R v Hall

[2014] NZHC 3097

NOTE: ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PURSUANT TO S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-070-004682 [2014] NZHC 3097

THE QUEEN

v

TREVOR RICHARD HALL

Hearing:	5 December 2014
Appearances:	S A Christensen for the Crown T R Bayley and A C Balme for the Defendant
Judgment:	5 December 2014

SENTENCING REMARKS OF WOOLFORD J

Solicitors:           Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

Holland Beckett, Tauranga

Counsel:            A C Balme, Barrister, Tauranga

R v TREVOR RICHARD HALL [2014] NZHC 3097 [5 December 2014]

Introduction

[1]      Trevor Richard Hall, on 1 August 2014 you pleaded guilty to 11 charges of sexual and violent offending against two young adults and a child.  You now appear for sentence.  The Crown has made an application for preventive detention, although it concedes its imposition is finely balanced in this case.

Factual background

[2]      You pleaded guilty to two charges of sexual violation by unlawful sexual connection, one charge of assault on a child, three charges of doing an indecent act with intent to insult or offend, three charges of doing an indecency with a girl aged between 12 and 16 years, and two charges of attempted sexual violation.  Rape and unlawful sexual connection carry a maximum penalty of 20 years imprisonment.

[3]      Your offending dates back to 1996 and spans 14 years.   There are three complainants and three distinct episodes of offending.  Each of the victims is present today.   Two of those victims have read out their victim impact statements to the Court.

[4]      The first complainant, S, was in your care for a weekend sometime in 1996. At the time you were 44 years old and S was a young boy aged six or seven.  He is […]. At night time you told S it was time for a shower.  You took off his clothes and you both got into the shower.  You suggested to S that they play a game where you would try and fit your penis into his mouth.  You told him that if he did not play he would not get any dinner. You then inserted your erect penis into S’s mouth and then thrust back and forth for several minutes before pulling out and telling S “you lose because you didn’t get me to finish”.

[5]      Later that night you told S he was to be punished.  You instructed S to take off his pants and to get on the end of the bed on his hands and knees. You proceeded to anally penetrate S for what he remembers to be approximately 20 minutes.  After the event you told S that he must not tell anyone about what you had done.

[6]      The next day you had a visitor at your house.   S asked the visitor what it meant  when  someone  puts  their  penis  into  your  mouth.    You  brushed  off  the question, suggesting to the visitor that S must have seen something on television. After the visitor left, you became enraged and struck S in the face with the back of your hand and said “I told you not to say anything”.

[7]      In his statement to this Court S tells of the pain you caused him.  He recalls the tearing sensation from the violation.  He recalls seeing blood fall onto the towel you placed under him.  He still remembers feeling sore the next day.  He states that he has unspecified medical issues with the area since the attack.

[8]      Since the offending S distrusts adult males and has resigned from two jobs when he was unable to cope working in close proximity with other adult males.  He tells of nightmares of the offending that he has three or four nights a week, and has had recurring panic attacks since he was 11 years old.  It is understandable that he struggles for words to describe the anger he feels towards you.

[9]      The second complainant, C, was in your care for a period in January to May

2005.  At the time she was 13 or 14 years old.  On a number of occasions in January you woke C up in the night with your erect penis near her face.  You asked her to touch it.  She repeatedly refused.

[10]     Between January and May 2005 you continued to offend against C.   You would touch her about the breasts or grab her buttocks.  Sometimes when she was taking a shower or using the toilet, you would enter the bathroom and remain there.

[11]     On one occasion you woke C up and told her you had something to show her. You placed your erect penis near her face and instructed her to grab your testicles. Next you placed her hand on your penis and moved it up and down.  You moved her into a position on her back which led her to believe you were about to insert your penis into her vagina.   You were disturbed by the rustling of another person in a nearby room and pulled away from C. This was the first instance of attempted rape.

[12]     Sometime between April 2008 and April 2009 you offended against C again. This time she was 17 years old.  C was in your care for a length of period in that time.   She was woken one night by you thrusting your erect penis into her face, touching  her  face  and  lips  with  it.    C  kept  her  mouth  shut,  preventing  any penetration, until you ceased and walked away.   This was the second instance of attempted rape.  A few days later, when C was about to leave your house, you lay naked on your bed with your erect penis exposed and pleaded with her to stay, and told her you wanted to have sex with her.  C left your house immediately.

