R v Jenkins

[2014] NZHC 1923

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-012-2754 [2014] NZHC 1923

THE QUEEN

v

ALLAN JAMES JENKINS

Hearing:	14 August 2014
Appearances:	C E R Power for Crown S A Saunderson-Warner for Defendant
Sentence:	14 August 2014

SENTENCING REMARKS OF LANG J

R v JENKINS [2014] NZHC 1923 [14 August 2014]

[1]      Mr Jenkins, you appear for sentence having been found guilty at trial on three charges of sexual violation by rape, one charge of attempted sexual violation, one representative charge of indecent assault and two charges of burglary.  In addition, you pleaded guilty shortly before a subsequent trial to a further charge of sexual violation by rape.

[2]      The maximum penalty in respect of the charges for sexual violation by rape is

20 years imprisonment. The maximum sentences for the charges of attempted sexual violation and burglary are ten years imprisonment, and the maximum sentence for the charge of indecent assault is seven years imprisonment.

Background

[3]      Your offending relates to four separate complainants.

TM

[4]      The earliest offending occurred in respect of the complainant TM, who was aged 23 years at the time of the offending.  You pleaded guilty to a charge of raping TM four days before your jury trial on that charge was due to commence.

[5]      This offending began late on the evening of 22 August 2006, when you were at the Casino in Dunedin. The victim was an acquaintance, and approached you with a request that you give her a ride home.  You agreed, and the two of you left the Casino at about 10.35 pm. As you left you told the victim she was not to tell anyone you were taking her home, or you would get in trouble with your girlfriend.  Once the journey began, you immediately began talking to the victim about sex.  You also asked her if she would have sex with you.   She told you on numerous occasions during the trip that she did not want to have sex with you.

[6]      Rather than take the victim home, you drove her to a park near St Kilda beach where you stopped the vehicle.   You then got out of the driver’s seat and walked around to the passenger side of the vehicle, where you opened the front passenger door.  You leaned in, kissed the victim and then climbed into the footwell in front of her.  After closing the door, you pulled her pants down and pulled her

underwear to one side.  You then put her legs over your shoulders and penetrated her vagina with your penis in a manner that caused her to cry out with pain.   You continued to have sexual intercourse with her whilst she continued to cry out in pain. After ejaculating, you got out of the vehicle and drove the victim home.

[7]      When the police spoke to you about the offending, you denied having had sex with the victim. You were 40 years of age at the time of this offending.  It resulted in you pleading guilty to a charge of sexual violation by rape.

JJ

[8]      JJ was 25 years of age when this offending occurred on 21 September 2009. You had met her through your work and had an intermittent sexual relationship with her, with consensual sexual intercourse occurring on about a dozen occasions.  The offending occurred one day whilst the victim  was sleeping in  a cottage on her parent’s farm.  She had not seen you for about two weeks before this incident.

[9]      The victim awoke to find you in her bedroom telling her to wake up.  You then pulled her pants down.   The victim tried to fight  you off by kicking and punching you, but this did not deter you.  You simply carried on.  You then tried to put your penis in her anus, but this was not successful notwithstanding the fact that you tried to complete the act on several occasions.   In spite of the victim’s protestations, you then put your penis in her vagina, and had sexual intercourse to the point of ejaculation.  You then aggravated the situation by demanding that the victim make you a cup of coffee.   She said you seemed “proud” of what you had done  to  her.    This  offending  resulted  in  you  being  found  guilty  of  charges  of burglary, attempted sexual violation by anal penetration and sexual violation by rape.

TS

[10]     This offending occurred between 1 March 2010 and 6 April 2010, when the complainant was 18 years of age.  By this stage you would have been approximately

44 years of age.  The victim was known to you because you were an acquaintance of her aunt and uncle, with whom she lived from time to time in Dunedin.  You would visit their house on a regular basis and, on several  occasions,  you  grabbed her

buttocks and made sexual suggestions.  You also offered to take her places to have sex, and she said that you would be jealous of her friendship with other males.

