R v Hutton CA297/02

[2003] NZCA 418

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA297/02

THE QUEEN

v

HUTTON

Hearing:         13 October 2003

Coram:McGrath J Goddard J Laurenson J

Appearances: P J Kaye and N R Webby for Appellant

M A Woolford for Crown

Judgment:      4 November 2003

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

Introduction

[1]      The appellant was convicted by a jury in the Rotorua High Court in February

1996 of two charges of sexual violation by rape.  The offences had been committed in the period May-June 1994 and the complainant was the 7 year old daughter of a woman who had been residing with the appellant at his home address at that time. The following month, March 1996, the appellant was convicted by another jury in

the Hamilton District Court of nine charges of sexual offending against four young

R V HUTTON CA CA297/02 [4 November 2003]

female complainants aged variously 5 and 15 years.  This raft of offending spanned the time period 1983-1992.  The trial Judge in the District Court declined to sentence the appellant and instead committed him to the High Court for sentence by the trial Judge who had presided over his trial in that Court.

[2]      On 9 May 1996 the appellant appeared for sentence in the High Court and received finite sentences ranging from 18 months to 9 years imprisonment on the charges for which he had been convicted in the District Court and concurrent sentences of preventive detention on the remaining District Court charge (indecent assault) and on the two charges of rape for which he had been convicted in the High Court.  He appealed against both conviction and sentence in 1996 but his appeal was dismissed following an ex parte consideration and he has exercised his right to have it freshly heard.  He now appeals: first, against the two convictions for rape entered in the High Court at Rotorua; and secondly, against the sentences of preventive detention imposed on those charges and on the indecent assault of which he was convicted in the District Court.   The ground of appeal in relation to the rape convictions in the High Court is based on miscarriage of justice arising from alleged misconduct by two jurors who, it is submitted, should have been discharged by the trial  Judge  pursuant  to  s374  Crimes  Act  1961  as  “incapable”  of  continuing  to perform their duty.

[3]      The appeal against sentence was argued on the basis that the imposition of a sentence of preventive detention for three charges in respect of which it was imposed was manifestly excessive in the circumstances of the case.  The submission was that an appropriate sentence, having regard to the totality of the offending, would have been a lengthy determinate sentence.

The High Court trial

[4]      The two offences of rape with which the appellant was charged occurred when the appellant had sexual intercourse with the 7 year old complainant on two occasions between 1 May and 30 June 1994.   The first incident occurred in the appellant’s bedroom when the child said he grabbed her and put her onto his bed and then pulled her pants down and had intercourse with her.   The second incident

occurred in a room at the rear of his garage when the appellant was said to have pulled the complainant’s pants down and told her to get onto a table and lie there or he would give her “a growling”.   He then had sexual intercourse with her. The complainant described both acts of sexual violation as having “hurt” her.   A subsequent medical examination revealed penetrative injury to her hymen.   The complainant subsequently told her mother what had happened to her, this in November the same year.   The appellant was then interviewed by the Police and arrested.  He gave evidence at his trial, in which he asserted that the complainant was lying about matters, and by way of explanations said that the complainant’s mother had told him that the child’s father had “interfered” with her and that a previous boyfriend of hers may also have interfered with her.

[5]      The trial occupied two days and the alleged incident of jury misconduct arose during the luncheon adjournment on the first day.  That incident was described for the Court in a memorandum prepared by trial counsel as follows:

Following the afternoon adjournment at 3.30pm Counsel was approached by two  supporters  of  the  Prisoner  namely  Shirley Joy  Barrow  and  Lynette Murrell.   The information given to Counsel was that they had witnessed what they believed was to be two members of the jury panel speaking with [the Complainant].  This was duly raised with the Court. Discussions were held with the two Jury members in Chambers.  Following those discussions it was ascertained that the only conversation that took place was one of those Jurors, namely Ms H, spoke briefly with the Complainant … to the extent of saying “Hello” and for her to be careful as she was sliding down  a stairway bannister.