[13]     C tells of the impact your offending has had in her victim impact statement. She says the emotional effect of your offending has been huge.  As a teenager she became dependant on alcohol and drugs and developed an anger management problem.  She tried to kill herself sometime when she was 15 or 16.  She has no trust in males.   She attributes all of these things to your offending and the emotional impact it had on her.

[14]     Finally, the third complainant, L, came to live with you sometime in 2010 when she was 16 years old.  […]. After a month you began to walk around the house naked.  After a discussion over rent that turned heated you removed your penis from your pants and exposed yourself to L.   You asked her “does this make you feel uncomfortable”?  She replied that it did and turned away. You then walked away.

[15]     Since the offending L says that she has real issues with trust and with being around older men.  She says she was diagnosed with Post Traumatic Stress Disorder and suffers from high anxiety. Her self-esteem and self-worth has plummeted.   It clearly has had a strong negative impact on her mental health.

Previous conviction history

[16]     Mr Hall, you have eight previous convictions registered in New Zealand and fifteen registered in the Toowoomba District Court, Queensland, Australia.1    As to the New Zealand convictions, four are for minor traffic offences and four are for

doing an indecent act upon a girl under 12 years of age.  The latter relate to recent

1      The facts of these charges are summarised by Judge Rollo for the purposes of a propensity ruling in R v Hall DC Tauranga CRI-2012-087-000520, 13 August 2012.

offending in late 2011 and in 2012.  The complainant, a seven year old girl, was the daughter of your neighbour.  You would look after the daughter while the neighbour worked.  Although it is not clear, it appears you exposed yourself to the victim and compelled her to touch your penis.  Later you kissed her and told her that you were in love. You were sentenced to one’s year home detention.

[17]     The Australian offending is of a similar vein.  Between March and October

1999 you offended against a four year old girl once and a nine year old boy on at least 14 different occasions.  The boy and girl were the children of your […].  At times you were responsible for their day-to-day care.  You exposed your penis to the young girl on one occasion.  As to the boy, you exposed your penis to him, touched his penis, and sucked on his penis on a number of different occasions when you went to put him to bed.

[18]     You pleaded guilty to this offending in 2000 and you were sentenced to three and a half years imprisonment.2    In sentencing you, Judge Forno QC stated that it was one of the worst breaches of trust he had ever seen.   Having regard to what appeared to be your previous good character and lack of conviction history, the Judge recommended that you serve only part of that sentence.   Pursuant to that direction you were released and deported back to New Zealand in late 2000.

Pre-sentence report

[19]     There  is  a  pre-sentence  report  prepared  for  your  initial  hearing  at  the Tauranga District Court.  The writer correctly identifies that you have an entrenched propensity to sexually offend against young children in your care.  You are assessed as having a high risk of re-offending in a similar manner upon release.

[20]     You have been married.   Your second wife, whom you married upon your return to New Zealand, was aware of your convictions and helped develop a safety plan to reduce your risk of re-offending.  It is apparent that plan did not work.  Your

wife passed away in 2007 and you are currently single.

2      R v Hall DC Toowoomba 00/78, 16 March 2000.

[21]     You are 62 years old, unemployed, and in ill health.  I have a health report here that says you suffer from severe chronic obstructive pulmonary disease (emphysema).  Your lung function in 2012 was similar to that of a 100 year old man, and you could only walk up to 10 metres each day.  It is apparent your need for daily care is one reason why you were sentenced to home detention rather than imprisonment for your 2011 and 2012 offending.

[22]     The report writer discussed with you the possibility of a Special Treatment Unit Programme, and you stated you are willing to participate in such a programme. You expressed remorse, but showed limited insight of the impact your behaviour has had on your victims.

Preventive detention

[23]     Mr Hall, in sentencing you today I will first consider what finite sentence would be appropriate for the totality of your offending, and then have regard to whether a sentence of preventive detention should be imposed instead.  In doing so I will have regard to the two health reports prepared for that purpose.

