reason that I have set out the history of your previous sexual offending.2

1      Sentencing Act 2002, s 23.

2      T (CA 43/2013) v R [2013] NZCA 497 at [23]; R v Howse [1963] NZLR 971 (CA) at 972; Mackrell

v R (1999) 16 CRNZ 1 (CA) at 8-9.

Psychiatric reports

[12]   I have had the benefit of reading two health assessors reports that provide detailed information regarding your background and factors relevant to the assessment of the risk you present to the community.

[13]   Dr Miller, a consultant psychiatrist, notes that your upbringing was characterised by dysfunction, violence and abuse. You received no education beyond the age of 12 years and you have never been in stable employment. You describe yourself as a loner whose offending tends to begin when you are alone and feel unwanted. You are currently six months into a second Kia Marama programme. Your programme coordinator advises that while you appear to be progressing, it is difficult to know whether such progress is more than superficial.

[14]   Dr Miller opines that he cannot be confident there has been any significant change in your propensity to offend. He concludes that you remain at high risk of offending in the way you have done in the past and would require very high levels of support if released back into the community.

[15]   Ms Neame, a clinical psychologist, reports that you presented with a lack of remorse or guilt for your offending. Both health assessors refer to the thrill you obtain from risk-taking behaviour, and that you have not been deterred by prior offence- focussed treatment, significant sanctions, or community management, from reoffending.

[16]   The accounts that you gave to Ms Neame reveal more intrusive offending than is disclosed in the summary of facts. Commenting on the difference between the accounts you provided to her and the official record, Ms Neame observes the account you provided “... indicates distorted beliefs and a lack of awareness and insight into [your] extreme grooming behaviour, children’s ability to provide consent to engage in sexual activity with adults, and the harm that may have been caused to [your] victims”.

[17]   Ms Neame notes the progress you have made in the Kia Marama programme, which has been described as “adequate”, and that you are more engaged. However, she observes that similar progress was made the first time you completed the

programme and she urges caution. You are assessed as being at high risk of both violent and sexual reoffending.

[18]   In summary, Ms Neame concludes that your proclivity for sexual offending has increased in “versatility and seriousness over time” notwithstanding lengthy periods of imprisonment and treatment. She considers that due to your history of rapid reoffending after release and the increasingly risky and serious nature of your offending, you currently require continued treatment, extensive oversight, and external management. She considers any future release would need significant planning and careful consideration.

Finite sentence

[19]   It is necessary that I first consider the appropriate finite sentence before turning to the issue of preventive detention.

[20]   The lead representative charge of sexual violation dates back to the mid-1990s, however, the same maximum penalty of 20 years’ imprisonment applied then as it does today. The Court of Appeal’s guideline judgment of R v AM is the appropriate reference in fixing a starting point.3

[21]The aggravating features of the offending are not disputed:

(a)The vulnerability of the victim: Each of your victims were very young aged between 9 and 12 years.

(b)The harm to the victim: I have made reference to the distressing impact of your offending. The effect of sexual offending on children and the ramifications for those victims as they continue into adulthood cannot be underestimated.

3      R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750; R v Jeffries [2012] NZCA 608 at

[83]-[84].

There is:

(c)The breach of trust: You were in a relationship with one of the victim’s mother’s and took the opportunity to offend when she left the house and the child left in your care. The offending represents a significant breach of trust.

And then there is:

(d)The scale of offending: Two of the charges are representative which occurred on multiple occasions over a three year period. There is a second victim.

[22]   I accept the Crown’s submission that your offending falls into the second band of unlawful sexual connection offending as identified by the Court of Appeal in its guideline judgment.4 It is not disputed otherwise by your counsel. This categorisation, described as “appropriate for cases of relatively moderate seriousness” which involves the presence of two or three factors, increases culpability to a moderate degree.5 Taking into account the representative charge of indecent assault on the same victim and the indecent assault on the earlier victim in 1985, I assess your overall culpability to be reflected by a starting point of eight years’ imprisonment.

Aggravating features relating to the offender

[23]   You have a significant history of sexual offending. While that relates to later offending for which convictions were entered prior to the disclosure of the offending presently before the Court, I am required to take all circumstances into account in imposing a suitable sentence, including circumstances arising after the offence was committed.6 An uplift of two years is appropriate in recognition of your serial offending and the related risk you therefore present to the community.

4      At [113]-[117].

5 At [117].

6      Katipa v R [2016] NZCA 441.

Mitigating features relevant to the offender.

[24]   The present offending would not have come to light but for your self-reporting. That feature is required to be reflected in a substantial discount. The Crown has acknowledged the offending in this case would have remained undetected had you not made your disclosure, and that you are entitled to a significant discount.

[25]   Various levels of credit have been extended to offenders for this aspect. In your case, the discount to be  applied  must  be  tempered  by the  observations  of Ms Neame, who described you as presenting with a “candid lack of remorse or guilt, and at times [that you] appeared to glorify [in your] lack of remorse”. The ordinary motivation for disclosure, which usually involves guilt and remorse, appears to be absent in your case.