Following those discussions it was decided that there could be no prejudice to the Prisoner and accordingly the trial proceeded.  Counsel had discussions with the Prisoner and on that basis he also had no complaint with the trial proceeding.

Some time later following the conclusion of all evidence the question of the discussions between the Complainant and the Juror was again raised.

Counsel has now obtained an Affidavit from Shirley Joy Barrow of Matamata, Community Social Worker/Counsellor to the extent that the discussions were of more significance than first informed.

[6]      Ms Barrow, one of the two supporters of the appellant referred to in the above memorandum swore an affidavit for the purposes of appeal.   The other supporter referred to above also set out her recollection in a memorandum which was submitted on appeal.  Ms Barrow in her affidavit said inter alia:

… on Monday 19 February 1996, during the lunch break, at approximately

1.45pm … I observed a situation that concerned me greatly.

I had left the Court waiting area to feed the meter at 1.20pm and returned to the waiting area at 1.40pm.  I had taken out a book from my bag to read, when I looked up and saw two members of the Jury selected for Mr Hutton’s trial in the waiting area of the Rotorua Court.  These Jury members spoke for four to six minutes with the young girl and her mother who were witnesses for the Prosecution in Mr Hutton’s trial …

Present also was the woman who seemed to have the role of support person on behalf of the Court with these two witnesses.  I had observed this support person talking to, guiding through locked doors and attending to the needs of these two witnesses.

I was not able to hear the dialogue from where I sat in the waiting area of the Court but watched, what I believe was people who knew each other, talking. After this time of four to six minutes elapsed the two women walked through past the Te Whanau desk and down the steps.

The young girl followed them chatting to them and as they went down the stairs, the girl was spoken to by the younger Juror who said, “Be careful, you might fall and hurt yourself”.  I was able to hear this comment as I was so concerned by what I believed I was seeing that I had walked to the edge of the wall around the stairs and watched and listened carefully to see if these woman knew the young child. I believe that they did and this was clear from the chatter and the way they interacted.

… at the break that occurred at 3.30pm myself and Lynette Murrell spoke briefly with Mr Bergseng.  We indicated that we had witnessed a meeting between [the complainant], her mother and the two people we had confirmed as being Jurors.   At the time we indicated only that there had been the meeting and it was not until some time later that we were able to provide further details of that meeting.

That evening, after the conclusion of Court for the day I spoke with Mr Bergseng in the presence of Mr Hutton.  We then discussed the meeting that took place and I fully informed Mr Bergseng that the discussion that took place was of more significance than had been relayed by the two Jurors to the Judge.

Myself and Mr Bergseng discussed this matter with Mr Hutton.  It was my advice to Mr Hutton that the trial should proceed at that stage.  I was of this view because of the enormous strain and pressure that had been put on the family.  I believe that the advice I gave to Mr Hutton, namely that he should continue with the trial, was advice that would be accepted by him without question.   In hindsight I believe that there is a very real chance there has been a miscarriage of justice in this particular case.

It is my view that from what I witnessed the Jurors knew the Complainant and her mother. The discussion that took place involved both Jurors and was involved.  I believe that for the sake of expedience I made a recommendation to the Accused which at the time he was really in no fit state  to  truly appreciate.  I am now extremely concerned that there has been a substantial miscarriage of justice.

[7]      In her memorandum, Ms Murrell said:

… two of the Jury members on Monday February 19th 1996, came upstairs at

1.45pm in the High Court and walked over to the room where the victim and her mother was, they were in the room for about 10 minutes and they came

out and stood at the top of the stairs talking with the Victim … and her

mother …, when they saw that I was watching them, they then went down the stairs together all four of them talking.  I saw all of this because I was sitting at the end of the waiting room facing the stairs as in the diagram.

… When Mr Hutton’s lawyer came in we told him.   He came in at about

2.05pm to see us, five minutes after the Victim and the Jury members had finished talking and they had all gone out of sight.

