R v Harrison HC New Plymouth CRI 2009-043-3587

[2010] NZHC 1941

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2009-043-3587

THE QUEEN

v

JOHN MATIU HARRISON

Hearing:         8 November 2010

Appearances: C E Clarke for Crown

K R Pascoe for Prisoner

Judgment:      8 November 2010

SENTENCE OF KEANE J

Solicitors:

Auld Brewer Mazengarb & McEwen for Crown

Nicholsons, New Plymouth for Prisoner

R V JOHN MATIU HARRISON HC NWP CRI 2009-043-3587 [8 November 2010]

[1]      John Harrison you appear for sentence having pleaded guilty on arraignment, on the point of trial, in respect of three representative sexual offences. Between 1

May 2003 - 31 July 2005  you sexually violated three young boys, aged  at the extremes between  four and eight years of age. In each case you penetrated their anus with your penis.

[2]      Though you disclaim remembering the details of these offences to which you have pleaded, you do not, on your counsel's advice, dispute the Crown's statement of facts on the basis of which I am invited to sentence you.

[3]      Once I have sentenced you for these three offences the Crown will offer no evidence on three other counts of sexual violation, four of assault with a weapon and one of assault on a child.

Offences

[4]      In May 2003, when you were aged 14, you moved from Taranaki to Rotorua with your mother and stepfather. Amongst your second cousins in Rotorua were your three victims, with whom you had contact perhaps four times a week. You visited them at their addresses or they visited yours. On occasions they stayed the weekend with you and your mother.

[5]      When you played with them you could become violent. You could pick them up and hold them against a wall and throw them to the floor. You could lock them in closets, sometimes for 30 minutes. It is within that climate of fear that you began sexually to abuse them.

[6]      When the first victim, X, was aged six you told him to suck your penis. He refused. You then pulled down his pants and forced your penis into his anus. This was to recur over the next two years. Sometimes you held him by the hair from behind. Sometimes you threatened him with a knife to the side of his neck.  In one instance you caused his anus to bleed. His mother noticed blood on his boxers but did not, unfortunately, take alarm.

[7]      You offended in the same way against your second victim, Y, when he was aged between four - six years. On the first occasion you took him into a bathroom and threw him into a wall so that he struck his head. You then pulled down his pants and penetrated his anus. The last time it happened he was in his bedroom asleep. You lay on him waking him. You held him down. You threatened him with a knife, as you had on three or four earlier occasions. On these occasions you left him with the fear he was going to die.

[8]      You offended in the same way against your third victim, Z, when he was aged between five - eight years. The first time you pushed his face down onto a bed, lay on top of him and pulled down his pants. He tried to roll away but could not. After you had offended against him a number of times he started to soil his pants. He

was taken by his mother to a doctor.[1]

[1] At this point I directed that Mr Harrison be taken from the Courtroom. He had become extremely agitated and disruptive and difficult for the officers to restrain. I resumed sentencing him as if he were still present in the Courtroom.

[9]     The other children too complained to their mothers of sore bottoms. Unfortunately it was then assumed that this resulted from poor hygiene. You and your mother left Rotorua in 2005. Your victims did not complain until January 2009. You denied any offending until the point of  trial. You now admit it only in a qualified way.

Victim impact

[10]     The effect on X was profound. Before you offended he had been a well adjusted, achieving well at school. He regressed badly. He got into fights. He ceased to like or trust his friends. He received counselling for violence. He never disclosed what had happened to him or why. He felt, he said, as if he were 'an idiot' and

'dumb'. He thought he was bad. Because you had threatened to kill him he remained frightened.

[11]     Your second victim Y, recalls being frightened of you and of what you did to him. The effect was, he said, that he and his brother kept a 'big secret' that affected

their entire family. His mother confirms that the effect on him was less obvious than on his brother but that he became very dependent on his father.

[12]     Your third victim, Z, like your first victim, as well as becoming scared and blocking off what you had done, also became angry, as he remains now. At the time when you were offending he used to be afraid to go home in case you were there. He too did not know how his mother would react if he told her.

Reports

[13]   Your pre-sentence report describes you as having displayed behavioural problems while at school and as leaving at the age of 14. Since then you have had a number of jobs and completed a number of courses. Presently you are in receipt of the unemployment benefit.

[14]     You have, your report says, used cannabis since the age of 14 years and alcohol since the age of 15. You are assessed to use both harmfully and to binge drink. You have taken to using methamphetamine occasionally as well as cannabis. You have an issue with gambling. You are not prepared to confront any of these issues by counselling or treatment.

[15]     Your report says that you have made numerous threats to commit suicide and disclosed that you have tried a number of times to kill yourself. Most recently, the report says, you have attempted to overdose. Earlier you attempted suicide in a quite different way. You claim to hear voices telling you to kill yourself.

