R v Kelly

[2012] NZHC 1371

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

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-041-3059 [2012] NZHC 1371

THE QUEEN

v

DAVID WILLIAM KELLY

Hearing:         18 June 2012

Counsel:         J E Rielly for Crown

N C H Hewat for Prisoner

Sentence:       18 June 2012

SENTENCING NOTES OF DOBSON J

[1]      Earlier this year you pleaded guilty at the earliest opportunity to one charge of unlawful sexual connection with a child under 12 and five charges of doing an indecent act on a child under the age of 12.   The first of these convictions has a maximum penalty of 20 years’ imprisonment, and each of the others a maximum of

10 years’ imprisonment.

[2]      The District Court declined to deal with you on the basis that there was a prospect that you ought to be sentenced to preventive detention, which sentence

would have to be imposed in this Court.

R v KELLY HC NAP CRI-2011-041-3059 [18 June 2012]

[3]      In  anticipation  of  considering  a  sentence  of  preventive  detention,  two specialist reports, one from a psychiatrist and one from a psychologist, have been prepared, and I have read them, in addition to the pre-sentence report which was prepared in February 2012.

[4]      Having read all the material available and having carefully considered the submissions made in relation to your convictions, I have decided not to impose a sentence of preventive detention.  I will instead be sentencing you to a substantial term of imprisonment, to be served on terms requiring a finite minimum non-parole period.   There are quite a number of considerations involved in reaching those outcomes, and I need to review all those that are relevant in reaching the conclusions that I have.

[5]      Your offending involved three young girls, aged four or five at the time of your offending.   All of them are your partner’s [relatives].   [Further comment on relationship omitted.]   You had regular contact with the first victim through your family connections and in the course of playing with her, attempted  to, and on occasion were successful in, touching her vagina over her clothes.  You showed that victim a pornographic video involving scenes of females masturbating and acknowledged that if that first victim had not objected to your touching her vagina, you would have continued on other occasions.

[6]      Your second and third victims are twin sisters. Again, your contact with them was through family connections. You were trusted to spend substantial periods alone with them, and on one occasion up to a whole day, and began a pattern with one of those girls of rubbing your hand against her underwear.  That progressed to touching her skin under her underwear, directly against her vagina.  On one occasion when you had both girls out in the van and the third victim had fallen asleep, you placed the second victim in the front seat of your van, removed her underwear and made attempts to lick her vagina which you did, and that did occur two or three times. That conduct results in the more serious conviction for unlawful sexual connection with a child under 12.

[7]      A few months later, you again took both the second and third victims for a drive in your van and, after parking in a secluded spot, showed them a pornographic video that ran for three or four minutes.  On that day you gave each of the girls a small vibrator that you had bought from a sex shop in Auckland.   You put the vibrator inside the underwear of each girl and, with the vibrators touching their vaginas, turned them on.   During the visit to the family of the second and third victims in which that occurred, there was also further offending with your rubbing the vagina of victim two, and then doing the same thing to victim three after, on your account to the Police, she had asked that you do with her what you were doing with the second victim.   The third victim described the rubbing of her vagina as being very hard and that you had also touched her anus with your hand, although you dispute this last part of her account.

[8]      The victim impact statements I have read from parents of the victims are heart-wrenching.   From the parents’ perspective, there are entirely understandable sentiments of anger and betrayal, and concerns that the abuse of their daughters will leave  them  overly protective  as  parents  of  their  daughters  and  subject  to  other stresses in their parental relationships.  Although the parents recognise that it is too early to assess the long-term harm done to their daughters, they have justifiable concerns  that  the  girls  may  be  permanently  maladjusted  by  inappropriately sexualised behaviour in their pre-pubescent age, and worrying feelings of guilt that the girls are somehow responsible for the bad things that they were involved in.

[9]      A term of imprisonment is inevitable.   The first stage in my analysis is to consider what an appropriate finite sentence would be.  At the outset, I am to have regard  to  the  purposes  and  principles  of  sentencing  under  ss 7  and  8  of  the Sentencing Act 2002 (the Act).   I have particular regard to the need to promote accountability, promote a sense of responsibility and acknowledgement of the harm done, and to denounce your conduct and to deter others.[1]    I also have regard to the need to protect the community, bearing in mind that that consideration takes on a

[1] Section 7(1)(a), (b), (e) and (f).

particular focus where, as here, the Crown has raised the prospect of preventive

detention which has, as its separate purpose, the protection of the community from those who pose a significant and on-going risk.[2]

[2] Section 7(1)(g), s 87.

