R v King

[2013] NZHC 3362

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-009-004147 [2013] NZHC 3362

REGINA

v

LAISON REIHANA KING

Hearing:                   13 December 2013

Counsel:                  AMS Williams for the Crown

R A Peters for Mr King

Judgment:                13 December 2013

SENTENCING REMARKS OF PANCKHURST J

Introduction

[1]      I am not going to impose a sentence of preventive detention and I am going to explain why that is in a moment, but as Mr Williams has just said and Mr Peters has accepted, you have to be sentenced to prison for a reasonable lengthy term.

[2]      Mr King you are for sentence today on five charges of burglary, two of indecent assault and one of theft.  You entered pleas of guilty to those charges in the District Court on 13 May.  A Judge in that Court ordered the preparation of health assessors’ reports because it was considered that a sentence of preventive detention may be appropriate.  Eventually however, on 6 November you were committed to this Court for sentence because the reports by then obtained, did leave the door for

preventive detention open.

REGINA v KING [2013] NZHC 3362 [13 December 2013]

The facts of your offending

[3]      On the night of 2-3 April last, you forced entry into a residence by breaking a window.   You stole electrical items to a value of almost $2,500.   I infer that the occupants were absent at the time.

[4]      A few days later on 5 April you entered another house and again stole items, this time to a value of $2,700.  A week or two later on 17 or 18 April you went to another residential house and stole a bike that was parked to the back of the property. That gives rise to a charge of theft as compared to the burglary charges in relation to the previous two matters.

[5]      On 17 April in the early hours of the morning, between 4.00 and 6.00 am, you committed a further burglary on an address in Hillary Crescent.  The front door had been left unlocked. You entered and located items to a value of about $1,000.  Worst still however, you went into a bedroom at the address where there was a six year old girl asleep.   You lifted up the covers to the bed and touched her on the leg, she screamed and you ran off.

[6]      Two days  later,  at  about  5.00  am  you  committed a further burglary and indecent assault, this time on an address at Ballantyne Avenue.  You entered through an open window.  You located a laptop and a wallet, valued at about $250.  Again you went into a bedroom at the address and on this occasion you encountered a

16 year old girl who was asleep.  You touched her leg, she woke up and you asked if you could get into bed with her.  As soon as she appreciated you were an intruder, she screamed and again you ran from the house.

[7]      Three days later on 22 April, you returned to the Hillary Crescent address, the same house as you had entered some days earlier.  You tried the door again, but it was locked. You were then observed by an adult occupant of the address who alerted the police, you having made off in the meantime, but you were located nearby.

[8]      You admitted what you had been up to when spoken to by police officers. What  emerged  as  a  result  of  your  interviews  with  the  police  is  that  you  had committed this spate of burglaries near to where you were then residing.  It was an

obvious pattern.   Late at night, or in the early hours of the morning, you were walking around the general area, casing residential properties to find preferably an insecure address that you could enter.   You typically entered through a door, or a window and twice of course you went into bedrooms and endeavoured to engage with a young girl or a young woman.  This sexual element of the offending did not occur by chance.

Victim Impact Statements

[9]      It also had serious impacts.  I have victim impact statements from both of the victims who, unsurprisingly, have been affected by these events.  They were terrified upon waking and finding that, in the dead of night, you were in their bedrooms. Both of them have experienced sleeping problems, the older girl has encountered study problems, she being a year 11 student with exam commitments.  The father of the younger girl has spoken of the difficulty that he has in facing the fact that he was unable to keep his own daughter safe, while she slept in her home at night.

Personal circumstances

[10]     Mr King, you are 25 years of age.   You have, on my count, 18 previous convictions,  including  four  for  burglary,  two  for  indecent  assault  and  one  for unlawful sexual connection.   It is the combination of the burglaries  and sexual offending which is of particular concern.  After the District Court ordered the preparation of s 88 reports, and having read as well your pre-sentence report, I have a wealth of information about you available to me.