[11]     On some occasions, the victim woke up in her bed to find you in her bed.  On these  occasions  you  would  cuddle  up  to  her  in  a  sexually  suggestive  way. Sometimes she needed the assistance of her mother to help her remove you from the house.  This offending led to representative charges of indecent assault and burglary, on both of which the jury found you guilty.

SE

[12]     SE was a stranger to you.  You met her at a WINZ office in Dunedin, and offered her a lift to Gore.  She agreed, and met you later for that purpose.  During the journey south you began talking about sex in a persistent manner.  Not surprisingly, this made the victim feel very uncomfortable.  At one point you also touched her thigh with your hand. You stopped in Balclutha in order to enable the victim to go to the toilet.  You followed her into the toilet and shut the door.  Notwithstanding her protests, you then took that opportunity to insert your penis into her vagina.  Your attempts to have full sex appear to have continued for some time.

[13]     After  leaving the  toilets,  you  continued  your journey  towards  Gore.   At Pukerau, you drove to a rest area where you stopped outside a Church.  You then attempted to have sexual intercourse with the complainant whilst she was leaning against the door of your vehicle. Again, she protested and tried to get you to stop but you refused.

[14]     You then manoeuvred the victim onto her back in the front of the vehicle and again attempted to insert your penis into her vagina despite her making it clear to you that she was not interested in having sex with you.  It appears that you ejaculated at some stage during the incident.  After it finished, you drove onto Gore where the victim telephoned the police.  This incident resulted in you being found guilty of two charges of sexual violation by rape.

Sentencing Act 2002

[15]     In any case involving sexual offending of this magnitude, issues of deterrence and denunciation are to the forefront.  The sentence must hold you responsible for your actions.   It must also deter  you and others who may think like you from engaging in similar acts in the future.

[16]     It is also necessary in this context to take account of the effect that this offending has had on the victims.   I have received careful and measured victim impact statements from the victims.  These make it clear that your offending has had a profound effect on them that is likely to continue for some lengthy period in the future.  You alone, Mr Jenkins, are responsible for the harm you have caused your victims.

[17]     In reality, there are only two issues to be determined in the present case.  The first is the length of any finite sentence of imprisonment that you would receive should that be the sentencing option the Court selects.  The second is whether the Court should, as the Crown submits, sentence you to the indeterminate sentence of preventive detention.

Finite sentence

[18]     I propose first to determine the finite sentence the Court would impose on you in the event that it selected that type of sentence.

Starting point

[19]     The starting point for the charges of unlawful sexual connection must be determined in accordance with the guideline judgment of the Court of Appeal in R v AM.1   In that case, the Court of Appeal identified different bands of offending based on aggravating factors inherent in different forms of offending.  The Court then set starting points for offending within each band.

[20]     In selecting a finite sentence, I propose to first identify the starting points that the offending against each complainant would attract.  I then propose to have regard to totality principles in selecting an end starting point that properly reflects your overall culpability in relation to all the charges.

TM

[21]     I consider that the offending against TM falls within rape Band 1 identified in R v AM.  This calls for a starting point of between six and eight years imprisonment. I say that because this offending involved a single act of unlawful sexual connection. The only aggravating factor was that she was vulnerable because she was in your car and under your control.  This factor raises the offending slightly above the bottom end of Band 1.

[22]     I would therefore select a starting point of six and a half years imprisonment on the charge relating to TM.  I would deduct ten months, or approximately 15 per cent, to reflect the fact that you pleaded guilty very shortly before your trial and thereby spared the complainant the trauma of giving evidence.

JJ

[23]     This offending occurred against a background where you had been involved in a consensual sexual relationship with the victim.   Nevertheless, it contains the aggravating factor that you offended against her in the privacy of her own home after unlawfully entering it.  That is a significant aggravating factor.  This offending also contains the aggravating feature that you attempted two forms of sexual activity with the victim.  I would therefore place this offending towards the bottom end of rape Band 2 identified in R v AM.  That band attracts a starting point of between seven and thirteen years imprisonment.  I consider this offending warrants a starting point of eight years imprisonment.