[10]     In terms of the principles of sentencing under s 8, I have to reflect the gravity of your offending, the seriousness of this type of offending as against other types, the need for consistency and the effect of your offending on the victims.  Ultimately I am   to   impose  the   least   restrictive   sentence   that   is   appropriate   in   all   the circumstances.[3]

[3] Section 8(a), (b), (e), (f) and (g).

[11]     You are for sentence on six convictions involving three victims.  That raises the prospect of sentencing you either concurrently on all of them, or cumulatively in respect of different victims or different occasions.   Here, I treat your offending as being of a similar kind and involving a connected series of offences and I will therefore impose concurrent sentences under s 84(2) of the Act.  In doing so, I will focus on the conviction for unlawful sexual connection as the lead or most serious offence, and after setting the sentence appropriate to that offending, consider the need for an uplift of it by taking into account the overall seriousness of the totality of your offending.

[12]     As you will have heard, the Court of Appeal has provided guidelines for sentencing in sexual offending in the case of R v AM.[4]    That judgment identified three bands of relative seriousness of such offending.   It also sets out a list of

11 factors, some adapted from criteria in the Sentencing Act and others seen as relevant in cases where they arise to gauging the relative seriousness of sexual offending.

[4] R v AM [2010] 2 NZLR 750.

[13]     Touching  on  the  factors  that  I  consider  help  categorise  the  relative seriousness here, the first is planning and pre-meditation.  I find that was present to a relevant degree.  You purchased two vibrators in Auckland, anticipating their being used with victims two and three when you subsequently visited Hawke’s Bay.  You also describe having vetted a range of pornographic videos before deciding on the

videos that you showed to the first victim on one occasion, and the second and third

on another.   In other respects, it is not possible to be definitive as to whether the offending was planned or just opportunistic.

[14]     The next factor is the vulnerability of your victims.  Although it is always present with victims under 12, these young girls were all highly vulnerable.  The gap in age between you was large, and where you were able to exploit the girls in circumstances where you had them on your own they were especially vulnerable.

[15]     As to the extent of harm to the victims, the offending seems all to have occurred without any on-going physical harm.  It is premature to quantify the extent of psychological and emotional harm which will no doubt be an on-going worry for the girls’ families.   They have demonstrated sexualised play, bad dreams and unjustified feelings of guilt which inhibit their normal socialising.   Experience in such matters suggests that there is, at the very least, a real risk of longer-term difficulties with their emotional adjustment and social behaviour.

[16]     A breach of trust is a further separate factor that was clearly present here. Your family connection with all the girls’ parents meant that their guard would have been completely down, to an extent that you had unsupervised access to the girls on your own.  The terms of the victim impact statements demonstrate how keenly the parents of your victims feel an absolute breach of trust and betrayal.

[17]     The  degree  of  violation  is  another  factor  and  I  accept  that  here  it  was relatively low.

[18]     The presence of these factors, and the extent to which they were present, influences the band of differing lengths of sentence into which sexual convictions should go, on the guidelines provided by the Court of Appeal in R v AM.

[19]     Here, the Crown suggests that the offending is at the lower end of the most serious, band three.  The range of starting points contemplated for that is between nine and 18 years, and that leads the Crown to suggest a starting point of around nine years’ imprisonment.  On your behalf, Mr Hewat would place the offending in band

two which has a range of four to ten years, and he suggests a starting point of eight years is appropriate.

[20]     Those starting points have been suggested to me in respect of the totality of your offending, not just the lead offence.

[21]     If a starting point is considered only for the most serious conviction for unlawful sexual connection, I would fix a starting point somewhat above six years, say, six and a half years.  In arriving at that length of sentence, and in weighing the uplift that I think would be needed to reflect the totality of the offending represented by the other five convictions, I am mindful of the caution against double-counting: your conduct in offending in this way reflects a number of the factors and that is also

inherent in having regard to the number of convictions and the number of victims.[5]   I

am, in the end, satisfied that your overall culpability for these convictions would take the starting point up to nine years’ imprisonment, having regard to all the features of your offending and without double-counting.

[5] Compare Baldwin v R [2010] NZCA 472 at [14].

[22]     In settling on a starting point and the extent of uplift, I have had regard to the examples cited by counsel and by the Court of Appeal in R v AM of cases at the higher end of its band two and the lower end of band three.[6]

[6] At [118], [120].