[16]     Your report says that although you have pleaded to the offences you still dispute the police summary of facts. During interview you refused to discuss this offending. You claimed not to remember anything. You pleaded guilty, you said, because you wanted to take 'the deal on offer'. However, and by way of contrast, your report says, you remember everything else about your time in Rotorua.

[17]     Apart from your relatively minor previous convictions involving disorderly behaviour and alcohol, you have, as your report confirms, one of a more serious

order. On 19 July 2007 you attempted to kidnap a five year old boy here in Taranaki. He was on his way to school. On 1 April 2009, at the age of 18 years, you were sentenced to imprisonment for two years.

[18]     Your pre-sentence report concludes that you display little insight into your offending or into the factors that have had a bearing and, given the seriousness of your offending, recommends a sentence of imprisonment.

[19]     I have as well a number of other reports, most, if not all, prepared this year concerning your fitness to plead. Your counsel also relies on a report, when you were aged 12, which more directly identifies behavioural difficulties that, she submits, may have contributed to your offending.

[20]     As to the reports this year, in the main commissioned by the Court but not entirely, the first is from a psychiatrist. He concluded that you were fit to plead. However he lacked information concerning the possibility you might suffer from an intellectual disability. You had by then been assessed by a psychologist to have the cognitive capacity of a six - eight year old child.

[21]     A  second  psychiatrist  completed  a  report  going  to  that  issue.  He  too concluded that you were fit to plead though you function at the borderline of intellectual disability. He, like the earlier psychiatrist, concluded that you showed a good understanding of the issues involved in this offending, though you denied any memory of it.

[22]     A more recent psychological assessment, made to assess whether a  custodial sentence is appropriate for you, concludes also that you suffer an intellectual disability. But, even though you have shown an instinct to self harm, it does not rate you unfit to serve a sentence of imprisonment. It also assesses you to be at risk of re-offending in precisely the way for which you are for sentence today.

Purposes and principles of sentencing

[23]     In sentencing you I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, protect the community and provide for the interests of your victims. I must also, so far as it is compatible, assist you in your rehabilitation and reintegration.

[24]     I must have regard to the following sentencing principles: the gravity of your offending, the need to be consistent in sentence with other cases, the need to impose a sentence near the maximum, should that be warranted. Equally, I must take into account the contrasting principles: the need to adopt the least restrictive outcome appropriate, the need to take account of anything that would make any otherwise proper sentence disproportionately severe, and the need to recognise you in your individual context.

[25]     The sentence I must impose on you is to be assessed against the four bands of sexual violation identified by the Court of Appeal in R v AM.[2] Those in band one, the least serious category, attract starting points in the range six - eight years, those in band two seven - 13 years, those in band three 12 - 18 years and those in band four

16 - 20 years. The bands pertinent to you are bands three and four.

[2] R v AM [2010] 2 NZLR 750.

[26]     A potentially aggravating factor could be your conviction for the attempted kidnapping offence. However, that offence post-dated this offending and, as the Court of Appeal said in R v Barrett[3], stands equivocally. It is not aggravating in the way that earlier similar offending would be. Equally it would be unrealistic to ignore that offence. Its significance goes, perhaps, this distance. It establishes that this present offending is not to be regarded as isolated or atypical.

[3] R v Barrett [1999] 1 NZLR 146 (CA).

[27]     Also pertinent is your age at the date of this offending. You were 14 - 16 years of age. In Pouwhare v R[4]  the Court of Appeal held that young age can be a

mitigating factor of high, perhaps decisive, significance not circumscribed by any

outer percentage. It is not however the paramount consideration on sentence. Youth alone cannot justify radically reducing a sentence otherwise proper.

[4] Pouwhare v R [2010] NZCA 268 at [83].

[28]     Your intellectual disability can also be a mitigating factor on sentence. Again, however, the issue is, as the Court of Appeal held in R v M[5], whether diminished intellectual capacity or understanding is a material contributor. A lack of intellectual function alone can never of itself equate with a lack of moral guilt.

[5] R v M [2008] NZCA 148 at [33].

[29]     The final mitigating factor is your plea. According to R v Hessell[6] a plea on the point of trial will normally attract a ten percent reduction. The Crown accepts, however, that you pleaded at the point of trial because of a material shift in the charges to be pressed. Also a number of reports had to be obtained as to your fitness to plead and related issues. The Crown would  accept a discount of at least 20 percent. Any higher discount, the Crown says, depends on what weight I give to your acceptance of guilt.

[6] R v Hessell [2010] 2 NZLR 298.

[30]     The  final  issue  of  law  that  arises  is  as  to  whether  there  ought  to  be  a minimum term imposed under s 86(2) of the Sentencing Act 2002. A minimum term above the normal one-third minimum may be imposed if I conclude that the usual minimum is not enough to hold you accountable for your offences, to denounce your offences, to deter you and others or to protect the community.

Crown submissions

[31]     The Crown contends that your three offences lie within band four of R v M; and the starting point I ought to take should be 18 years. It contends also that, having regard  to  the  mitigating  factors  to  which  I have referred,  abstractly thus  far,  a sentence in the range nine - 13 years would be open in principle. The Crown also

contends for a half minimum term.