TS

[24]     This  offending  was  obviously  less  serious  because  it  related  solely  to unlawfully touching the victim in an indecent manner.  Nevertheless, some aspects

of the offending make it more serious than the run of the mill charge of indecent assault.  The first is that the victim was much younger than you, and there was an element of breach of trust about the offending because you took the opportunity of offending against her through your relationship with her aunt and uncle.  In addition, some of the offending occurred when you unlawfully entered her house and got into bed with her.  As I have already indicated, offending within the sanctity of the home is an obvious aggravating factor.

[25]     There is no tariff, or guideline, judgment in relation to the charge of indecent assault because it can occur in so many forms.   Taking into account the burglary charge as well, however, I consider that an overall starting point of 18 months imprisonment on these charges would be justified.

SE

[26]     This offending is aggravated by several factors.   First, it occurred on two separate occasions during the car journey between Dunedin and Gore.  Secondly, it occurred at a time when the complainant was vulnerable because she was alone with you in the vehicle.  Given that the offending involved two separate acts of rape, I consider that it falls within the middle of Band 2 in R v AM.  I would select a starting point of ten years imprisonment on this charge.

Totality

[27]     Given that the sentencing process in the present case effectively involves the imposition of cumulative sentences, it is necessary for me to have regard to the issue of totality.  This means that I must ensure that the end finite sentence would not be out of all proportion to the overall gravity of the offending.2

[28]     The Crown submits that the Court should select an end starting point of around 18 years imprisonment to take into account all of your offending.   Your counsel submits that an appropriate overall starting point is around 15 years imprisonment.

[29]     Both counsel have referred me to a number of cases.  Where multiple victims are involved it is difficult to compare offending between cases because the circumstances of cases vary so widely.  Nevertheless, both counsel have referred me to  a  case  called  R  v  Tau,3    which  involved  sexual  offending  against  three complainants.   The sentencing Judge took starting points of eight years, ten years and ten years respectively in relation to the offending against each complainant.

That case had aggravating factors including premeditation, violence, threats of violence, vulnerable victims, detention and home invasion.   In that case a starting point of 16 years imprisonment was selected.  Your counsel submits that your offending is less serious than that in Tau.  The Crown, on the other hand, submits that the offending in your case is more serious.

[30]     I consider that your offending contains several of the hallmarks of that in Tau. In addition, four victims were involved rather than three, as was the case in Tau.  In this area of the law sentencing is not a mathematical exercise.   The starting point does not necessarily automatically increase given the number of complainants.   I consider the offending in Tau to be slightly more serious than that in the present case.   I therefore propose to adopt an end starting point of 15 and a half years imprisonment to reflect your overall culpability on all charges.

Aggravating factors

[31]     You have a significant number of previous convictions.   The only one of these that is relevant for present purposes is a charge of indecently assaulting a female under the age of 12 years in 1991.   You were sentenced to three months corrective training on that charge.  That offending occurred so long ago that I do not consider it should operate to increase the starting point I have selected.

Mitigating factors

[32]     The only adjustment that I would need to make to the starting point I have selected is that necessary to reflect your guilty plea in relation to the offending relating to TM.   The discount to be applied in respect of this factor needs to be

tempered by two matters.  The first is that you now say that you do not accept that you were guilty of the offending against TM.  You say that you only pleaded guilty in order to avoid the unpleasantness of a further trial.  Secondly, the fact that I have already applied totality principles means that it would be inappropriate to apply the full discount that would otherwise have been applied.   I note in any event that a guilty plea just four days before trial would ordinarily attract a discount of no more than around ten per cent.   I propose to reduce the starting point by six months to reflect your guilty plea in relation to TM.

End finite sentence

[33]     This  means  that  I  would  be  left  with  an  end  sentence  of  15  years imprisonment in the event that I was to impose a finite sentence.