[8]      Following receipt of the appellant’s notice of appeal accompanied by the affidavit of Ms Barrow and the memorandum of Ms Murrell, the Crown solicitor at Rotorua wrote to the officer in charge of the case, Detective Constable Watene, asking  him  to  make  enquiries  of  the  complainant  and  her  mother  about  the discussion  that  had  allegedly  taken  place.    In  particular,  the  Crown  solicitor requested that the complainant and her mother be asked to comment on the length of time that they spoke to the two jurors, what they had actually talked about and whether they knew the jurors at all.

[9]      The complainant and her mother were interviewed by a police officer as requested.  In her statement, the complainant described how she and her mother had been picked up by Detective Constable Watene on the first morning of trial and taken to the Court, where they had waited in a witness room until the complainant gave her evidence.  The complainant said that after giving her evidence just before lunch she was taken back to the witness room.  In relation to what happened then she said:

Brett [Detective Constable Watene] went and bought us some lunch.   We had lunch in the witness room.  I didn’t go outside at lunch time.  We had to stay in the witness room. … The lady that was next to the witness room looked after me while mum was in court.  While mum was in court I went out of the witness room and ran up and down the stairs.  When mum finished in court we waited for Brett then went back to the motel.  The lady beside the witness room the one looking after me told me to be careful when I was running up and down the stairs.  I can’t remember the name of the lady, but she brought mum coffee.  I helped her clean up the witness room.

[10]     The complainant further said that the doctor who had examined her also told her to “be careful when I was sliding down the stairs”, when she encountered him at the Courthouse.

[11]     The complainant then spoke of having to go back to the Court the following morning and of again playing on the stairs at the Courthouse.

[12]     The following appears as an addendum to her statement:

Further to the above statement [the complainant] tells her mother that a lady in a black suit told her to be careful while she was playing on the stairs, that was all that was said.  [The complainant] states that’s the only time she [saw] that person.

The above can be taken as a reference to one of the two jurors.

[13]     In her statement the complainant’s mother said:

On Monday … we were picked up by Brett Watene at about 9.30am-9.40am and taken to court.  Brett took us to a witness room at court.  We met a lady that was in an office beside the witness room she took us through the court showing us around.  We had to wait in the witness room until it was [the complainant’s] turn to give evidence.   A lady and Brett, took [the complainant] to the room where she had to go and I stayed in the witness room.   I walked around in the foyer and had a few smokes while [the complainant] gave her evidence.  Then I went back in and waited for [the complainant] to finish.  Brett came in and told us we could go and get some lunch but I didn’t have any money so he told us to wait in the witness room and he went and got us some lunch.  During the lunch break I stayed in the witness room the door was open to the foyer.  [The complainant] stayed in the room or stood in the door way.  Brett had lunch with us.  It was about ¼ to 2 when we started to have lunch because it was 2.10pm when I walked into the court room.   [The complainant] didn’t go down the steps at all during the lunch break.  The only people I spoke [to] was the lady looking after us Brett and the Police prosecutor.  I didn’t speak to any jury members at all.   I did not know any of the jury members.   I did not see [the complainant] speak to any jury members.  I don’t even remember seeing any of the jury out in the foyer.  After I gave my evidence and went out of the court room the doctor that examined [the complainant] was there.  He asked me how things were going and if I had just finished giving evidence.  I said yes.  The lady looking after us was also there with [the complainant].  We then just waited in the foyer until Brett came and told us we could go. … The following day at court neither myself or [the complainant] spoke to any of the jury.

The appeal

[14]     The case for the  appellant  is  that,  had  the true extent  of the interaction between  the  two  jurors  in  question  and  the  complainant  and  her  mother  been apparent to the trial Judge, then the interests of justice would have required that he discharge at least those two jurors, if not the entire jury.

[15]     The situation is governed by s374 Crimes Act 1961, which provides for the

Court to discharge a juror or a jury in the circumstances set out in the section:

374 Discharge of jury

(1)Subject  to  the  provisions  of  this  section,  the  Court  may  in  its discretion, in the case of any emergency or casualty rendering it, in the opinion of the Court, highly expedient for the ends of justice to do so, discharge the jury without their giving a verdict.

