R v Hart

[2019] NZHC 3309

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-092-11255

[2019] NZHC 3309

THE QUEEN

v

WILLIAM LAWRENCE HART

Hearing:	13 December 2019
Appearances:	J Rhodes and A Al-Janabi for Crown M Kan for Defendant
Judgment:	13 December 2019

SENTENCING REMARKS OF LANG J

R v HART [2019] NZHC 3309 [13 December 2019]

[1]        Mr Hart, were found guilty following a trial by jury in the District Court at Manukau on three charges of sexual violation by unlawful sexual connection and one charge of indecently assaulting a male person over the age of 16 years.

[2]        The charges of unlawful sexual  connection  carry  maximum  sentences  of 20 years imprisonment, whilst the charge of indecent assault carries a maximum sentence of seven years imprisonment.

[3]        You were not sentenced in the District Court because the Crown indicated it would seek a sentence of preventive detention because of your previous convictions. You have therefore been remanded to this Court for sentence.

The facts

[4]        The facts on which you are to be sentenced are those canvassed in the trial held before Judge Moala and a jury in the Manukau District Court between 9 and 17 April 2019. The following summary is taken from the Crown’s submissions on sentence. Mr Kan has no issue with the facts as the Crown sets them out in its submissions.

[5]        The victim of your offending was 20 years old at the time of the offending. He was a boarder at an address in Manurewa occupied by a Mr Hazel, whom he evidently regarded as some form of role model. You are an associate of Mr Hazel and resided in another flat in the same complex.

[6]        The offending occurred after the victim arrived home at his flat on the evening of 25 January 2017. You and Mr Hazel were both present in the flat when he arrived. The victim told the Court during the trial that he felt “bad vibes” when he returned to the flat and felt that it “wasn’t safe”.

[7]        You and Mr Hazel told him to pull down his trousers. When he refused to comply, you both took the initiative of pulling his trousers and underwear down. He said that he did not attempt to stop you because he felt too scared.

[8]        You both then touched the victim on his genitals whilst he knelt on the ground. You touched him first and, as you did so, you told him not to look up or you would

stomp on his head. This has resulted in the charge of indecent assault. Whilst the victim was still kneeling on the ground, you took the opportunity to insert your finger inside his anus. He said that you kept it there for “not that long”. This gave rise to Charge 8 in the Crown Charge Notice, which is a charge of sexual violation by unlawful sexual connection.

[9]        You then forced the victim to suck on Mr Hazel’s penis. You also threatened to kick the victim if he refused to do so. As a result of your threats, the victim was forced to suck Mr Hazel’s penis for about five minutes before he pushed himself away. You were standing behind the victim while this occurred. This series of events gave rise to Charge 5, a further charge of sexual violation by unlawful sexual connection.

[10]      After the victim pushed himself away, you told him to do it again and renewed your threat to kick him in the head if he refused to comply. This led to the victim again being forced to suck Mr Hazel’s penis, thereby giving rise to the third charge of sexual violation by unlawful sexual connection. This incident finally ended when the victim pushed himself away, put his trousers back on and ran out through a sliding door. The victim then ran to a friend’s address, where he disclosed the offending.

Sentencing Act 2002

[11]      In any case as serious as this the sentencing purposes of deterrence, denunciation and the need to hold the offender accountable for his actions are to the forefront.

[12]      In addition, the harm done to the victim needs to be reflected in the sentence. I have read the victim impact statement, and this makes it clear that your offending has had extremely serious consequences for the victim. These are likely to be long- lasting and extremely damaging for him.

Approach

[13]      I propose, first, to fix the finite sentence that would be imposed if that was found to be the most appropriate sentencing option. I will then consider whether the indeterminate sentence of preventive detention should be imposed.

Finite sentence

[14]      In order to fix the finite sentence that is appropriate in your case, I need to fix a starting point that reflects the overall culpability of your offending but does not take into account factors personal to you. I then need to consider whether to uplift the starting point to reflect aggravating factors personal to you before reducing the sentence to take into account any mitigating factors personal to you.