Should a sentence of preventive detention be imposed?

[34]     This brings me to the next issue, which is whether the Court should impose the indeterminate sentence of preventive detention  rather than a finite  sentence. There is no dispute that the Court has the necessary jurisdiction to impose that sentence. The only issue is whether it should exercise its discretion to do so.

[35]     The sentence of preventive detention may be imposed where the Court is satisfied that the defendant is likely to commit another qualifying sexual or violent offence upon release after serving any sentence the Court might impose.  In deciding whether or not to impose a sentence of preventive detention, the Court is required to take into account the factors set out in s 87(4) of the Sentencing Act 2002 (“the Act”).   Having considered those factors, the Court is required to stand back and determine the manner in which it should exercise its discretion.   The underlying concern the Court is required to address is whether the defendant 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.

Section 87(4)(a): Any pattern of serious offending disclose by the offender’s history

[36]     Your counsel submits that the charges for which you appear for sentence today cannot be realistically described as establishing a discernible pattern of offending.    She points  out  that  they occurred  in  different  circumstances  and  in different ways.   In three cases, the victim was known to you.   In the fourth, the victim was a stranger.  In some cases, the offending occurred within the home.  In others, it occurred in public places and in and around your vehicle.  In addition, your counsel points out that the ages of the victims varied.  Your victims were 18, 23, 25, and 47  years of age.   Your counsel therefore submits that the Court cannot be satisfied that this particular factor points towards a sentence of preventive detention.

[37]     I respectfully disagree with this submission.  I consider your offending taken as a whole shows that you are a person who takes advantage of opportunities to offend against females who come within your sphere of influence.   It does not matter, in my view, whether this occurs because you have the advantage of knowing the victim’s family and thereby have ready access to the victim, or whether the victim comes into your grasp by fortune or coincidence.  The important factor is that you are prepared to take advantage of whatever opportunities are given to you to offend against female victims of any age.  This fact, together with the fact that you offended in a sexual way in 1991 and then again on a reasonably regular basis between 2006 and 2012, means that I am satisfied that you have demonstrated a pattern of offending for the purposes of s 87(4)(a) of the Act.

Section 87(4)(b):   The seriousness of the harm to the community caused by the offending

[38]     Sexual offending of this type causes incalculable harm to the community. First, it causes extremely serious harm to the victims themselves.  Secondly, parents and caregivers of victims of this type of offending suffer badly because they question whether they could or should have taken steps to ensure that the offending did not, or could not, happen.   They overlook the fact that only person is responsible for the offending, and that is the offender himself.

[39]     Finally, this type of offending sends shock waves through the community because females realise that they cannot trust strangers and they cannot even trust males who may be friends or acquaintances of their parents or caregivers.  Offending of this type leads to a breakdown of trust within the wider community, with all of the social implications that this entails.

Section 87(4)(c):   Information indicating a tendency to commit serious sexual or violent offences in the future

[40]     In considering this factor, I have the benefit of two health assessor’s reports, one from a psychiatrist and one from a psychologist.   In addition, I have other material that the Crown has referred to me arising out of information referred to in those reports.  The reports reveal that you had an upbringing that is most likely to have ingrained significant feelings of hostility and animosity in you. You have never known your father, and you were brought up by your mother and a stepfather who was both physically and sexual abusive towards you between the ages of 8 and 15 years.  This led to you leaving home at the age of 15.   Thereafter, you harboured significant feelings of hostility and antipathy towards your stepfather.   You also remain highly critical of mother, because you feel she failed to protect you from the sexual and physical violence inflicted on you by your stepfather.