(2)       Without limiting subsection (1) of this section, where a jury has remained in deliberation for such period as the Judge thinks reasonable, being not less than 4 hours, and does not agree on the verdict to be given, the Judge may discharge the jury without their giving a verdict.

[(3)      Subsection (4) applies if, at any time before the verdict of the jury is taken, the Court is of the opinion that—

(a) A juror is incapable of continuing to perform his or her duty; or

(b) A juror is disqualified; or

[(c) A juror's spouse, de facto partner of the same or different sex, family member, or a family member of a juror's spouse or de facto partner (whether of the same or different sex) is ill or has died; or]

(d) A juror is personally concerned in the facts of the case; or

(e) A juror is closely connected with 1 of the parties or with 1 of the witnesses or prospective witnesses.

(4)Where  this  subsection  applies,  the  Court,  having  regard  to  the interests of justice, may,—

(a) Make an order discharging the jury without their giving a verdict;

or

(b) Subject to subsection (4A), make an order to proceed with the remaining jurors and take their verdict.

[16]     On behalf of the appellant, Mr Kaye submitted that the use of the phrase “highly expedient for the ends of justice” means no more than is necessary to prevent a miscarriage of justice.  He said it is not clear on the authorities which particular test should be applied to determine whether the irregularity in question requires the discharge of a juror or of a jury as a whole.  He pointed first to the test stated by the English Courts of real risk of prejudice to the accused: R v Spencer [1986] 2 All ER

928.   He pointed then to the Australian test of whether there is a reasonable apprehension of prejudice: Webb v R (1994) 122 ALR 41; 68 ALJR 582. In the New Zealand context, he pointed to the decision of the Court of Appeal in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142, and to the indication of this Court that there is little practical difference between the two formulations. This Court accepted as satisfactory the test of whether a reasonable person knowing all of the material facts would consider that there was a real danger of bias.

[17]     Mr Kaye conceded that the test rules out the necessity of discharging a juror or jury if the event concerned does not appear to have really affected the accused’s position.  Nevertheless, he submitted that, if the true nature and extent of the event in the appellant’s case had been known, it would have been apparent that there was a real danger of bias on the part of the two jurors in question and perhaps also of the jury as a whole.   He submitted that the following dictum of this Court in R v M (1991) 7 CRNZ 438 (CA) remains of assistance and was applicable at the time of the appellant’s trial in 1996:

[A] juror should be free from well-grounded objections based on a risk of partiality arising from events after the empanelling.   ‘Incapable’ must therefore include the case of a juror whose continued presence on the jury would jeopardise the fairness of the trial to either side or make the verdict abortive or seriously vulnerable.   It could hardly be said that a juror is

‘capable’ of continuing to act if the inevitable result is a suspect trial.

[18]    Mr Kaye’s submission was that the fairness of the appellant’s trial was jeopardised by the observed interaction between the two jurors and the complainant and her mother, and that if any information gleaned from that interaction had been imparted by one or both of the jurors to other members of the jury, then the resulting convictions could not be reasonably and objectively regarded as safe.  In this regard he referred to the decision of this Court in R v Coombs [1985] 1 NZLR 318, and to the following passage from that judgment:

The second point is that we do not know what it was the juror had learnt about the accused.  We only know that she was influenced by it.  As it is evident from the record set out that something was said by her to other members of the jury the conviction cannot safely stand.  So for this reason as well as for the combination of matters already mentioned the conviction must be quashed and, despite Mr Stevens submission to the contrary a new trial ordered.

It remains to mention s 374 of the Crimes Act as substituted by s 13 of the Crimes Amendment Act (No 2) 1980.   Subsections (3) and (8) provide as follows:

"(3) If, at any time before the verdict of the jury is taken, any juror becomes  in the  opinion  of  the  Court  incapable  of  continuing  to perform his or her duty, or it becomes known to the Court that the juror is disqualified or that the juror's spouse or a member of the juror's family or a member of the family of the juror's spouse is ill or has died, the Court may in its discretion -

(a) Discharge the jury without their giving a verdict; or

(b) Proceed with the remaining jurors and take their verdict.

. . .