[23]     Dealing with the matter as a finite sentencing, I next have regard to any aggravating or mitigating circumstances that are individual to you as the offender. The most significant of those is your entitlement to a substantial discount for the very early guilty pleas.  That is a factor that not only saves the Court and the system time, but of course is also a source of relief to your victims.  So as agreed between counsel and without having regard separately to remorse, I am satisfied you are

entitled to a 25 per cent discount on account of the early guilty pleas.[7]

[7] Hessell v R [2011] 1 NZLR 607 (SC).

[24]     Remorse for your victims can qualify as an additional mitigating factor where it is genuine as contemplated by the Act, so that you identify with the harm done to

the victims, accept responsibility for it, and genuinely express regret for it.  In your

case, I am bound to say there are worryingly mixed signals.   In explaining your attitude  to  your  offending,  you  are  inclined  to  deny that  you  got  any  personal pleasure out of it, and instead suggested that you were doing it for the girls’ benefit. You went so far as to complain that abusing the second and third victims more or less contemporaneously was hard work.  In the final interview with the psychologist, Ms Berry, there was an outburst suggesting you may have been better to rape and kill the victims, and that report has a theme of your being self-absorbed and concerned for the consequences of your offending on yourself, rather than genuine concern for the victims.  I do acknowledge, although it is not directly relevant to remorse, that you have recognised that this is a medical condition and you have taken personal initiatives by seeking counselling.

[25]     Since the first of those reports, you have persuaded your counsel that you demonstrate real remorse for the victims and I have seen the letters that you have written to that effect.   Mr Hewat has urged this morning that this is a form of remorse that qualifies under the Act for an additional discount of up to 10 per cent.

[26]     On the other hand, one of the victim impact statements cautions that any expression of remorse is not likely to be genuine.  I cannot be entirely persuaded by that, but balancing all these matters as best I can, I am not persuaded this is remorse in the sense that has to exist before I can have regard to it under the Act.  I do not, by that, belittle any mental state you have got now that you have treated as remorse, and it may be in a limited sense.  And it is not to dismiss the prospects of your having genuine remorse in the course of your rehabilitation, and that can be hoped for, particularly if you get into corrective programmes in prison.

[27]     There are no other mitigating factors that are relevant.  Accordingly, from a starting point of nine years, the 25 per cent deduction for your early guilty pleas would reduce the sentence to six years and nine months.

[28]     Before considering the ramifications of a finite sentence of that length, I need to consider the prospect of a sentence of preventive detention.   Your convictions

qualify you for such a sentence and the steps that have to occur before it can be imposed have occurred.[8]

[8] Criteria under s 88of the Act – notification to the offender and production and consideration of two reports from health assessors.

[29]     To impose preventive detention, I have to be satisfied that you are likely to commit another qualifying sexual or violent offence if you are released at the expiry date of a finite sentence that would be imposed.[9]    That issue is addressed in the reports  from  Ms Berry,  the  clinical  psychologist,  and  Dr Young,  the  consultant psychiatrist.  Those are thorough and helpful reports, but in the view I have come to, it is unnecessary for me to make detailed reference to their analyses.   The psychologist’s conclusion was:

Mr Kelly is estimated as being at least moderate-low risk of committing further sexual offending.  While his estimated risk would not usually warrant attendance  at  a  Child  Sex  Offender  treatment  programme,  concerns  are raised  regarding  Mr Kelly’s  continued  deviant  sexual  interest  in  pre- pubescent girls, which is likely to remain unchanged in the absence of intervention.     Given  this,  and  his  expressed  motivation  to  engage  in treatment, should Mr Kelly receive a custodial sentence, this would warrant attendance at an intensive group intervention in the prison (ie Kia Marama or Te Piriti Child Sex Offender programmes), to which he could subsequently be referred.

[9] Section 87(2)(c).

[30]     The psychiatrist’s conclusion was:

In my opinion David Kelly’s offending occurred in specific circumstances that are unlikely to re-occur in the future.  Furthermore, he is, in my opinion, likely to engage in therapy aimed at rehabilitating sexual offenders and may be successful in this rehabilitation.  I am therefore of the opinion that there is a lower likelihood of his committing further sexual offences of this type.

[31]     I trust that if you have not already seen the reports, you will be given an opportunity to do so.

[32]    Applying the conclusions of the experts in the context of all the other information available to the Court, I cannot dismiss a likelihood of your committing further sexual offending on release.  However, I cannot rate it at anything like a high likelihood, and the fact that the jurisdictional requirements are only just made out

influences my approach to the remaining considerations under s 87(4) of the Act.

