R v Gotty

[2017] NZHC 1102

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-005255 [2017] NZHC 1102

THE QUEEN

v

STEPHEN MARK GOTTY

Hearing:	25 May 2017
Counsel:	NR Williams for Crown M Kan for Defendant
Judgment:	25 May 2017

SENTENCING NOTES OF DOWNS J

Solicitors:

Michael Kan Law Ltd, Auckland.

Meredith Connell, Auckland.

R v GOTTY [2017] NZHC 1102 [25 May 2017]

Introduction

[1]      Mr Gotty, you were found guilty by a District Court Judge of two offences of sexual violation by unlawful sexual connection.   As you probably know, each is punishable by a maximum term of 20 years’ imprisonment.  You are for sentence in this Court because the District Court concluded preventive detention may be an appropriate sentence.  Preventive detention is an indefinite sentence.

[2]      You were warned in the District Court of the consequences of conviction for a third strike offence.  I will not repeat that warning.  I will say this though: these offences comprise your second strike, and you remain subject to the three strikes law.

The offending

[3]      On 27 January last year you shared a prison cell with the 19 year old victim. More about why you  were in prison later.   Unlike you, the victim had limited experience of prison life.   You and he knew each other, or at least knew of each other. You encouraged the victim to move into your cell.  He did.

[4]      That evening after lock down, you talked to the victim about—as he put it in his evidence—“real twisted and sexual stuff”.  You moved your mattress from the top bunk and placed it next to the lower bunk.  You ran your hands up the victim’s leg and touched his penis.  You masturbated him.  You told the victim you wanted to perform oral sex.   He was frightened because you had earlier told him you beat people up.  You performed oral sex on the victim.  You then made him do the same to you.  You forcefully held his head throughout.  And, you told him he was now your “bitch”.

[5]      The victim had a shower immediately afterwards.  He felt dirty.  He was too afraid to use the emergency button in the cell because he was worried there may be a long delay before help could arrive.  He faked stomach pain, and so you called for help.  Once out of the cell, the victim told prison staff he had been the victim of a sexual assault.  You denied the offending.  You continue to do so.  The case went to

trial before a Judge sitting without a jury.   Judge Field found you guilty of both offences.

Victim impact

[6]      Although you deny it, your offending has caused the victim significant harm. He suffers anxiety and an inability to concentrate.   He is on medication, but for which he would feel suicidal.   Sadly, he feels ashamed of what happened even though he did nothing wrong. That is not uncommon in cases of sexual offending.  It is one reason Courts treat sexual cases so seriously.

Starting point

[7]      There was disagreement between the prosecution and your lawyer Mr Kan as to  the  starting  point.     Mr  Kan  had  advanced  a  range  of  five  to  six  years’ imprisonment.  The Crown advanced a range of seven to eight years’ imprisonment. The difference lies in whether your case falls into what is loosely described as a “rape” band.  As you will have heard me explain to the lawyers, it is clear your case does because this sentencing band applies not merely to an offence of rape, but also to sexual violation by unlawful sexual connection when there is penile penetration of

the mouth.1  Your lawyer Mr Kan now accepts as much.

[8]      Your offending falls at the top of the first band, or towards the bottom of the second.   This is because it is moderately serious relative to other cases of sexual violation.  It involved six aggravating factors:

(a)       An element of premeditation.   You encouraged the victim to share your cell on the day of the offending.

(b)      An implicit threat of violence.

1      R v AM (CA27/2009) [2010] NZCA 114 at [65]–[76], [2010] 2 NZLR 750, (2010) 24 CRNZ

540.

(c)      A vulnerable victim in that you were much larger than him—and there was nowhere he could go.  You are also older than the victim.  And, a much more experienced inmate.

(d)      Significant victim harm, which I have already mentioned.

(e)      The   presence   of   another   instance   of   sexual   violation,   which aggravates the second offence in which you made him perform oral sex on you.