(8) No Court may review the exercise of any discretion under this section."

We do not consider that the inviolability of a discretion affects the obligation of the Court under s 385 to allow an appeal where it is satisfied that there was a substantial miscarriage of justice.

Discussion

[19]     On analysis of the evidence, as presented to us, we are not satisfied that any real  risk  of  prejudice  to  the  accused  has  been  demonstrated.    First,  it  is  of significance  that  the  allegations  of  a  more  involved  interaction  than  originally advised to trial counsel did not surface until later.   Trial counsel’s version is that, sometime later and following the conclusion of all the evidence, the question of the alleged discussions between the complainant and the jurors was again raised.   Ms Barrow says that she raised the matter again at the conclusion of the first day of trial (presumably after the Judge had interviewed the two jurors and concluded that there was no cause for concern).  According to Ms Barrow, at that time, it was she who made the ‘tactical’ decision that the trial should nevertheless proceed.  She says that she now believes her advice has caused a “very real chance” of a miscarriage of justice in the appellant’s case.  However, it seems that this realisation did not become

manifest to Ms Barrow until after the jury had returned its verdicts of guilty.  If Ms Barrow was indeed “so concerned” by what she “believed” she had seen at the time of trial, it is unlikely that she would have put those concerns so easily to one side and let the trial proceed, or that trial counsel and the appellant would have accepted her assurance that the trial should definitely “proceed at that stage”.  It was trial counsel who was in charge of the conduct of the trial, and it must therefore be assumed that if he had harboured any real concern about the risk of a miscarriage of justice he would have revisited the matter with the trial Judge.  It is clear however that he did not do so.

[20]     Secondly, there is an inherent unlikelihood that the scenario now portrayed by Ms Barrow and Ms Morrell is an accurate portrayal of events.  Both woman state that the alleged contact between the two jurors and the complainant and her mother occurred at 1.45pm.  At that very time Ms Barrow says she saw the jurors speaking for “4-6 minutes with the young girl and her mother”, and that “present also was the woman who seemed to have the role of support person on behalf of the court with these two witnesses”.   Ms Barrow further says that at 1.45pm the jurors “walked over to the room where the victim and her was, they were in the room for about 10 minutes and they came out and stood at the top of the stairs talking with the victim

… and her mother”.  She then goes on to say that when they saw she was watching they “then went down the stairs together all four of them talking”.

[21]     The inherent unlikelihood that the complainant and her mother engaged in any sort of a discussion with two jurors, let alone a lengthy discussion, arises from the fact that Detective Constable Watene, the officer in charge of the case, had bought them lunch and was in the witness room with them, eating lunch, from about

1.45pm.  There is also the additional factor of the presence of the court appointed support person throughout these alleged events of juror contamination.  We simply cannot accept that either the officer in charge of the case or the support person would have permitted such contamination to occur.  All that seems likely is that the child complainant was playing on the stairs at the time the jurors returned from lunch and was warned by one of them “to be careful”.  That inherent likelihood is borne out by the fact that the doctor who gave evidence for the prosecution also appears to have given the child the same warning when he encountered her on the stairs, as did the

Court appointed support person whilst she was looking after the child.  Therefore the reasonable inference is that, during the long waiting period at Court, the child complainant played on the stairs under the supervision of the court support person and/or her mother and/or Detective Constable Watene, and several people who encountered her told her “to be careful”.

[22]     A further factor that militates against two of the jurors having spoken at length or in any substance to the complainant or her mother is that they would have had to have done so in the face of the clear warning that would have been issued by the trial Judge in his preliminary remarks that same morning.   Again, we find it difficult to accept they would have done so.

[23]   The suggestion by Ms Barrow that the two jurors in question and the complainant and her mother seemed to know each other is unsubstantiated.  Neither party lived in the same town, either at the time of the appellant’s offending, or at the time of his trial in the Rotorua High Court.   Nor is there any evidence of any acquaintanceship whatsoever between them.