[24]     The purposes and principles of sentencing are set out in the Sentencing Act

2002.   Those especially relevant today include the need to protect the community from you and your offending, to denounce and deter it, and to hold you accountable for the untold harm you have done to […], and the second complainant.  In doing so I will have regard to the need to provide for your rehabilitation and the impact that your age and ill health will have on the assessment.

The finite sentence

[25]     I  have  received  submissions  from  the  Crown  and  defence  as  to  the appropriate finite sentence.  The Crown submits that the sexual violations against S should be considered the lead offending and an appropriate start point is in between

12 and 14 years imprisonment (the lower to middle of rape band 3 of R v AM).3   It is

submitted that an uplift of two to three years imprisonment is then warranted to reflect the additional offending against C and L and in consideration of totality,

3      R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [105].

leaving  a start  point  of  14  to  17  years  imprisonment.    From  there  an  uplift  is suggested for your previous convictions, both in Australia and New Zealand.

[26]     Defence counsel submit that the offending against S falls at the mid to upper end of rape band two of R v AM, which encompasses start points of seven to 13 years imprisonment.  A start point of 10 years imprisonment is submitted as appropriate. As to the additional offending, counsel agree with the Crown that an uplift of two to three years imprisonment is necessary to reflect that offending.  It is accepted that some uplift may apply for your previous conviction history.

[27]     The offending against S occurred eighteen years ago.  Despite that, the Court of Appeal has held that the guidelines in R v AM apply to relevant offending in that time period.4     Rape band 2 covers offending that involves two to three factors increasing culpability to a moderate degree, whereas rape band 3 encompasses offending that involves two or more seriously aggravating factors or more than three moderately aggravating factors.

[28]     The aggravating features in your case include the vulnerability of S, who was six or seven years old at the time and under your care.  The complainant is […] and you abused the trust placed in you by […].  There was also degree of premeditation to the second violation.  Counsel also point to the assault that occurred the next day as suggestive of violence, although I do not place too much on that fact, as well as the great harm evident from the victim impact statement.  There is no doubt that this episode will stay with S for the rest of his life.

[29]     I note, however, that the offending against S was limited to one episode.  It did not reoccur. There was also no violence beyond that inherent in the offence. You did not, for instance, threaten to hurt S if he did not comply.  Nor was it accompanied by any element of grooming.  In this way your offending differs from the 14 year start point imposed in R v S, in which the offending against a seven to 10 year old girl occurred over a three year period and came with threats to kill if she did not

comply.5

[30]     The Crown considers your case is comparable to that in R v Roberts, in which a start point of 14 years imprisonment was not disturbed on appeal.  Yet as rightly pointed  out  by  your  defence  counsel  that  case  is  significantly  different  in  that Roberts involved a brutal rape of a three year old complainant, the employment of additional serious violence during the sexual assaults, and evidence that the victim

had suffered severe damage to the anus and genitals.6   However, I note R v Roberts

was decided before the maximum penalty of imprisonment for rape was increased from 14 to 20 years, and in this sense the end result reached is not directly useful in setting the start point in the present case.

[31]     Having regard to the comparable cases cited in R v AM I consider that your offending against S falls within the low end of band 3 and attracts a start point of twelve years imprisonment.  That start point accounts for the gross breach of trust, the vulnerability of the victim, and the significant emotional harm caused to him, while keeping in perspective that the offending did not reoccur nor was accompanied by gratuitous violence or grooming behaviour.

[32]     I now have regard to your other offending against C and L.  The most serious of those charges is the two for attempted sexual connection with C in 2005 and 2009. There is no tariff decision for attempted rape.   Much will depend on the circumstances.   Defence counsel cites a comparable case, R v Falaoa, in which a

sentence of four years imprisonment was upheld on appeal.7

[33]     It is clear that, in other circumstances, your repeated offending against C over a lengthy period of years, C’s vulnerability and the impact the offending on C and L, would typically attract a substantial period of imprisonment by itself.  However I am satisfied that when regard is had to totality it is not appropriate to impose cumulative sentences for the offending against C and L.   I am satisfied that an uplift of three years imprisonment, bringing your sentence to 15 years imprisonment, is sufficient to account for this offending.