Starting point

[15]      The starting point for your offending must be fixed having regard to the principles outlined in the guideline judgment of the Court of Appeal in R v AM.1 In that case the Court of Appeal identified bands of offending depending on the aggravating factors present in any given case.

[16]      Your offending involves several aggravating factors. The first is that your victim was a particularly vulnerable person by virtue of his mental impairment. The trial transcript reveals that significant allowance had to be made in the trial process in order to enable him to give his evidence at trial.

[17]      Secondly, your offending involved two individuals combining forces to overcome any resistance by the victim. Both of you were also much older than the victim. You were 56 years of age at the time of the offending.

[18]      Thirdly, the offending involved threats of violence designed to coerce the victim into submitting to your demands. Finally, the offending occurred at the victim’s home address where he was entitled to feel secure.

[19]      Your role in events as disclosed by the summary that I have set out above was, first, to indecently assault the victim by touching his genitals. Secondly, you took the opportunity whilst he was kneeling on the ground to insert your finger into his anus. Thirdly, you used threats to coerce the victim to engage in non-consensual oral sex with Mr Hazel. This means you were a party to Mr Hazel’s offending.

1      R v AM [2010] NZCA 114, [2010] 2 NZLR 750

[20]      I agree with the Crown that the aggravating factors I have identified in your offending mean that it falls within Band 2 identified in R v AM. This requires a starting point of between seven and 13 years imprisonment. Your counsel contends that the offending falls at the lower end of this band, and that a starting point of around seven years imprisonment is appropriate. The Crown takes a different view and contends the offending falls towards the upper end of Band 2. It submits a starting point of around twelve years imprisonment would be appropriate.

[21]      I consider the aggravating factors of your offending require a starting point in the middle of the range identified in Band 2. I therefore select a starting point of ten years imprisonment.

Aggravating factors

[22]      You have a significant number of previous convictions, the most serious of which is a conviction for murder entered in April 1986. I refer to that again later when I consider the issue of preventive detention. You have no previous convictions, however, for sexual offending or for violent offending in a sexual context. I therefore do not consider it appropriate to apply any uplift to reflect your previous convictions.

Mitigating factors

[23]      The only mitigating factors are those appearing in a cultural report provided to the Court under s 27 of the Sentencing Act 2002. This records that you had a father who spent long periods away from home. You were also sexually abused in a school environment when you were nine years of age. You then came to New Zealand from Scotland as an adolescent, and this presented you with difficulties at school here. It has also created a disconnect with your Scottish heritage.

[24]      You told the writer of the report you became involved with alcohol and drugs at an early age and also became a parent at just 14 years of age. You left school at 15 years of age after obtaining no formal qualifications. At or around the same time you first came to the attention of the courts. You were subsequently sentenced to life imprisonment on the murder charge at just 25 years of age. This means you have

become largely institutionalised through the time you have spent in prison. The report says this has led you to become a recidivist offender who leads a transient lifestyle.

[25]      I cannot discern any realistic link, however, between the factors identified in the report and your present offending. This is particularly so given the fact that you continue to deny the offending. Why should the Court give you credit for factors in the past that contributed to the offending when you do not acknowledge that the offending occurred? In case I am wrong in this assessment, however, I would make an allowance of five per cent, or six months, to reflect the factors identified in the report.

End sentence

[26]This produces an end finite sentence of nine years six months imprisonment.

Minimum term of imprisonment

[27]      In any case where the Court sentences an offender to more than two years imprisonment it may impose a minimum term of imprisonment if it is satisfied that the usual parole period will not be sufficient to reflect the sentencing purposes and principles of deterrence, denunciation, the need to hold the offender responsible for his or her actions and the need to protect the community.2 In the ordinary course of events you would be eligible for parole after serving just over three years of your sentence. I do not consider that would be sufficient to reflect the need to deter you from future similar conduct, to denounce your actions, to hold you properly responsible for your offending and to provide a measure of protection for the community from further similar offending at your hands. I would therefore impose a minimum term of imprisonment of four years eight months if a finite sentence was considered appropriate.