[24]     Thirdly, there is no evidence of anything having been said or discussed by the two jurors and the complainant and her mother, except for the warning to the child “to be careful” on the stairs.   Significantly, the complainant’s recollection of this accords  totally  with  the  jurors’  recall  of  the  encounter.    There  is  no  evidence therefore that any information of material relevance passed between the complainant, her mother and the jurors and no evidence that anything could have been passed on to the remaining jury members so as to contaminate them.

[25]     We  are  therefore  satisfied  that  the  trial  Judge  acted  correctly  in  not discharging the jury, and further satisfied that the allegations made subsequently of extended interference do not establish either a real risk of prejudice to the appellant, or even a reasonable apprehension of prejudice.

The appeal against sentence

[26]     As earlier noted, at the trial in the District Court at Hamilton which took place the month after the above trial, the appellant was convicted of nine charges of sexual offending against four young female complainants aged between 5 and 15 years.  That offending spanned the time period 1983-1992 and the charges comprised one count of indecent assault of a girl aged 15 years (who was a state ward at the time and residing in the home of the appellant and his partner); three counts of rape of a girl aged 7-7½ years, and the inducing of an indecent act and the indecent assault of the same girl (who was in a foster-type situation in the house of the appellant and his partner); four counts of indecent assault on a girl aged 5 years (whose family were friends of the appellant and his partner); and one count of indecent assault on a girl aged 14 years (who was under state supervision at the time and staying in the home of the appellant and his partner).

[27]     The appellant was sentenced on all matters by the Judge who had presided at the trial in the High Court at Rotorua.  Prior to sentencing, the appellant was referred to a forensic psychiatrist for assessment and advice to the Court as to whether his pattern of offending was such that there was a substantial risk that he would re- offend in the same way if released into the community.  A forensic psychiatrist, Dr Simpson, interviewed the appellant and furnished two reports to the Court, one written after the appellant’s conviction in the High Court and the second after his conviction in the District Court.  At the time of writing the first report Dr Simpson was unaware of the nature of the charges pending against the appellant in the Hamilton  District  Court,  although  he  was  aware  that  the  appellant  had  been convicted of indecently assaulting a boy under 12 years in 1989 and had received a sentence of imprisonment of one year for that offence.

[28]     In his first report, Dr Simpson said:

While discussing his convictions, I formed the opinion that [the appellant] operates under an external locus of control.   By this I mean he sees any actions he takes being determined by the situation in which he finds himself, rather than accepting responsibility himself for his actions and, therefore, denies his contribution to any incidents which occur involving him.

…

When it is related to  criminal behaviour  in  a  vulnerable  personality,  in anything  but  the  very  short  term,  is  notoriously  difficult.    However  as detailed   earlier   [the   appellant]   has   shown   difficulty   in   accepting responsibility for his actions … He is now convicted of a more serious sexual crime and is again showing very strong denial, making further exploration and work of a therapeutic nature virtually impossible at this stage.      With   this   level   of   resistance,   the   prognosis   for   accepting responsibility is poor and with this apparent lack of motivation to change, the risk of re-offending is significantly increased.

[29]     In his second report, ordered as an addition to his first report and consequent upon the appellant’s conviction on the nine counts in the District Court, Dr Simpson reiterated his opinion that the appellant presented as a  risk of  re-offending and concluded as follows:

I attempted to explore with him the motivation behind the indecent assault upon the young boy, but he became vague and resistant to exploring this further, claiming it was something that just happened.  As I said in my last report, with this level of denial of responsibility or resistance to exploration of these matters it is virtually impossible to make any progress.  When I saw him at the end of February he made no mention of further charges, although he clearly would have known their existence and would appear to have deliberately concealed this information from me.   This again fits with his tendency to avoidance and denial.

…

On enquiring about what impact he thought bringing these charges against him would have on the victims, he appeared to believe that this would cause them little difficulty.   He appeared largely unconcerned for the welfare of anyone involved in the case.   Again he tended to lapse into presenting as being somewhat vague, not understanding what is going on which, I believe, is a psychological defence he uses to avoid the reality of the situation.  He appears to have a long history of behaving in this manner, which is a feature of his personality.