[32]     To establish that starting point the Crown identifies the following aggravating factors. Your offence involved actual and threatened violence and actual and threatened use of a knife. It resulted in the level of harm to your victims that are set out in the victim impact statements. It involved an abuse of trust: even allowing for the fact that you were aged between 14 - 16 years, you were still older than your cousins by a significant margin, and they were vulnerable because of their young age. Despite your intellectual disability you showed premeditation; that you had a knife a number of times is indicative. The attempted kidnapping, the Crown submits, demonstrated that this was not isolated offending. Moreover, it was repeat offending over a two year period and involved multiple victims.

[33]     The  Crown  does  acknowledge  that  it  is  mitigating  that  you  were  aged between 14 - 16, that you suffer a level of intellectual disability, and that you did plead to these offences; and as to that, as I have said, the Crown would concede significantly more than the ten percent discount Hessell makes normal. The Crown contends, therefore, as counsel has accepted, for a sentence that may differ significantly from the starting point proposed.

Defence submissions

[34]     Your counsel accepts that your offending may lie at the cusp of bands three and four, in this accepting four of the aggravating features identified by the Crown, beginning with actual and threatened violence and threatened use of the knife. Then the effect on victims, though your counsel says that this may not be able to be assessed with full accuracy. She does accept that, because of their age, their vulnerability was real. Also the fact that this offending occurred over two years.

[35]     Your counsel does not accept there was a breach of trust in the usual sense. You were aged between 14 - 16 and you had a much younger intellectual age. You are,  she  submits,  not  to  be  equated  with  an  adult  in  a  position  of  trust.  Your offending, she submits was not pre-meditated, it was opportunistic. And the kidnapping post-dated this offending. It is not truly aggravating.

[36]     As important as the starting point, your counsel says, are those factors that the Crown accepts to be mitigating; your young age at the time, your intellectual capacity and your plea. On that basis your counsel proposes a sentence in the range four - six years.

Conclusions

[37]      I take for the purpose of sentence a starting point at the cusp of bands three - four, R v AM, 16 years. I do so for the reasons that the Crown has identified. However, the R v AM bands mark a gradation in seriousness which makes exact banding difficult. Analogies can never be complete. Rather, I am influenced by the following factors.

[38]     This was offending over two years against boys aged between four - eight at a time when you yourself were markedly older, 14 - 16. Whether it was premeditated or opportunistic is unlikely to be a fruitful question. It was offending at a time of your choosing. It involved you using your strength, acting violently and threatening violence and, on occasions, deploying a knife. It was to a recurring pattern.

[39]     The offending itself was of the most extreme form of sexual violation and because it was repeated offending against each victim, aggravated as I described, the effect on them was predictably profound. It may well become more marked with time. They are still young and having to live with the consequences.

[40]     Whether this offending involved an abuse of trust again may not be the most fruitful  inquiry.  Certainly  you  were with  these  boys  at  a time  when  they were vulnerable in your hands, at a time when their parents and yours clearly felt you could be trusted to look after them. You were clearly not abusing trust in the sense that an adult might but the abuse was real enough.

[41]     For those reasons I am satisfied that a starting point with a deterrent effect is called for, not merely deterrent in a general sense but, because you have not acknowledged this offending, also deterring you. Precisely because you have not accepted responsibility you are predicted to be likely to offend in this way again.

[42]     You are, I consider, entitled to a discount for the fact that you were as young as you were. You were 14 - 16 years. That discount will be two years. To what extent  your offending is attributable to intellectual disability is very difficult to assess. The reports suggest you had a good understanding of what you were doing. Or at least you do now. However, the early report, when you were 12 years, may suggest your conduct was influenced by behavioural issues more evident then than now. I will allow in that respect also a discount of two years.

[43]     There remains your plea. It was entered on the point of trial. That was at the latest possible point and usually would attract the slightest discount. However, the Crown  does  accept  that  it  was  always  potential.  There  had  been  extensive negotiations during which your position was always clear. As against that, you show no remorse. Despite your pleas you do not admit this offending. The fullest discount cannot countenanced. I will allow you a 20 percent discount.

[44]     The  result  is  that  you  will  be  sentenced  concurrently  for  each  of  these offences to ten years imprisonment and there remains the issue of the minimum term the Crown contends for on the basis that the statutory minimum term does not suffice to hold you accountable, to denounce and to deter, and to protect the community.

[45]     If you acknowledged this offending and were willing to receive counselling and treatment, the statutory minimum, coupled with the sentence I have imposed, could, I think in principle, suffice to hold you accountable, to denounce, deter and protect. Because you do not admit this offending, however, and you are unwilling to receive treatment, the statutory minimum term is unlikely to suffice to deter and to

protect the community. I impose a half minimum term, five years.

P.J. Keane J