(f)      A custodial or prison setting.  As observed, the victim could not go anywhere.  And, it is well known “narking” is a serious taboo in the prison context and criminal underworld.   It carries risk of harm, including retribution.

[9]      All of this implies an eight year starting point.

[10]     You have an extensive list of convictions.  You were in prison because you committed an unrelated sexual offence, and you have also committed rape.  I return to this topic shortly.  It is sufficient to observe a significant uplift is required because of your history of sexual offending.   I settle upon 12 months.   That produces an adjusted starting point of nine years’ imprisonment.

Mitigating features

[11]     You are 57.

[12]     Although you describe your childhood as normal, it was not.  You witnessed and experienced extreme violence.  And sexual abuse.   You have no relevant qualifications and have worked only intermittently, meaning on and off, as a labourer and shearer.  You have an adult son who lives in Australia.  You “think” you have a grandson.

[13]     Sadly, there are no mitigating features as such.

Minimum period but for the application of a second strike

[14]     Your offences are stage-two offences.  As I have said to you, they comprise a second strike.   It follows if a determinate sentence is imposed, you would not be eligible for parole.2     Put more simply still, you would need to serve the entire sentence.

[15]     The law requires me to state, with reasons, what the minimum period of imprisonment would have been but for parole ineligibility.3

[16]     A minimum  period  of  imprisonment  is  applicable  when  one-third  parole eligibility would not be sufficient to hold the offender accountable, denounce and deter his or her offending, and protect the community from that individual.4   But for parole ineligibility, I would have ordered a minimum period of six years, being the full two-thirds of a nine-year sentence.

[17]     Your offending is serious.  It calls for particular denunciation and deterrence given your record, and because you committed these offences in prison.  Prisoners should be safe from other prisoners.   A clear message must be sent to the prison community: those who commit offences against fellow inmates will face significant additional penalties.

[18]     The community must also be protected from you.  But to be clear, I consider a  six-year  minimum  period  would  have  been  reached  without  reference  to community protection.

[19]     To recapitulate, your offending calls for an adjusted starting point of nine years’ imprisonment.  Regrettably, there are no mitigating features.  But for parole ineligibility, your minimum period would have been six years.  Which brings me to

the question of preventive detention.

2      Sentencing Act 2002, s 86C.

3      Section 86C(6).

4      Section 86.

Preventive detention

[20]     Preventive  detention  may  be  imposed  when  a  person  is  convicted  of  a qualifying offence, was 18 years or over at the time that offence was committed, and the Court is satisfied the offender is likely to commit a qualifying offence after serving a finite sentence.  There is no dispute the first two of these conditions are met.

[21]     The question is whether you are likely to commit a qualifying violent or sexual offence on release.  Even then a discretion remains.  Preventive detention is not a sentence of last resort, but it is exceptional.  A long but determinate sentence is preferable when it would adequately protect the community.

[22]     You have no fewer than 143 earlier convictions.  You have been committing offences since the age of 17.  You have a disposition for dishonesty, especially theft. On nine occasions you possessed weapons.   You have committed six species of assault, including male assaults female, and you once injured with intent to injure. You have received 23 sentences of imprisonment.  But most have been for periods of less than two years.  Your pattern of imprisonment highlights the relatively low level of much of your offending.  However, you have also committed serious offences.

[23]     In October 1996 you committed rape.  You were then 37.  Your victim was

17. You had gone to visit your ex-partner. You were greeted by the victim, who said your partner was out of town.  You asked to stay the night.  Your victim kindly let you sleep in the lounge.  Overnight, you went into her bed and removed her clothing. She resisted. You grabbed her wrists and applied pressure to her throat. You told her “no” meant “yes”.  Actually, it’s the other way around.  You had sexual intercourse with the victim for approximately two hours.   When you fell asleep, she alerted Police.    You  said  the  victim  was  initially  a  willing  participant  who  only  later withdrew consent.

[24]     This offending resulted in a seven  year prison  sentence.   It appears you pleaded guilty.   I note, however, you now deny the offending.   You told the psychologist  who  interviewed  you  (in  relation  to  the  possibility  of  preventive

detention) your victim consented, and she was forced to report the incident as rape as her father was upset she had engaged in sexual intercourse.