[34]     Although I could impose an uplift for your previous convictions, the Crown has not pushed for it, and I have chosen not to do so in this case.   This is partly because the most serious aspects of the index offending occurred well before the offending for which you were convicted, and so the justification for uplifting the sentence does not clearly apply.  In any event, standing back, I consider an end start point of 15 years imprisonment is sufficient to hold you accountable for the great harm that you have caused to […], and the second complainant.

[35]     I now turn to consider mitigating factors personal to you.  You are 62 years old and suffer from a serious lung disease.  According to your doctor you cannot walk more than ten metres per day and can climb no more than six stairs.  It takes up to an hour for you to eat a plate of food. You report that your health has deteriorated. Although old age and ill health may militate against the imposition of a lengthy sentence, as each year served leaves the prisoner concerned with proportionately less

life to live, any discount must be modest.8   I propose to reduce your sentence by one

year’s imprisonment to reflect this fact.   In addition, although there is some procedural history to this case, you are entitled to 20 per cent discount for your guilty pleas.  I do not perceive any substantial degree of remorse on your behalf, and I decline to reduce to your sentence further in that regard.

[36]     Accordingly, if I were to impose a finite sentence, I would impose a sentence of 11 years three months imprisonment.  It is not in doubt that your offending calls for the imposition of a minimum period of imprisonment.  However, having regard to your old age and ill health, and the impact that consideration has on the likelihood of you reoffending in the future, I decline to impose the maximum two thirds sought by the Crown.   Instead I would impose a minimum period of six years and six months imprisonment.

Risk assessment

[37]     I turn to the risk assessment for determining whether to impose preventive detention.   The purpose  of a  sentence of preventive detention  is  to  protect  the

8      Hastie v R [2011] NZCA 498 at [40].

community from those who pose a significant and ongoing risk.9   To impose it there must be a significant and ongoing risk of serious harm.10    I note that some of your offending occurred when the test under the Criminal Justice Act 1985 applied, but since your offending also occurred after the new test in the Sentencing Act 2002

came into force I will give you the benefit and apply the latter in your case.

[38]     In doing so I must have regard to the two health assessor reports prepared for this  purpose.  The  first  is  from  Kirk  Stenhouse,  registered  clinical  psychologist. Mr Stenhouse’s  comprehensive  report  details  your personal  history and  provides some context to your offending.  It is clear, for example, that the breakdown of your first marriage precipitated your offending against S.

[39]     Mr Stenhouse assesses you to fall within the high risk category on the ASRS scale.   Research has found approximately 46 per cent of persons in this category reoffend within five years of release.  You are placed in the moderate risk group on the STABLE-2007 scale.   He correctly notes that while your age would normally lower the risk you will reoffend, in this case your latest sexual offence occurred in

2012, and therefore it is not an overwhelmingly mitigating factor.

[40]     Overall you are assessed as at a high risk of further sexual offending, most likely against pre-pubescent children who are known to you.  It is noted, however, that you have not previously completed treatment beyond 12 low-intensity group sessions in Australia.

[41]     The second report is from Nick Lascelles, registered clinical psychologist. He notes that the full reasons for your offending remain somewhat obscure, and despite suggesting a few possible reasons there is nothing concrete beyond your unquestioned sexual interest in children.  The report notes that you had some brief sexual offence specific intervention in 2013, in response to the convictions entered against you for the 2011/2012 offending, but the intervention was at a level commensurate with a lower risk offender without pronounced and persistent sexual

deviance. You had some positive response to that treatment.

9      Sentencing Act 2002, s 87(1).

10     R v Parahi [2005] 3 NZLR 356, (2005) 21 CRNZ 754 (CA) at [85].

[42]     Mr Lascelles places you in the moderate-high risk category for being charged or  convicted  of  another  sexual  offence,  employing  the  Static-99R  risk  tool. However, he comments that assessment may underestimate your risk of reoffending, because you show signs of continuing to reoffend at your age in circumstances where you were suffering from a chronic health condition.