[41]     The preparation of the experts’ reports has been handicapped to some extent by the fact that you continue to deny any of the offending, including the offending against TM in respect of which you entered a guilty plea.  You continue to either deny that the offending occurred, or to say that such sexual activity as you may have engaged in was consensual.  The psychologist surmises, however, that you are predisposed  to  feelings  of  inadequacy  and  shame  due  to  your  own  sexual  and physical abuse by your stepfather.  The psychologist considers it likely that the abuse that you suffered during a critical developmental period in your life resulted in you feeling confused about appropriate and acceptable sexual behaviours and boundaries with others.

[42]     She is of the view that the abuse by your stepfather is also likely to have modelled the role and effectiveness that coercion and violence could play in having your needs met.  She also says that the strong negative emotions that you still harbor

in relation to your mother are likely to have prompted your later hostility towards women,  and  assisted  in  the  maintenance  of  repeated  sexual  offending  against females.  Furthermore, she says that your repeated sexual offending was maintained through cognitive distortions that minimised and justified your behaviour, as well as beliefs that supported rape including a sense of entitlement to act as you please.

[43]     The psychologist  acknowledges that  your continued denial of any sexual behaviour complicates any attempt to assess dynamic risk factors.   She concludes that you remain at high risk of sexual offending behaviour in the future against both victims who are known and unknown to you.  She says that your victims are likely to be vulnerable and/or dependent on you in some way.   She notes that your sexual offending is characterised as being of both an opportunistic and a predatory nature. Her conclusion is as follows:

Based on the current evidence, Mr Jenkins is considered to be at a high risk of committing a further sexual offences against female children and adults, at least until such time as he addresses his offending behaviour in an intensive treatment programme and risk measures reflect a lower dynamic risk.  Based on his current convictions combined with the above risk assessment, Mr Jenkins is considered eligible to attend one of the Department of Corrections Special   Treatment   Unit   (STU)   Adult   Sexual   Offender   Treatments Programmes   (ASOTP)   (whilst   serving   a   sentence   of   imprisonment). However, to be accepted onto one of these programmes he would need to acknowledge at least some aspects of the sexual offences for which he is being convicted.  It is surmised that he will only benefit from the programme should his admission of culpability for the sexual offences be genuine in nature rather than acknowledging guilt only as a means to make a positive impression and gain entrance into the programme.

[44]     The psychiatrist naturally approaches the issue from the perspective of her speciality, which is psychiatry.   She notes there is no evidence that you have ever suffered from a mental disorder that would require specialist psychiatric care and treatment.  She observes, however, that you have significant psychopathic traits in your personality that would fulfil an internationally recognised classification for a dissocial personality disorder.  She says your psychopathic traits mean you have a grandiose view of yourself, a limited capacity to show remorse or guilt, a somewhat shallow effect, a lack of empathy and a failure to accept responsibility for your own actions. As a result, you may not perceive that what you are doing is wrong, and you would therefore  find  it  hard  to  understand  the  potential  consequences  to  future

victims.   This means you present a heightened risk of future offending.   The psychiatrist’s conclusion is as follows:

Mr Jenkins’ ongoing denial of the offences, lack of victim empathy, lack of remorse,   his   minimisation   and   his   previous   failures   to   profit   from experiences all increase the likelihood that his behaviours would be repeated. It would also raise a number of challenges when looking at his ongoing management, supervision, engagement and response to treatment and therefore ultimately increases his risk.

[45]   As your counsel points out, the views of the health assessors are not determinative.   The Court must make its own decision as to whether or not you present as an unacceptable risk of future sexual and/or violent offending in the community.  Nevertheless, the health assessors’ reports provide powerful support for the proposition that you present as a real risk of sexual offending in the future.  They also confirm that treatment of the factors underlying your offending is likely to be an extremely challenging task given your current denial of any wrongdoing.

Section 87(4)(d): The absence of, or failure, of efforts by the offender to address the cause or causes of the offending

[46]     You have had a number of contacts with psychologists since 1991.   The Crown  has  referred  to  me material  arising out  of the offending in  1991.   This suggests that you initially indicated that you would engage with therapeutic procedures  at  some  later  date,  but  subsequently  failed  to  make  good  on  your promise. Whatever the reason, however, I accept that you have not had the benefit of any intensive therapeutic programme designed to address the underlying causes of your offending.   Your counsel relies on this as a factor indicating that this Court should stop short at this stage from imposing a sentence of preventive detention.