[25]     You were in prison for sexual offending when  you committed these two offences of sexual violation by unlawful sexual connection.  In November 2015 you indecently assaulted a victim described as a 17 year old transgender male.  You and he were strangers.  You pulled your pants down and forced the victim to touch your penis.   You pulled his head toward your penis, presumably in the expectation he would perform oral sex.   He fled and called the Police.   Again, it appears you pleaded guilty.  You say you cannot recall the offending as you were then high on morphine.

[26]     One other offence should be mentioned.  In 2008 you assaulted a stranger on a boat, punching him with a fist to the side of the head.  You had to be restrained. You asked an associate if you should kill the victim.  You said you were intoxicated and could not recall the offending.

[27]     It will be clear your offending has caused serious harm to the community.

Risk of re-offending

[28]     Your pre-sentence report describes a significant likelihood of re-offending. That assessment is based on your extensive criminal history, variety of offending and lack of rehabilitative engagement.  I pause to note you described the victim to the writer of the pre-sentence report as an “arsehole” who was motivated to make a false complaint in the hope of receiving ACC compensation.

[29]     Dr  Martin,  a  clinical  psychologist,  concludes  you  pose  a  “high”  risk  of violent and sexual re-offending.   Dr Goodwin, a very experienced forensic psychiatrist, considers your risk of re-offending to be “very high”.  Both experts note you have made little, if any, effort to address your criminal tendencies.  They also record  a  history  of  poor  engagement  with  alcohol  and  drug  services,  and Dr Goodwin notes a refusal to enter treatment for sexual offending.

[30]     You deny the instant offences.  And as observed, now deny committing rape. You say you cannot recall committing the indecent assault.

[31]     The mix is at best troubling.  Ordinarily, criminal offending abates—meaning slows down—with age.   Yours shows no sign of that.   On one view, it is getting worse.

[32]     Given these reports, your record and this offending, I am satisfied you are likely to commit a qualifying sexual or violent offence following release from even a lengthy finite sentence.5

Disposition

[33]     I have already discussed your offence pattern, its community harm, your tendency to commit serious future offences, and your distinct lack of rehabilitative efforts.6  This brings me to the important principle a long finite sentence is preferable when it would provide adequate community protection.7

[34]     I am satisfied a long finite sentence would not provide sufficient protection for four interrelated reasons.   First, you pose at least a high risk of re-offending. Second, you demonstrate little if any inclination for reform.  Third, you lack insight. And fourth, unlike preventive detention, a finite term offers limited incentive for reform. An exceptional sentencing response is the only responsible one.

[35]     The associated minimum period must be the longer of that reflecting the gravity of  your  offending,  or  that  required  to  protect  the  public.8      For  reasons expressed earlier, the former would be six years, the longest minimum period available for a nine-year determinate sentence.9

[36]     The  additional  period  required  for  public  protection  is  more  difficult  to quantify. And there is a danger of overreach.

5      Sentencing Act, s 87(2)(c).

6      Section 87(4)(a)–(d).

7      Section 87(4)(e).

8      Section 89(2).

9      Section 86(4).

[37]     I consider an additional three  years is called for.   Your offending is not abating.  And you have known only crime.  You will be 66 or 67 years old when the minimum term comes to an end, and one hopes, less inclined to commit serious offences.  A longer minimum period could be crushing.  But a shorter period would pose unacceptable community risk.

[38]     This means you may be released at the same time as would have been the case had I imposed a finite sentence of nine years’ imprisonment (given your parole ineligibility).  But whether that is so is not for me, but the Parole Board.

[39]     Mr Gotty, please stand:

(a)       On each charge of sexual violation by unlawful sexual connection, you are sentenced to preventive detention.

(b)      You must serve at least nine years’ imprisonment.

[40]     Thank you. You may stand down.

……………………………..

Downs J