[43]     Overall you are assessed as being at moderate-high risk of further sexual offending within the next two years.  Mr Lascelles chose this time period because of the  difficulty  in  assessing  your  risk  at  an  indeterminate  time  in  the  future, particularly  given  your  deteriorating  health  status.    That  sexual  offending,  if  it occurs, is likely to be similar to the lower-level offending committed against C and L, due to your health condition restricting your physical capacity to reoffend in a more serious manner.  You are assessed as being able to be managed effectively in the community whilst subject to parole.

Discussion

[44]     I turn now to submissions of counsel on the propriety of preventive detention in your case. The Crown emphasises your pattern of serious sexual offending against children over a 15 year period, and your assessed risk of committing serious offences in the future.

[45]     I have no doubt that your offending is evidence of persistent and knowing sexual abuse of children and young adults in circumstances where those children and young adults are vulnerable by reason of being in your care.   The victim impact statements make it clear that your offending has caused great harm to them and has cast a long and permanent shadow over their lives.  In addition, I am concerned that you do not appear to be aware of the seriousness of your actions, nor have you taken full responsibility for the consequences of those actions. Your attempt to curtail your offending after returning from Australia clearly did not work.

[46]     As to your chance of offending at the end of your finite sentence, the Crown submits that your modus operandi is one of taking advantage of opportunities in the home in which you reside, gaining the trust of victims and then abusing them when they are vulnerable, such as when they are asleep.  Mr Lascelles’ comment that it is

possible that your access to victims may be enhanced by your health condition is also relied upon.   So is the comment that while your advanced age may reduce sexual drive, there can be other motives for sexual offending, and male offenders do not need to gain an erection to sexually offend.

[47]     It is, however, conceded that the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society may apply in your case. Relevant to this principle is Mr Lascelles’ opinion that your risk of reoffending is manageable in the community subject to very close supervision that would prevent you from gaining access to children.

[48]     Your defence counsel also emphasises that fact.   Counsel also submits that you have not been subject to a lengthy term of imprisonment before as a final warning, nor have you previously participated in an intensive sex offender treatment programme.  The latter factor is submitted to be determinative against a sentence of preventive detention.

[49]     Although I do not see the absence of treatment in the same determinative manner, I agree with the general submission that a sentence of preventive detention is inappropriate in this case.  I come to this come to this conclusion primarily in light of  the  principle  that  a  lengthy determinate  sentence  is  preferable  if  it  provides adequate protection for the community.  I note your old age and ill health.  You will be a very old man indeed if you are released at the end of your finite sentence.  Your health is deteriorating and your illness will only get worse.

[50]     While I do not place much weight on your age, given your most recent spate of offending in 2012, I do place weight on your illness and the impact that that has on placing doubt on the risk of you reoffending at the end of your finite sentence. Although that is by no means a complete barrier to you reoffending again, I consider it significant that Mr Lascelles considered it was not possible to assess your risk beyond two years into the future.  Due regard must also be had to the fact that you have not  yet been afforded an opportunity to undergo intensive sexual offender treatment, which may well further reduce your risk.

[51]     The information available to me suggests that if you do reoffend, it will not be in the same manner as the most serious offending against S, and any risk can be significantly curtailed by close supervision by those tasked with assisting you.  It is relevant that Mr Lascelles considered it would be possible to manage your risk in the community by such  means.   I also consider that the possibility of an  extended supervision order – for which you would be an excellent candidate – also weighs against the imposition of preventive detention in your case.

[52]     For those reasons I decline the application to impose a sentence of preventive detention.  Let me tell you this, Mr Hall, if you were younger and in better health, I would have imposed a sentence of preventive detention.

Result

[53]     Mr Hall, please stand.   On Counts 1 and 2, I sentence you to a term of

11 years three months imprisonment.  For the other charges I impose the following sentences, to be served concurrently:

(a)       Count 3 (assault on a child) – six months imprisonment;

(b)Counts 4, 10 and 11 (indecent act with intent to insult or offend) – one year’s imprisonment each;

(c)       Counts 5, 6, and 7 (indecency with a girl aged between 12 and 16) –

two years imprisonment each; and

(d)Counts   8    and   9    (attempted   sexual    violation)    –    four    years imprisonment each.

[54]     On Counts 1 and 2, I also impose a minimum period of imprisonment of six and a half years.

[55]     You may stand down.

……………………………….

Woolford J