R v K HC Christchurch CRI 2003-009-6953

[2005] NZHC 46

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2003-009-006953

REGINA

v

K

Appearances: J A Farish for Crown

J R Rapley for Prisoner

Judgment:      15 September 2005

SENTENCE OF HON JUSTICE JOHN HANSEN

[1]        K     , you have pleaded guilty to a number of charges of sexual offending.  Firstly indecent assaults against a boy under 12, three counts.  Secondly, inducing an indecent act on a boy under 12.  Thirdly, sexual violation by unlawful sexual connection.  Finally, sexual violation by rape.

[2]      It is perhaps appropriate to set out the history of this offending.  In May of last year you were tried on 15 sexual counts relating to the three current victims and one other.  You were found guilty on 10 and not guilty on five.  You were sentenced to preventive detention.   In December of last year, on appeal, the conviction was quashed and a new trial ordered.  In May there were rulings on a number of pre-trial applications, including the allowing of evidence of admissions you had made during

the production of the s88 reports and the severing of the trial of the female victim

R V K  HC CHCH CRI 2003-009-006953  15 September 2005

from that of the males.   The Court of Appeal upheld the majority of the pre-trial rulings, with the exception of the similar fact evidence, and you had by then pleaded guilty to the matters outstanding.

[3]      The two male victims are brothers.  During the period of the offending you were in a relationship with their cousin.  One of the victims was aged nine to ten at the relevant time, the other was aged seven to nine over the relevant period.  There are two representative counts of indecent assault relating to incidents where you went to stay with their cousin between January 1999 and October of that year.  You would  sit  between  the  victims  and  touch  their  penises  on  the  outside  of  their clothing.   The victims also described similar events happening while playing Playstation in the bedroom, although in the case of one of the victims the touching of the penis in the bedroom occurred under clothing.

[4]      In relation to the younger victim the following counts relate to him.   The remaining indecent assault related to an incident between December 1999 and December of 2001 at your house.  The victim was made to lie on the couch with you “humping” him until you ejaculated on his stomach.   During the same period you went into his bedroom and made the victim touch your erect penis.   In about December of 2000, while at a family barbecue at Christchurch, you took this victim behind the garage, undid his clothing and licked his genitals with your tongue.

[5]      The final count relates to the female victim.  You were in a relationship with the victim’s caregiver.  The victim was making a bed at a residential home when you entered the room.  You closed the door, pulled the bed away from the wall and made the victim lie on the bed before removing some of her clothing.  You penetrated her genitalia with you penis and touched her breasts on the top of her clothing.

[6]      All of these victims have suffered in the way that one has come to expect from sexual offending of this sort.

[7]      One of the male victims suffers from sleep disturbances, headaches, anger, distrust and this has impacted on his performance at school.   He has made some

progress since 2004 but it is clear that he has internalised his feelings to a large extent and is still deeply affected by your abuse of him.

[8]      The  other  male  victim  has  also  suffered  from  anger,  anxiety,  sleep disturbances, headaches, and worse, self-harming behaviour.   He is currently undergoing counselling but he remains extremely angry and has difficulty displaying this appropriately, which is not surprising given his age.

[9]      In relation to the female victim the report shows a wide ranging and extreme impact the offending has had on her.   This includes disrupted sleep patterns, nightmares,  self-harming behaviour  and  alcohol  abuse.    The  negative  emotional effect is ongoing and her relationship with her caregiver has now broken down completely as a result of your offending.

[10]     In terms of the Sentencing Act I bear in mind the accountability for harm done to the victims and the community; promoting a sense of responsibility and acknowledgement of harm in you; denunciation; and, importantly in this case, protection of the community.

[11]     Under s8 the following principles are relevant - the gravity of the offending and the degree of culpability of the offending, and both are high in your case; the seriousness of the type of offence in comparison with other types, which is serious within  that  context;  the  desirability  of  consistency  with  appropriate  sentencing levels; the effects on the victims which I have referred to; and, if appropriate, the least restrictive outcome should be imposed.