2      Sentencing Act 2002, s 86(1) and (2).

Preventive detention

[28]      You are eligible for a sentence of preventive detention because of your convictions for murder and sexual violation by unlawful sexual connection.3 Those are both qualifying offences for the purposes of a sentence of preventive detention.4

[29]      In deciding whether to impose a sentence of preventive detention, I must first determine whether it is likely you will commit another qualifying offence upon your release.5 In considering whether to impose a sentence of preventive detention the Court is also required to take into account the five factors set out in s 87(4) of the Sentencing Act 2002. Having considered these the Court must stand back and determine the manner in which it should exercise its discretion, either in favour of a finite sentence of imprisonment or the sentence of preventive detention. The underlying concern the Court is required to address is whether the offender, that is you, is likely to remain an ongoing risk to the safety of the community that can only be met by the imposition of a sentence of preventive detention.

[30]      That sentence is not, however, a sentence of last resort. In other words, it is not a sentence that can only be imposed after other sentencing options have been tried without success. This is important in your case because this is the first occasion on which you have appeared before the courts on charges involving sexual misconduct.

[31]The issues I am required to take into account under s 87(4) are as follows:

(a)Any pattern of serious offending disclosed by your history;

(b)The seriousness of the harm to the community caused by the offending;

(c)Information indicating a tendency to commit serious offences in the future;

3      Sentencing Act 2002, s 87(2)(a).

4      Sentencing Act 2002, s 87(5)(a) and (b).

5      Sentencing Act 2002, s 87

(d)The absence of, or failure, of efforts by the offender to address the cause or causes of the offending; and

(e)The principle that a lengthy finite sentence is preferable if this provides adequate protection for the community.

(a)Any pattern of serious offending disclosed by the offender’s history

[32]      As I have already recorded, you have a number of previous convictions. These begin with notations in the Youth Court for careless use of a firearm and common assault in 1976 and 1978 respectively. You then committed what could be described as a number of “nuisance” offences between 1978 and 1983. These were dealt with by fines and, in one case, a sentence of community service.

[33]      Things took a dramatic turn in 1986 when you were convicted and sentenced to life imprisonment on a charge of murder. I have only been able to ascertain details of this offending from a judgment of the Court of Appeal that allowed an appeal against conviction following your first trial in May 1985.6 This reveals that you were found guilty of murdering a young woman on a beach at Browns Bay on 23 November 1984.

[34]      The victim was a young woman whose nearly naked body was found at dawn, face down on the beach. Drag marks led from a grass reserve nearby and then along the beach to a point just short of the body. The cause of death was determined to be drowning, but prior to this the victim had been severely assaulted. She had been struck many blows, probably with a fist, to the face and forehead. This caused extensive bruising and a broken nose. The victim also had bruise marks on her neck and puncture marks on her breast consistent with bite marks. There was also bruising to the rib cage and abdomen suggesting further blunt trauma, as well as injuries to the genital region suggesting an attempt at sexual intercourse. There was no scientific evidence, however, that specifically linked you with such an attempt. There were drag marks on her buttocks and hips, but not on the lower legs. This suggested that her trousers and underclothing had been on but pulled down when she was dragged along

6      R v Hart [1986] 2 NZLR 408 (CA).

the beach. When the police searched your address, they found bloodstained clothing. Upon analysis the blood was consistent with that of the victim.

[35]      The police were able to ascertain that you and the victim had been drinking together in a bar on the evening before her death. Witnesses saw the victim leave the bar in your company and walk down towards the beach. You told the police you had left the bar on your own and had met her on the street. It is clear, however, that both you and the victim were significantly affected by alcohol. You told the police the two of you had gone down to a grassy bank near the beach. There you began kissing and trying to take each other’s clothes off. At some stage during this activity you said the victim bit you on the tongue. You told the police you then went “half crazy” and began hitting her with your hand. You said you then ran away from the scene. You denied you were responsible for dragging her onto the beach and leaving her in a position where she was likely to drown. The jury in both trials obviously took a different view.