That section requires me to take into account any pattern of serious offending in your history when, in your case, there is none.   I have also to take into account the seriousness of the harm to the community caused by the offending.  Offending such as yours is always a cause of serious harm to the community when the relative youth and number of victims is taken into account.

[33]     The next consideration under s 87(4) is information indicating a tendency to commit serious offences in the future, and in that regard I have the two experts’ reports.  Next, I am to have regard to efforts by you to address the causes of your offending.  You have, as I have said, demonstrated a willingness to seek counselling. Although it does not constitute remorse in the technical sense under the Sentencing Act, it is an encouraging sign and you ought to be given an opportunity to pursue that on a basis that your determination to do so has been taken into account as a factor lessening any justification there might be for preventive detention.

[34]     The last of the specific considerations under s 87(4) is that the Court should treat lengthy determinate sentences as preferable to preventive detention, if they can provide adequate protection for society.   In the end, I am satisfied that that is the case, and on an evaluation of all these considerations as they apply to your case, I am not satisfied that a sentence of preventive detention is warranted.

[35]     Reverting, therefore, to the terms on which a finite sentence is to be imposed, the next consideration is whether a minimum period of imprisonment is warranted. The prospect of the imposition of a minimum period is provided for in s 86 of the Act.   I have to consider whether, if I did not do that and you became eligible for parole  on  usual  terms,  the  length  served  would  be  insufficient  to  hold  you accountable for harm done, to denounce the conduct involved in your offending, to deter others and to protect the community.  If there are such concerns to an extent that I consider justifies imposition of a minimum period, then it cannot be more than, in your circumstances, two thirds of the full term.

[36]     In reflecting on these considerations, although I remain satisfied the sentence of six years and nine months’ imprisonment is the correct one on a comparative basis, the prospect of parole on usual terms would nonetheless dilute the impact of

that sentence too far.  It may be unusual that you present as a first offender for such serious sexual offending at 62, and incarceration beyond your mid sixties ought to have diminishing relevance on these considerations.  As with other aspects of my sentencing, I have to be mindful of the need for consistency and the Court of Appeal has acknowledged this, particularly in relation to prolonged sexual offending, recognising the appropriateness of minimum periods imposed for 60 per cent of a

determinate  sentence.[10]    In  your  case,  I  am  imposing  a  minimum  period  of

imprisonment of four years which amounts to marginally less than 60 per cent of the total end sentence of six years and nine months.

[10] See Webster v R [2011] NZCA 141.

[37]     Mr Hewat’s submissions ended with an acknowledgement on your behalf that you would welcome an extended supervision order.  That is a procedure available under Part 1A of the Parole Act 2002, to provide for extended supervision after your release from prison. As matters presently stand, your appreciation of that prospect is potentially encouraging as a matter of rehabilitation, and on your present situation it seems a likely prospect.  However, it is not something that I can address at this time. It will be for the Chief Executive of the Department of Corrections to make application at the appropriate time towards the end of your sentence.  It is perhaps more important at the moment to reiterate the observation that I have already quoted from the clinical psychologist, of the desirability that you attend an intensive intervention programme of counselling whilst in prison, and I would add that I consider such a programme to be appropriate sooner rather than later.

[38]     Mr Kelly, you are sentenced to concurrent terms of six years and nine months on all convictions. To the extent that my authority is required, I authorise the Crown, with your consent, to release to the families of the victims the letters you have written to Mr Hewat about the offending.

[39]     I am also obliged to give you what is popularly called a three strikes warning. You will get a version of this in writing, but you have been convicted of a serious offence that justifies the giving of such a warning.  Now, if you are convicted of any serious violent offence hereafter, except murder, committed after you receive this

first warning, you will receive a final warning.  In addition, if the Judge imposes a

sentence of imprisonment for that offence other than life imprisonment for manslaughter or preventive detention, then you  will serve that sentence without parole or early release.  If you are convicted of a murder committed after you receive this warning, you will be sentenced to imprisonment for life. You must serve the life sentence without parole unless it becomes manifestly unjust for that to happen.  If you receive a life sentence without parole, you will not be released from prison.  If serving the sentence without parole would be manifestly unjust, the Judge must specify the minimum term of imprisonment that you will serve.

[40]     I do not expect you to take all of that in, Mr Kelly, and therefore you will get a written version of it.

[41]     You may stand down.

Dobson J

Solicitors/Counsel: Crown Solicitor, Napier

N Hewat, Napier for Prisoner