[12]     You are aged 31 years.  You have a raft of previous offences, although for present purposes it is the previous sexual offending which is relevant.  In April of

1996 you were convicted of indecent assault on a boy under 12 years and sentenced to six months imprisonment.   In 1997 you were convicted of two counts of indecencies on boys under 12 years and sentenced to three months imprisonment cumulative on one month’s imprisonment for other offending.  In July of 2001 you were sentenced to one count of indecent assault on a boy under 12 years when you were sentenced to two years imprisonment, and you were also convicted on one

count of offensive behaviour.  The other offending, for dishonesty, I intend to place aside for current purposes because, as both counsel acknowledge, the real issue here is whether the Court should impose a lengthy finite sentence or one of preventive detention.

[13]     The Crown submit  that  preventive detention  is  appropriate in  your  case. They say that it is clear that your offending continued after your arrest and while on bail for other offending.   They accept that while there are some indications in Dr Earthrowl’s report of progress and a reduction in risk, and some positive comments arising from the Kia Marama programme, notwithstanding that they submit there are significant indicators here of continuing risk to the community and a high risk of re- offending.

[14]     The Crown point to a number of factors, including your continual denial of raping the female victim; the fact that initially you denied offending against these boys; you then admitted it in the course of report preparation; you retracted that admission and took legal steps to prevent such evidence being given against you before you finally pleaded guilty and acknowledged your responsibility.

[15]     The Crown say the report writers, while saying that further treatment may reduce risk, indicate the risk of further offending ranges from high in the case of two report  writers,  and  not  extreme  in  the  case  of  Dr  Earthrowl.    They do  accept, however, that this matter, because of the unknown factors arising from the effect of the Kai Marama course, is finely balanced.

[16]     On the other hand, your counsel submits that is a case where a finite sentence is more appropriate.   Mr Rapley on your behalf has pointed to the fact that your previous offending, while serious, is not as serious as many cases that come before the court where preventive detention has been sought.  He also points out that in this case a lengthy finite term of imprisonment would be the first long term of imprisonment you have served, and if this is coupled with further programmes then the risk is not so great.

[17]     Turning to these reports, the psychiatrist in the latest report notes that due to your remand in custody there was little change in your situation.  You accepted the offending against the males but denied the offending against the female, merely saying that your guilty plea in this regard was to move the legal process along.  The psychiatrist, along with other report writers, notes, as Ms Farish stressed in submissions, that despite your letter of remorse you really show little empathy or understanding of your offending or of its effect on your victim.  It is apparent that you have suffered sexual abuse in your past.  The psychiatrist expressed the clinical opinion that he was unable to accurately assess the risk in the future, but he did not put your re-offending in the extreme and said that any such risk can be further reduced by treatment programmes which  you have indicated  you are willing to complete.

[18]     In a previous report, prepared in 2004, your risk of re-offending was assessed as significant but the psychiatrist saw the completion of the Kia Marama programme and your willingness to undergo further treatment as possible risk reducers.

[19]     Turning to the psychological report, again it was an updated report.   You disclosed that you had recently rekindled your relationship with the cousin of the male victims and you planned to meet.   Your offending against the boys was characterised  as  being  opportunistic  in  nature  but  you  continued  to  deny  the offending against the female.  The psychologist noted the Kia Marama programme appeared to have some positive impact on your thinking and behaviour, but there remained a number of concerns.  Of particular importance for current purposes, is that although the involvement in Kia Marama occurred after the current offending you had not at that stage been charged for the offences.  That means that the offences probably did not form part of the treatment.  The psychologist noted also that your empathy and remorse were limited and you tended to minimise your offending.  It was also the view of the report writer that you were withholding some information. He accepted a shift in thinking since you completed the Kia Marama course but there had been no opportunity for you to demonstrate this in the community.   He said while there were some positive factors, such as involvement in adult relationships, the ultimate conclusion he formed was that until further treatment was received there

was  a  possible  risk  of  you  re-offending  that  is  towards  the  higher  end  of  the spectrum.

[20]     The pre-sentence report is also an updated report.  You acknowledged your guilt in respect of all six offences and did not dispute the summary of facts.  You purported to be remorseful and acknowledged the need for help, but the report writer did not feel that you had any real understanding of the effects of this offending on the victims.  The writer assessed your lack of intellectual skills as hampering your success in both the Stop programme and Kia Marama.