Section 87(4)(e): The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[47]     This factor really speaks for itself.   It reflects Parliament’s view that the courts should sentence offenders to finite sentences, provided such sentences adequately protect the community from the prospect of future offending.   Again, your  counsel relies on  this factor as indicating that a finite sentence  should be imposed rather than a sentence of preventive detention.

Exercise of the discretion

[48]     Having considered these factors, it is now necessary for me to stand back and determine how I should exercise my discretion.  As I have indicated, your counsel points to the fact that you have never had the opportunity to undergo intensive treatment for the causes underlying your offending.   She also points out that you have never been sentenced to imprisonment before, and that it is likely that the Chief Executive of the Department of Corrections will seek an extended supervision order on your release.  This will require you to be subject to stringent supervision for ten years after you are eventually released from prison.  She submits that these factors, coupled  with  the  principle  that  Parliament  views  a  finite  sentence  as  being preferable, should deter the Court from imposing a sentence of preventive detention.

[49]     I consider several factors are significant when considering the manner in which I should exercise my discretion.  The first is that your offending demonstrates that you will take whatever opportunity is available to you to offend sexually against females.  You then deny that the offending has occurred, or you maintain that it was consensual.  Your denial is likely to stem from psychopathic traits that are deeply ingrained  within  you,  probably  as  a  result  of  the  unfortunate  experiences  you suffered within your home environment between the age of 8 and 15 years.   This means  that  you  psychological  makeup  is  such  that  it  is  going  to  be  extremely difficult for therapeutic intervention to succeed.  To have any chance of success it will require you to acknowledge your offending, and to be willing to understand the causes of it.  As matters presently stand, those are both issues with which you refuse to engage.

[50]     At present, therefore, there is little prospect that the risk you present of future offending  can  be  adequately  managed  upon  your  release  from  prison.    This  is because there is nothing in the material before me to suggest that you have any current interest in therapeutic intervention.  If you maintain that stance it will not be offered to you whilst you are in prison.

[51]     This means that if a finite sentence was imposed, you would have the ability to serve that sentence without the underlying causes of your offending having been

addressed.  This would result in you being released into the community and fulfilling the risk that the experts have identified of offending again in a sexual way against females of any age.  Unless your underlying issues are addressed, I do not consider that an extended supervision order could adequately guard against that risk.

[52]     It follows that I have reached the view that a sentence of preventive detention is necessary in the present case.  It will now be for you to determine whether you are prepared to engage meaningfully with the help that will be offered to you in prison. That  will  obviously require  you  to  acknowledge  your  offending,  and  to  accept responsibility for it.  Only if you take that step will you have any prospect of being released back into society. Your future is therefore in your own hands.

[53]     In  imposing the  sentence of  preventive detention,  however,  I propose  to impose a minimum term that would be shorter than would otherwise be the case.  I do so because my understanding is that the prison and parole authorities are not prepared to allow sexual offenders to undergo treatment until such time as they have completed any minimum term of imprisonment that the courts may impose.  If I was to impose a very lengthy minimum term of imprisonment, that would prevent you from beginning therapeutic treatment for a lengthy period of time.  I hope that this will serve as an incentive to you to engage early with therapeutic processes so that you may speed up the date upon which you are eventually released.

Sentence

[54]     On each of the rape charges, you are sentenced to preventive detention and you are ordered to serve a minimum term of six years imprisonment.  On each of the burglary charges, you are sentenced to 12 months imprisonment.   On the representative charge of indecent assault, you are sentenced to 18 months imprisonment.  On the charge of attempted sexual violation by anal penetration, you are sentenced to four years imprisonment.  All of those sentences are to be served concurrently.

[55]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Dunedin

Aspinall Joel, Dunedin