[36]      It is not clear exactly when you were released from prison, although one of the reports I have received suggests you were in prison for 11 years. You have told your counsel today that you were released in 1994 after serving a total of 11 years in prison. In any event you were convicted in April 1994 of driving with excess breath alcohol. There were then some minor drug-related charges, before a conviction in April 1998 for assault with intent to rob. The details of that offending are unknown, but it led to a sentence of two years imprisonment. In May 2011, you were convicted of assault with intent to injure and received a further sentence of eight months imprisonment on that charge as well as two charges of assaulting a female. You then breached your release conditions in January 2015 and committed two further driving offences in the same month.

[37]      In summary, you have no previous convictions for sexual offending but have three previous convictions for offending involving violence, all of which have resulted in sentences of imprisonment. These are the convictions for murder committed in 1984, assault with intent to rob in 1998 and assault with intent to injure in 2011.

[38]      Taken together, I consider that your previous convictions do not establish a pattern of sexual offending as such, but they do establish a pattern of offending

involving significant violence. The present offending also involved a significant degree of violence because of the threats of violence that were made to the victim. Sexual activity such as that which you and Mr Hazel engaged in with the victim in the present case is also a form of violence in its own right.

(b)The seriousness of harm to the community caused by the offending

[39]      This factor really speaks for itself. Serious sexual offending such as this causes harm not only for the victim but also for others in similar positions. It leads to distrust between members of the community and tends to break down the fabric of society.

(c)Information indicating a tendency to commit serious offences in the future

[40]      The Court has the benefit of two reports prepared by health assessors, both of whom are consultant psychiatrists attached to Regional Forensic Psychiatry Services. The first is a report dated 23 July 2019 from Dr Kyros Karayiannis. Dr Karayiannis notes that there is no evidence you suffer from any mental disorder although you have features of anti-social personality traits, including deceit and dishonesty, irritability, impulsivity, substance abuse and a history of repeated rule breaking and law violation.

[41]      Dr Karayiannis has used standardised tools of sexual risk assessment known as the Static 99 and the SVR 20 instruments which assist in assessing the risk of future sexual reoffending. In assessing the risk of future violent offending, Dr Karayiannis is assisted by the use of the HCR-20 Version 3 instrument.

[42]      Dr Karayiannis concludes that you fit within a group of people who are at moderate risk of sexual offending in the future. Dr Karayiannis says that several dynamic risk enhancing factors are present that increase your risk of sexual and violent offending and these will need to be the focus of treatment. You have protective factors to some degree including average intelligence, secure attachments in childhood with at least one pro-social adult present in your home environment, employment, some positive life goals and a reasonable social network. He places you in the low to moderate risk of further sexual offending, but in a group that would be of moderate to high risk of future violent offending.

[43]      I also have a report dated 12 August 2019 from Dr John Jacques. Dr Jacques notes that you continue to maintain your innocence and say there is “not a grain of truth” in what the victim has said. You maintain that any sexual activity involved only Mr Hazel and the victim and that you played no part in it.

[44]      In order to assess the risk of future violent offending Dr Jacques used the HCR20 V3 tool. This revealed that you have multiple risk factors associated with future serious violence. You scored across a number of domains in the historic and clinical risk factors and scored highly on the risk management risk items. The latter are thought to be more closely associated with the future likelihood of serious violence and you possess four out of five of these. This elevates the likelihood that you will become involved in serious violence offending in the future.

[45]      Like Dr Karayiannis, Dr Jacques used the SVR 20 tool to assess the risk of future sexual violence. He notes that this assessment is more challenging because of your lack of previous convictions for such offences. Dr Jacques concludes that you are at high risk of committing a future violent offence and at some risk of future sexual offending. He considers several interventions will be necessary to reduce the risk of future violent and sexual offending. Dr Jacques points out, however, that this is the first occasion on which you have appeared before the Court for offending involving sexual violence. He considers this distinction to be important when considering whether a sentence of preventive detention should be imposed and recommends that this factor be taken into account when determining that issue.

(d)The absence of, or failure of, efforts by the offender to address the cause or causes of the offending

[46]      Given the fact that you have never been convicted of sexual offending in the past it is not surprising that you have not been offered treatment to address this type of offending before. I regard this as being a neutral factor.