[11]     A complex situation is disclosed.  I acknowledge that you have had a very difficult upbringing.  Both of your parents had difficulties with substance abuse and they were unable to care for you.  You were placed initially with your grandmother, but she died a few years later.  You were then placed with an aunt and an uncle, and tragically you lost your aunt, she died a few years later.  The uncle persevered with your care until 2004 when you were about 16, and you were then sent to Auckland to other relatives.    By then  you  were  beset  with  a number of problems  including abusing substances, some mental health problems probably borne of your addiction

problem, and sexual deviancy had also reared its ugly head, an aspect to which I will return in a moment.

[12]     A few years on you returned to the South Island and in March 2008 you were sentenced in the Timaru District Court to three years and four months imprisonment. That was in relation to burglaries and other dishonesty offending, but also the two indecent assaults and the unlawful sexual connection, to which I have already referred.

[13]     Those sexual crimes occurred in the context of burglaries.  On one occasion you entered a house and encountered a man who was in his eighties, who was asleep in bed.  He initially thought you were a family member.  You got into the bed with him, commenced to assault him, there was a struggle and eventually you left.

[14]     In the course of a further burglary you entered a house occupied by a mature couple.  The man was asleep downstairs in a chair, you went to a bedroom where his partner was asleep in bed.  You both indecently touched her and digitally penetrated her before she woke and became aware that there was an intruder in her bedroom.

[15]     Following the imposition of that sentence you were released to Salisbury Street Foundation in September 2010, at about the time of the first earthquake.  You absconded from there and entered into a relationship with an adult woman.   You were in breach of your parole conditions, recalled to serve the balance of your sentence and you were not ultimately released again until July 2012.

[16]     It was only about nine months later that you committed this further spate of offences in April of this year.  In the meantime you had been in a relationship, living with a woman and her two children.  Indeed she had become pregnant to you with a child who I assume was born recently.   You had also encountered problems, both financial and with substance abuse again.   On top of that, your sexually deviant behaviour had resurfaced.

[17]     As you are aware the key issue in relation to your sentencing today was whether  your offending  could  be met  with  a finite,  or fixed  term,  sentence,  or

whether preventive detention was the necessary outcome.   You should appreciate, and no doubt you do Mr King, that preventive detention is a very serious sentence. It means that you are in prison indefinitely.  Your release is entirely at the discretion of the parole board.  You may remain there for the rest of your days, and if you are released, you may be recalled to serve preventive detention at any time.

A fixed term sentence

[18]     I have had to first consider what the appropriate fixed term sentence is in your case.  The five burglaries are serious in themselves because you are becoming something of a recidivist so far as burglary is concerned.  I agree with Mr Peters that your burglary offending is not sophisticated.  You target residential addresses.  You are not troubled by the fact that they are occupied when you enter them.  Indeed that seems to be an added attraction.   Because, in addition to the burglaries, you are motivated to commit sexual offences within the addresses.

[19]     What then is the appropriate starting point for this further spate of offences.  I found this quite a complicated sentencing exercise, and I have had regard to one case in particular called R v Wainohu,1  which is similar to your case, and where the approach taken by Lang J impressed me as a sensible one.

[20]     It  is  necessary  to  treat  the  burglary  and  indecent  assaults  as  an  inter- connected pair of offences and I am going to treat the offending in Hillary Crescent on 17 April as the lead offence.  The only sensible course is to fix a sentence for that offending, having regard to both the burglary and the indecent assault, because they are inextricably linked.   In my view, the appropriate starting point for those two crimes is two and a half years imprisonment.   I then look at the balance of the offending – the burglaries, the theft and most important of all the further incident of indecent assault and in my view those further crimes warrant on a totality basis a sentence of two and a half years as well.

