R v Jellyman HC Wang CRI 2006-083-2875

[2008] NZHC 2276

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2006-083-2875

THE QUEEN

v

STEPHEN LESLIE JELLYMAN

Appearances: H Mallalieu for Crown

L C Rowe for Accused

Sentencing:     28 April 2008

SENTENCING NOTES OF GENDALL J

[1]      Mr  Jellyman  you  were  found  guilty  by  a  jury  in  the  District  Court  at Wanganui on counts of indecent assault and unlawful sexual connection, that is digital penetration of the genitalia of a 16 year old girl on 22 November 2006.  The girl had physical, intellectual and learning difficulties and is described by a psychologist as being a “very vulnerable young person who is intellectually, socially and physically disabled” and her intellectual age would then have been about 11.

[2]      By reason of your previous criminal history the trial Judge in the District Court declined to sentence you as he regarded you as eligible for a sentence of preventive detention.

[3]      The essential facts surrounding your offending are that on the afternoon of

22 November 2006, the girl was walking from her home address in Wanganui to a

R V JELLYMAN HC WANG CRI-2006-083-2875  28 April 2008

nearby dairy.  You did not know her.  But you approached her and asked her if she would like to have sex.  She refused.  You were not to be deterred and followed her. You talked to her with sexual references.

[4]      You were then aged 25.  You were aiming to have sexual intercourse with her.  As you said to one psychiatrist, you eventually had a moderate sense of sexual arousal hoping to have penile-vaginal and oral sex with the victim.  As events turned out, you were interrupted by the passing of a riverboat and avoided detection.  You had taken her to a secluded place beneath a railway bridge where you indecently assaulted  her  by kissing her  breasts  and  after  pulling down  her  underwear  you digitally penetrated her vagina.   You also kissed her on her stomach.   That event lasted approximately 3 minutes and as I have said, it seems that the activity was interrupted by the passing of a boat.  She departed home and told her parents that she had been touched in that manner.

[5]      Her appearance was such that she could easily have been mistaken for an intermediate school aged girl having special education needs, and that was apparent to you.

[6]      When apprehended by the police, you endeavoured to lie your way out of it. I have read the transcript of your video interview, and for a lengthy period you lied, only to finally advance an innocent explanation when you saw that your lies were pointless.

[7]      In normal circumstances offending such as this would not warrant preventive detention.  But in your case you have previous sexual offences, and in terms of s 87 of the Sentencing Act 2002 you qualify for a sentence of preventive detention.

[8]      You have been informed that a sentence of preventive detention is to be considered and have had time for counsel to prepare submissions which of course have occurred.   The Court has to consider reports from at least two appropriate health assessors about the likelihood of your committing a further qualifying sexual or violent offence.  The opinions of health assessors, whilst important, however do not automatically determine the outcome.  The Court has a jurisdiction to impose a

sentence of preventive detention, but it still remains discretionary.  The purpose of such a sentence is to protect the community from those who pose a significant and ongoing risk to the safety of members of the community.

[9]      The Crown has sought a sentence of preventive detention and submits that such is necessary for the protection of the community, and it contends that a finite or determinate, that is a fixed term sentence, is not sufficient to protect the public in your case.

[10]     Your previous convictions are:

a)       On 16 October 1997, when aged 16, you were convicted of unlawful sexual connection with a male under the age of 12.  That was oral sex performed by you upon a 5 year old;

b)On 6 July 2001, when aged 19, you were convicted of unlawful sexual connection and indecent assault on a 49 year old intellectually handicapped woman, together with aggravated assault and entering with intent.  You had attacked her in her home.

[11]     For those crimes you were sentenced to concurrent terms of imprisonment, with a lead sentence of unlawful sexual connection of 5 years’ imprisonment.  That offending was serious and involved entry into an adult woman’s home (she being a stranger), who you sexually assaulted and subjected to threats to rape, and physically beat her.  She was disabled, a fact known to you.

[12]     I have read the sentencing notes of the Judge on that occasion.  Her Honour made the following observations and I quote:

“The psychiatric report that I have reveals persistent and ingrained aberrant sexual   behaviour,   mild   intellectual   handicap   and   social   retardation. Attempts at curbing that aberrant sexual behaviour have not been successful and you continue to present with a significant risk of re-offending.”

And further:

“Your history obviously gives cause for concern and demonstrates the need to protect the public from your future conduct.

The psychiatric report indicates you presently pose a significant risk of re- offending.     The  psychological  report  notes  a  pattern  of  re-offending following participation in treatment programmes and the risk of re-offending for you remains high.

Based on all of this, being your own account of your past, I consider you do pose a real risk to the public and this feature should be taken into account.”