Due to [the appellant’s] lack of co-operation, it is not possible to reach any understanding of his sexual offending.  This has been of a serious nature and occurred in several occasions over many years.  With the level of denial of responsibility and resistance to exploration of these matters which he maintains, in my opinion the risk of reoffending in a similar manner remains high.  He has showed poor response to psychological intervention in the past which gives further doubts as to his prognosis.   However, I would still respectfully recommend referral for assessment by the Justice Department Psychologists with a view to inclusion in a sexual offenders programme.

[30]     The sentencing Judge was satisfied, in terms of s75 Criminal Justice Act

1985, that the appellant constituted a danger to the public because there  was a

substantial risk that he would re-offend in the same way.  The Judge was particularly persuaded of this by the appellant’s complete denial of any wrongdoing.   On the basis of those denials it was inherently unlikely that any treatment programme or counselling would be of benefit to the appellant, even if he were prepared to undertake it.

[31]     The Judge dealt first with the nine District Court convictions.  He imposed concurrent sentences of three  years imprisonment on the first count of indecent assault; four years imprisonment on the three counts of rape on the second complainant, together with sentences of three years and 18 months imprisonment for inducing her  to  commit  an  indecent  act,  and  for  indecently  assaulting  her;  and sentences of two years imprisonment for the indecent assaults on the third complainant.  The overall sentence for this particular raft of offending was therefore nine  years  imprisonment.    This,  the  Judge  said,  reflected  the  totality  of  the appellant’s offending based on the tariffs before 1 December 1993.  In relation to the indecent assault on the fourth complainant and the two rapes for which the appellant had been convicted in the High Court, the Judge imposed sentences of preventive detention.

[32]     Mr Kaye submitted that, in imposing preventive detention, the Judge had given insufficient weight to the principle that a lengthy determinate sentence may be preferable if it provides adequate protection for society.  Whilst conceding that the appellant did qualify for preventive detention under s75(1)(b) Criminal Justice Act

1985, Mr Kaye said that the Judge had not referred to the possibility of a lengthy finite sentence as adequate to meet the protective purpose, and questioned whether the Judge had therefore given sufficient consideration to the possibility of a finite sentence as an adequate response.

[33]     Whilst it is correct that the Judge did not expressly refer to the possibility of a lengthy  finite  sentence,  he  necessarily  must  have  considered  whether  a  finite sentence  provided  sufficient  protection  for  the  public  when  he  reached  the conclusion that it was expedient for the protection of the public that the appellant be sentenced to preventive detention.   In the face of the significant risk of future re- offending identified by Dr Simpson, the Judge could hardly have reached any other

conclusion.  Presented with the appellant’s inability to accept any responsibility for his offending, his continued denials of wrongdoing and his complete lack of empathy for his victims or understanding of the damage he has caused to them, the imposition of any sentence other than preventive detention was effectively ruled out.   The appellant’s history of sexual offending discloses a pattern of recidivist sexual offending against children and young persons.   The nature and persistence of his transgressions are of the type that the preventive purpose of s75(1)(b) Criminal Justice Act 1985 (and now s87 Sentencing Act 2002) is specifically designed to curtail.  The indeterminate nature of the sentence and its minimum non parole period place  the  onus  on  the  appellant  to  undertake  and  successfully  complete  an appropriate treatment programme or programmes whilst serving his sentence.  It will be for him to one day persuade the authorities that he has reformed and is safe to be released back into the community.

[34]     There is one further matter that deserves comment.   Although the Judge imposed the sentences of preventive detention only on the last of the District Court convictions and the two High Court convictions, the appellant’s prior conviction for indecently assaulting a boy under the age of 12 in 1989 was in fact a qualifying offence.  The appellant therefore qualified for preventive detention on all nine of the convictions entered in the District Court, as well as the two High Court convictions.

[35]     Taking all matters into account we are unable to accept that anything other than a sentence of preventive detention was called for in the appellant’s case and his appeal against sentence must also be dismissed.

Result

[36]     The appeals against both conviction and sentence are dismissed.

Solicitors:

Crown Solicitors, Auckland