[26]   I note you told Dr Miller that you thought this offending would likely eventually emerge and you wanted to “get it off your chest and start with a clean slate”. Taking into account the overall effect of the reduction in your sentence for disclosure and plea, and the need for a finite sentence to still adequately reflect the seriousness of your offending, I would allow a 25 per cent discount.7

[27]   In the ordinary way, with you having pleaded guilty at the first opportunity, you are entitled to be extended the usual 25 per cent discount. That results in an end finite sentence of five years and seven months’ imprisonment. It is now necessary for me to turn to the issue of preventive detention.

Preventive detention

[28]   You are eligible to be sentenced to preventive detention on the representative charge of sexual violation by unlawful sexual connection.8 You are not eligible for that sentence in respect of the 1985 offence as you were aged under 25 years, which was a requirement at that time. I also do not consider you to be eligible to be sentenced to an indeterminate sentence on the representative charge of indecent assault on a girl under 12 in relation to the offending in the 1990s.

7      R v Sandray CA146/99, 29 July 1999; D v Police (2000) 17 CRNZ 454 (CA).

8      Criminal Justice Act 1985, s 75(1)(a).

[29]   Your eligibility for preventive detention on that charge was dependent on that offending having occurred after the occasion on which you were convicted of another specified offence. A Court cannot impose on an offender a penalty that could not have been imposed on him at the date he committed the offence. Because of the way the threshold for preventive detention was formulated at that time for specified offences other than sexual violation, you were not at that time eligible to be sentenced to preventive detention on the indecent assault charge.9

[30]   However, as I earlier observed, you are eligible for preventive detention on the representative charge of unlawful sexual connection. The question that arises in relation to that sexual violation offending is whether it is appropriate to impose another sentence of preventive detention.

[31]   Standing alone without regard to your custodial background, I do not consider there could be any real challenge that you satisfy the statutory criteria for a sentence of preventive detention.10 Because of the pattern of the serious offending disclosed by your history, the seriousness of harm to the community caused by such offending, the health assessors reports which conclude that you are at high risk of offending both sexually and violently, and the apparent failure of earlier rehabilitation programmes to address the causes of your offending, the criteria for such a sentence is clearly made out. The question for me is whether it would be appropriate to exercise my discretion in favour of a further sentence of preventive detention rather than in favour of a finite sentence.

[32]   I acknowledge the issue of whether or not to impose such a sentence must be determined on a principled basis. The practical utility of the sentence is not the determining factor. However, in fixing the appropriate sentence for the present offending, I am obliged to take into account the principles of totality and proportionality.11

9      Katipa v R, above n 5, at [16]; Mist v R [2005] NZSC 77.

10     Sentencing Act 2002, s 87(2).

11     T (CA43/2013) v R [2013] NZCA 497 at [26].

[33]   Having been the subject of a minimum non-parole period of eight years, you first became eligible for parole in July 2015. You have completed a further period of almost two and a half years’ imprisonment after the expiration of the minimum term of imprisonment imposed as part of your current sentence of preventive detention. That period cannot be counted as time served in relation to any further minimum non- parole period.12

[34]   Were I to sentence you to preventive detention, I would be required to impose a minimum non-parole period of at least five years.13 The Crown in its submissions has correctly identified that I must consider the question of whether, had you been for sentence in 2008 on all the offending, would a minimum non-parole period of 13 years or more have been likely? In that regard I note the additional two and a half years that have passed since you became eligible for parole after completing the eight year minimum period of imprisonment.

[35]   In T (CA43/2013) v R, the Court of Appeal considered a situation akin to yours. In that case the offender had in 2002 been sentenced to preventive detention with a minimum period of imprisonment of 10 years. The sentencing Court imposed a second sentence of preventive detention with a minimum non-parole period of seven years. The Court of Appeal considered the offender had effectively received a minimum term of 17 years’ imprisonment for his total offending and concluded that had he been for sentence on all charges at the time preventive detention was imposed in 2002, the Court was unlikely to have ordered a minimum term of more than 13 years imprisonment. It was noted the offender’s voluntary disclosure of his further offending occurred after he had served most of his minimum term, and that the disclosed offending had occurred prior to the 2002 offending.

[36]   In your case, Mr Gay, you disclosed your offending after the expiry of the eight year minimum non-parole period and after having served almost two and a half further years in prison. The Court of Appeal in the earlier case concluded that a second sentence of preventive detention had produced an unjust and disproportionate result because of the consequential additional minimum term of imprisonment that was

12     T (CA43/2013) v R [2013] NZCA 497.

13     Sentencing Act 2002, s 89(1).

imposed. It concluded the only means by which a just and proportionate sentence could be achieved in that case was through the imposition of a determinate sentence. That view was not changed by the offender in that case having failed to successfully complete a previous Kia Marama treatment programme, as is the case with you. Similarly, in the previous case the fresh charges represented the most serious offending, as they do in your case, Mr Gay.