[13]     The Judge strongly recommended that during that five years sentence you be placed in a residential treatment centre such as Kia Marama, that is for sexual offenders against children and woman.

[14]     During your sentence, you attended a programme at Kia Marama but failed to complete it.  You were released on parole, but I note that towards the end of that time you breached parole conditions because you were in the company of a child aged 16 years.

[15]     Before the Sentencing Act 2002 was passed, the principles applicable for imposing preventive detention were well known and dealt with in R v Leitch [1998]

1 NZLR 420 (CA). They still remain relevant considerations. In terms of s 89(4) of the Sentencing Act 2002, the Court must take into account:

a)       any pattern of serious offending disclosed by your history;

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

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

d)the absence or failure of efforts by you to address the cause of your offending;

e)        the principle that a lengthy finite determinate sentence is preferable, provided it gives adequate protection to the society.

[16]     Clearly preventive detention has as its main purpose prevention, rather than it being punitive, although its indefinite and open-ended nature often is seen as involving punishment.   It is only invoked to protect the community from further serious offending.  It is always a matter of discretion for the Court, but it is not a sentence of last resort.

[17]    The Court must have two psychological or psychiatric reports about the likelihood of your committing a further qualifying sexual or violent act.  They have been provided, together with a report by a psychologist engaged by your counsel. They all make troubling reading.

[18]     Obviously,  psychologists  and  psychiatrists,  no  more  than  Judges,  cannot predict the future.  Some psychiatrists and psychologists are skilled at making risk assessments based upon statistical measures and tests, as well as on dynamic facts, that is facts which relate to the individual.  Those sort of tests are well known to the Court which often has to consider them when dealing with Extended Supervision Orders.

[19]     The psychological reports before the Court record that you had a significant history of sexually inappropriate behaviour as a child and adolescent.  You have a poor understanding of the potential effects of your sexual offending upon the various victims in the past.  There had been an escalation in the severity of offending, despite detection and sanctions which indicate and I quote “an entrenched pattern of sexual misconduct”.   You attended a STOP community-based programme for adolescent sexual offenders in 1997 but did not complete the programme.

[20]     Whilst undergoing treatment at Kia Marama, your motivation appears to be questionable and the Parole Board had an order to hold you in prison beyond your statutory final release date which reflected concern of the risk of further sexual offending.

[21]     The treatment progress for you at Kia Marama was “minimal” and you were ultimately removed  from  the  unit  following  sexually  inappropriate  contact  with

another prisoner.   Some pharmaceutical intervention was attempted whilst at Kia

Marama but you discontinued this after your release.

[22]     One  psychologist  says  your  compliance  with  supervision  and  release conditions has been poor, and you re-offended soon after your sentence ended.

[23]     You have no mental disorder but clearly have sexual impulses, which you do not control and they produce a proclivity for sexual offending.  One psychologist has expressed the view that you have minimised your earlier sexualised behaviour and you have a high level of sexual drive.

[24]     Using the statistical tests to which I have referred and which are well-known, (that is the Static–99 and the ASRS), as well as assessments on the stable dynamic factors (that is the STABLE 2007) tests, you are assessed at having a high risk of further sexual offending.  You are described as having a poor insight into the risk you present and the opinion is expressed that:

“There is evidence [you] will use serious violence to achieve sexual goals….[a psychologist] opinion is that [you] present with a high risk of sexual and violent recidivism and based upon [your] known history [you] present a risk to both children, males and females and adult females whom [you] regard as strangers.”

[25]     One psychologist concludes:

“Despite multiple interventions, including supervision, group and individual therapy, medication and punitive measures, Mr Jellyman’s pattern of sexual misconduct has persisted.  His failure to take responsibility for the current offending…reflects a distorted view of sexual relationship whereby he sees consent as implied unless explicitly and forcibly denied.  There is evidence he will persist even where such non-consent is explicitly given.

It is the writer’s opinion that Mr Jellyman is unable to safely reside in the wider community at present or for the foreseeable future.  He would require a level of supervision that is, to the author’s knowledge, not available.”

[26]     The second psychologist reviews your background in which you reported an extensive history of undetected sexual offending against male and female children. But I note your first conviction did not occur until 1997 or when you were about

15 years.  The psychologist summarised:

“The four-risk measures used in this assessment have a high level of convergence in predicting that Mr Jellyman is at a high risk of serious sexual re-offending.  Given his sexually indiscriminate history, future victims will most likely be selected based on access and vulnerability rather than relationship, age or gender.   There are no factors detected that appear to mediate Mr Jellyman’s risk at this time.”

[27]     The psychologist assesses  you at a high  risk of further sexual offending following release from prison, without successful completion of intensive psychological treatment.  Obviously, a prognosis for longer term is dependent upon whether you show willingness to engage in psychological intervention, and past treatment at the STOP and Kia Marama programmes has proved ineffective.