[21]     In this case there are a number of aggravating features, and to some extent they have been covered.  There is an abuse of trust given the fact that you were in a relationship with the female victim’s caregiver and with a cousin of the male victims. The victims were particularly vulnerable because of their age and your position in relation to them.   There are your previous convictions of a sexual nature; and the damage to the victims that I have highlighted and I have referred to the victim impact reports.

[22]     As to mitigating factors; remorse is claimed both in the pre-sentence report and in your letter, but it is unclear exactly how genuine that is given, particularly, your failure to empathise in any way with  your victims.   There must be some recognition of the guilty plea but following the history of this matter it will not be as significant as normal.

[23]     This is a finely balanced case.  Although you were sentenced to preventive detention in 2004 following your first trial, that followed a trial involving 10 counts of sexual offending compared with the six you have now pleaded guilty to.  There are some factors that point strongly to a sentence of preventive detention being appropriate.     These  include  the  obvious  escalation  in  the  seriousness  of  the offending, and the Crown has highlighted that this occurred over a relatively short period; the number of victims; the harm the offending has caused; there is certainly a risk you will re-offend in a similar manner which ranges from not at the extreme end to high; and there is the lack of empathy and genuine remorse.

[24]     There is also the continual denial of the offending against the female victim. That acquires some significance, in my view, because  you have detailed to the probation officer this offending, how it occurred and your thoughts at the time.  It is a little bit  like the situation  in  relation  to  the males  that  at  first  you  made  an admission, retracted it, and then made further admissions and pleaded guilty.  Here you have given a detailed account to one report writer, pleaded guilty to the offence, then denied the offending to the psychologist and the psychiatrist when they interviewed you in preparation of reports.  It seems to me to indicate quite clearly that you are still in denial in relation to this type of offending, and have little insight into your offending, how and why it occurs.

[25]     I  must  weigh  against  the  factors  I  have  just  mentioned  that  you  have undergone the Kia Marama programme and that there has been no opportunity to assess the impact of it on your behaviour in the community.  You were recalled, as the Crown properly points out, because almost immediately you placed yourself again in a position of high risk.  That is another factor that I must take into account.

[26]     Both the s88 reports emphasise that if you undertook further treatment the risk would be reduced.

[27]     Under the relevant section the Court must consider the pattern of serious offending.  I accept Mr Rapley’s submission that your offending was not of the most serious kind previously, but it was serious.   The significance of the pattern of the offending is the very rapid escalation of it.  You inveigled yourself into relationships and then committed sexual offending against relatives and people in the care of those you were having the relationship with.  That is a very serious escalation and it is a matter of some serious concern.

[28]     The offending has caused great harm to the victims and they may never fully recover from the effects of it.  It is something which you should probably be aware of yourself because you maintain you were abused.

[29]     Information indicating a tendency to commit the offences in the future is present  in  this  case.     The  Kia  Marama  report  writer  indicates  it  is  high,

notwithstanding the course and some positive signs.  The psychiatrist does not place it quite so highly.  The psychologist places it as a high risk, as does the probation officer.

[30]     To that must be added the factors that I have set out above that I will not repeat, other than to say you continue to be, to a significant degree, in denial of your offending, with little insight into the effects on your victims or the offending itself. In my view that places you at a high risk of re-offending.

[31]     You have undertaken the Kia Marama programme and you have indicated a willingness to undertake other courses.

[32]     Finally, there is the principle that a lengthy determinate sentence is preferable if it provides adequate protection to society.

[33]     Regrettably, for all of the factors I have set out above, I have concluded that a lengthy finite sentence in this case is not adequate for the protection of society.  You pose a significant and ongoing risk to the members of the community.   This is indicated for all of the reasons that I have set out.  Accordingly, on the charges you are sentenced to preventive detention.  You are ordered to spend a minimum non- parole period of six years which I think adequately reflects the gravity of the offending in this particular case.

[34]     I direct that the s88 reports be made available to the Corrections Department to enable them to assist you in ongoing attempts at rehabilitation.