(e)The principle that a lengthy finite sentence is preferable if this provides adequate protection for the community

[47]      This principle also speaks for itself. It reflects Parliament’s preference for the imposition of a finite sentence where that is sufficient to provide adequate protection for the community

Conclusion

[48]      Taking these factors into account I have concluded you are at moderate to high risk of serious re-offending in a violent manner following your release from prison and at a low to moderate risk of committing sexual offences in the future. The factor that resonates from both health assessors’ reports, however, is that it is essential for you to address the underlying causes of your past offending so that the risk of similar offending occurring in the future is diminished.

Should a sentence of preventive detention be imposed?

[49]      It is now necessary to stand back and determine whether to exercise my discretion in favour of a finite sentence of nine years six months imprisonment rather than the indeterminate sentence of preventive detention.

[50]      I acknowledge that factors point both ways. Factors pointing against a sentence of preventive detention include the fact that this is the first occasion on which you have been convicted of sexual offending. I also accept that if your conviction for murder is put to one side, your criminal history is relatively unremarkable.

[51]      The fact that you have already been convicted of murder committed in the circumstances I have described is, however, a highly relevant factor in the assessment of future risk. That offending may have been opportunistic and fuelled by alcohol, but it nevertheless demonstrates a callous disregard for the safety of others. The fact that you were subsequently sent to prison on two further occasions for offending involving violence following your release on life parole likewise shows you are prepared to continue to offend in a violent way with little regard for the consequences.

[52]      The present offending also has obvious and concerning factors. It involves another opportunistic incident in which, in this case, serious sexual offending was committed against a vulnerable individual. It is difficult to ascertain why you would have suddenly agreed or wished to become involved in offending of this type given your lack of previous convictions for sexual offending. Furthermore, you continue to deny any involvement in the offending. This is a matter of concern because it does not augur well for any attempts that may be made in the future to offer you the types of treatment or therapeutic intervention necessary to address the underlying causes of your offending. Indeed, one of the reports suggests you are ambivalent about the prospect of engaging in therapeutic intervention whilst in custody.

[53]      Mr Kan submits on your behalf that a sentence of preventive detention is not required in your case, and advocates a finite sentence of imprisonment. He also points out that you may now be recalled to continue serving the sentence of life imprisonment imposed in 1986. He says it will ultimately be for the Parole Board to determine whether you have ceased to be a threat of future violent offending and may therefore be released.

[54]      I acknowledge that fact but make three observations. First, it is now well established that the fact that the imposition of a sentence of preventive detention on an offender who is already subject to the indeterminate sentence of life imprisonment is not contrary to principle where the protection of the community requires preventive detention to be imposed. Sadly, there are numerous offenders now serving concurrent sentences of life imprisonment and preventive detention. Secondly, merely recalling you to continue serving your life sentence will do nothing of itself to identify and address the causes of your offending. Thirdly, I do not see you as being a person for whom the prospect of recall to prison holds any particular concern. As I understand the position you have already been recalled to prison on two occasions because of the offences you have committed following your release. As your current offending demonstrates, recall on those occasions has failed to dissuade you from continuing to offend.

[55]      The concern I hold is that you will simply serve any sentence of imprisonment the Court might impose without accepting either the fact or the gravity of the present

offending and/or the need to address the underlying causes of it and your past offending. In my view a sentence of preventive detention is the only sentence likely to focus your mind on that issue to the point where you will engage meaningfully in the therapeutic programmes that will no doubt be offered to you in prison. I have therefore concluded a sentence of preventive detention provides the most effective, and indeed the only, effective means of ensuring the community is protected from the risk of future violent offending by you upon your release.

Sentence

[56]      On each of the charges of sexual violation by unlawful sexual connection you are sentenced to preventive detention and ordered to serve a minimum term of imprisonment of five years before being eligible for parole. On the charge of indecent assault, you are sentenced to two years imprisonment. All sentences are to be served concurrently.

Lang J

Solicitors:

Michael Kan Law, Auckland