[28]     The third psychologist, engaged by your counsel, shares the view that you are at a high risk for sexual offending.  However, he says:

“The difference with [your] latest offence from the earlier offending is that there is a qualitative difference to it and it may signal a small shift in the desired direction of change.  Whilst [he] remains unaware of most of the risk factors  and  continues  to  place  [yourself]  into  high  risk  situations  for offending (therefore creating an ongoing safety risk to the community) [he] did not use instrumental violence in his latest offending.”

[29]     His opinion is slightly more optimistic than the other psychologists, but only marginally so.

[30]     Although  as  I  have  observed,  I  am  satisfied  on  what  you  told  one psychologist  that  you  were  intending  to  complete  the  full  sexual  act  with  this teenager but were interrupted in your intentions.

[31]     Naturally,  the  future  risk  of  a  person  offending  or  re-offending  may  be modified by events and intervention that occur in the years to come, and predictions are always difficult.  Actuarial risk measures may help identify someone belonging to a high-risk group – and that is you – but it provides little information about how that risk might alter over the uncertain period.   It is for that very reason that a preventive detention sentence may be the very instrument which ensures there is treatment  in  the  future.    If  you  were  to  engage  in  therapy  and  complete  it successfully, then the risk of re-offending at any point of release in the future is diminished.  You say you wish to do so, but given your lack of remorse and insight, I

suspect that is said because you are striving to avoid a sentence of preventive detention.

[32]     The remedy for those who commit sexual crimes is always in their own hands.  That is, to take advantage of the treatment and rehabilitative measures that are offered.  The advantage of a sentence of preventive detention is that it provides a strong incentive for an offender to undertake treatment so if it is successfully completed, release on parole, or the prospect of release on parole, is enhanced. Unless treatment and rehabilitation occurs with genuine remorse and insight into those factors which led to the serious offending, then the safety of the community dictates that such an offender remain subject to an indefinite sentence.

[33]     Now as I have said, if a finite term of imprisonment would adequately protect the community, then that is to be preferred.  In your case, the issue is what sort of finite sentence that could be imposed, based upon proper sentencing principles that was sufficiently long to protect the community.

[34]     There  has  been  some  reference,  or  there  was  some  reference,  to  the availability of the possibility of an extended supervision order which could later be obtained and that is a relevant consideration, as has been discussed by the Court of Appeal in R v Mist (2005) 21 CRNZ 490 (CA) in a finely balanced case that may be possible or a possible consideration, see R v Parahi (2005) 21 CRNZ 754 (CA).

[35]     But you do not, or would not, qualify for an extended supervision order.  That is because the crime in which you have been found guilty involved a 16 year old girl and, she not being under the age of 16 at the time of the offence, your crime does not comprise a “relevant offence” in terms of the Parole Act 2002.  Further, your other sexual crimes for which you were sentenced to five years’ imprisonment involved an adult female and that is not a qualifying offence either.  The offence committed in

1997 of unlawful sexual connection with a male under the age of 12 is a “relevant offence”, but you still would not qualify because you would not fall into the category of an eligible offender because you were not sentenced to imprisonment for that relevant offence.  The sentence then imposed was simply supervision.

[36]     As the Court of Appeal said in R v Parahi the real difficulty that faces a sentencing Judge is the prospect that if preventive detention is not imposed:

“The next victim may be “just around the corner” from a release day from prison.”

In every case, and in your case, the next victim is one too many.

[37]     All the material before me satisfies me that the community protection and particularly young women who are strangers, requires that you have an extensive rehabilitation programmes, all of which have failed in the past, and a finite sentence in my view could not meet that need.   At most, a finite sentence of seven years’ imprisonment could be imposed with a minimum non-parole period of about four years, but I do not think that would sufficiently protect the public.  I am satisfied the only measure  the  public  can  be  protected  from  your  predatory sexual  acts  and proclivities is a sentence of preventive sentence.  That is imposed in respect of both counts.

[38]     I  do  not  propose  to  fix  a  minimum  non-parole  period  greater  than  the statutory requirement – that is five years.   That simply means that you become eligible for parole only after the expiration of five years.   But the Parole Board would not grant that unless satisfied that you no longer pose a risk to the community.

[39]    If you undergo the treatment and rehabilitation programmes that will be available to you it may well be that you would be paroled after 5, 6, 7, 8 or 9 years. But so long as you continue to pose a risk to the community, you will continue to be imprisoned under the life sentence of preventive detention.

“J W Gendall J”

Solicitors:

Cameron Ross, Wanganui

Armstrong Barton, Wanganui