[37]   The Crown have made submissions that your situation can be distinguished from T (CA42/2013) v R because of the enduring high risk of reoffending that you present and the lack of progress you have made since the sentence of preventive detention was imposed. It was noted that you have been declined parole twice on the merits, although it is acknowledged that, in June last year, the Parole Board reported that in the last year you have demonstrated a marked improvement in your attitude and motivation.

[38]   Your current presentation is clearly a central factor which I must take into account. However, the Court of Appeal in the earlier case emphasised that totality principles are particularly important where the sentence relates to activity that occurred before other offending in respect of which an offender has already been sentenced.14 In such circumstances the Court is required to ensure the sentence is not disproportionately severe having regard to the totality of the offending. The Court of Appeal further noted that, under s 8(b) of the Sentencing Act, the Court is required to take into account any particular circumstances of the offender that could render an otherwise appropriate sentence disproportionately severe. In that case as with the present, such a circumstance would include the fact the offender has already served a minimum term of imprisonment.15

[39]   The Crown accept that had you been before the Court in 2008 for sentencing which included these additional charges it would have been unlikely that a minimum period much beyond 10 years would have been imposed. Notwithstanding that concession, the Crown has not resiled from its submission that the ultimate consideration is one of protection of the community and that a further sentence of

14 At [32].

15 At [32].

preventive detention is appropriate. The difficulty I have with that submission is that, as observed by the Court of Appeal in T (CA43/2013) v R, the current sentence of preventive detention is already meeting that objective.16

[40]   In my assessment, the imposition of a sentence of preventive detention with a mandatory minimum non-parole period of five years’ imprisonment would be disproportionately severe given the overall length of the minimum term you have already served.

[41]   However, the nature of the harm you present to the community and the fact you remain at high risk of reoffending must be recognised. That concern can primarily and adequately be met by the existing sentence of preventive detention. The parole authorities have the ability to require you to continue serving your present sentence of preventive detention until they are satisfied you no longer pose a risk to the community. A second sentence of preventive detention is not required to achieve that result.17

[42]   However, I consider a minimum period of imprisonment should be imposed on the finite sentence for your offending between 1995 and 1998. Under the legislation that applied at that time the Court may impose a minimum period of imprisonment for a serious violent offence, which your sexual violation offending represents, if satisfied the circumstance of the offence take it out of the ordinary range of offending of the particular kind, although the circumstances need not be exceptional.18

[43]   The charge is one of sexual violation by unlawful sexual connection. For those of us regularly engaged in the Court’s criminal jurisdiction, one can become inured to the circumstances of serious sexual offending. However, in my view, the repeated sexual violation of a child in her own home, involving the digital penetration of her vagina, over the period of some three years as she grew from nine years of age to a 12 year old can be considered outside the ordinary range of offence of its type. It is to be noted the statute specifically states the circumstances need not be exceptional.

16 At [34].

17 At [34].

18     Criminal Justice Act 1985, s 80(4), (5) and (5A).

Result

[44]   In summary therefore, I do not consider it is appropriate to impose a second concurrent sentence of preventive detention. The present sentence of preventive detention, the management of which will now be further informed by the information gathered by this proceeding would result in an effective sentence that would be disproportionately severe. A finite sentence will be imposed.

[45]Mr Gay, will you now please stand.

[46]   On the lead representative charge of sexual violation by unlawful sexual connection, you are sentenced to five years and seven months’ imprisonment. On that charge there will be an order that you serve a minimum period of imprisonment of three years. Having made that order, I observe that the management of your existing sentence of preventive detention will determine your future custodial status.

[47]   On the representative charge of indecent assault of a girl under 12 years, you are sentenced to a concurrent sentence of imprisonment of three years.

[48]   On the single charge of indecent assault on a girl between the ages of 12 to 16 years, you are sentenced to a concurrent term of two years’ imprisonment.

Child Sex Offender Register

[49]   Because I am imposing a sentence of imprisonment on you today for a qualifying offence under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, you are a registrable offender under this legislation. This means that your name and information relevant to you and your offending will be placed on the Child Sex Offender Register. It also means you have initial and ongoing reporting obligations under the Act. It is an offence to fail to comply with your reporting obligations without reasonable excuse, or to provide false or misleading information. It is also an offence to apply to register a change of your name without first having obtained the written approval of the Commissioner of Police.

[50]   In your case, your reporting obligations begin when you cease to be in custody. As the conviction involves a Class 3 offence under the Act, you will remain on the register and will have to comply with reporting obligations for the remainder of your life.

[51]   You will be given written notice of your reporting obligations and the penalties for failing to comply with these obligations.

[52]You may stand down.

Solicitors:

Raymond Donnelly & Co, Christchurch Michael Starling Barrister, Christchurch