[21]     Turning to your personal circumstances, I must have regard for the fact that you have done this sort of thing previously and were sentenced in Timaru for some

1      R v Wainohu HC Hamilton CRI-2006-019-4772, 16 February 2007.

very serious burglaries with a sexual component involved in them as well.   In my view an uplift of 20 months, or one year and eight months is required given the context in which this current offending must be viewed.   That produces an end sentence of six years and eight months, however, there is one major mitigating factor and that is Mr King, that you not only admitted this offending when confronted by the police, but also entered pleas of guilty the following month at the first reasonable opportunity.  I accept that you are entitled to a full deduction which I calculate at 20 months.   That brings  you back to an end sentence of five years  imprisonment. Standing back and looking at this offending in the round, I am in no doubt that this is an appropriate term for offending of this seriousness.

Is preventive detention indicated?

[22]     I turn therefore to preventive detention. You are eligible by age and by virtue of your convictions for qualifying offences to receive preventive detention.   The third  criteria  however,  is  the  more  difficult  one.    Before  I  should  impose  that sentence, I must be satisfied that you are likely to commit further sexual offences upon release from a fixed term.  In other words, I need to be satisfied that a fixed term will not do the job, that you have reached the end of the road effectively, in that the safety of the community demands a sentence of preventive detention.

[23]     In considering that, I am required to have regard to five matters.  The first is whether there is a pattern to your sexual offending.  Clearly there is.  I have referred to what you did in 2007 and to the circumstances of the current crimes.  There is a concerning pattern of burglary, committed with the dual motivation of both stealing, but also for sexual gratification as well.

[24]     This  link  between  entering  residential  homes  and  sexual  gratification  is explored in some detail in the two psychologists’ reports which I have about you.  I do not propose to go into the detail of those reports in open Court.   Your sexual history and behaviours are analysed.   There are a number of issues including voyeurism  and  peeping,  erectile  dysfunction,  your  delayed  involvement  with partners of your own age, the use of pornography and masturbation.  All of these are discussed.

[25]     Most relevant for present purposes is your own acknowledgment, and that was to your credit, your own acknowledgment that you have a fantasy that in the course of committing a burglary you may be invited into the bed of one of your victims.  You acknowledge that committing burglary involves for you an element of sexual arousal, and indeed the unrealistic belief that, despite the invasion upon the privacy  of  others,  they  might  nevertheless  invite  you  to  participate  in  some consensual activity.

[26]     There is I note Mr King a redeeming feature, if I can call it that, in relation to your present offending.  It involved touching the legs of the two victims, and nothing more.  So at least I can say that this offending does not represent an escalation on that in which you were involved in 2007.  But it still constitutes serious offending committed at night against a child and a teenager, asleep, and who were entirely vulnerable to your attentions as an intruder in their homes.

[27]     The second matter I must consider is the seriousness of the harm you have caused.   I have already mentioned this, it speaks for itself.   Fortunately on this occasion, you did not commit any penetrative acts.

[28]     The third matter is any information indicating a tendency on your part to do this sort of thing again in the future.   Put another way, what is the risk that you represent in the community?

[29]     Mr Craig Prince and Ms Joanna Browne, the psychologists, have conducted both static and dynamic testing in an endeavour to assess future risk in your case. The former tracks your historic indicators while dynamic testing is more focused upon your personal traits and your susceptibility to what might be termed lifestyle influences.  Each of them, separately, concluded that you were at moderate to high risk of repeating this type of offending and indeed at high risk as a result of the dynamic assessment which was undertaken. That is obviously concerning Mr King.

[30]     The fourth factor is your ability to address the causes of your offending.  You received some help when in prison last time in relation to which it is said that you engaged in the sessions and appeared motivated.  These however were not sessions

specifically directed to sexual offending.  And then you were released in July 2012 before that course of treatment had been completed.

[31]     I note that you also participated in some drug treatment while in prison.  But of course regrettably you relapsed a few months after your final release when you were suffering from the problems to which I have already referred, substance abuse, financial difficulties and complications in relation to the relationship into which you had entered.

[32]     The psychologists are at one that you are in need of extensive therapy.  They agree you need to be assessed as to your suitability to participate in a Kia Marama programme.   But importantly, it is my sense that you were forthcoming in your dealings with them.  If not initially, you eventually opened up and disclosed to them a good deal about your sexual thinking, your sexual habits and thereby your sexual deviancy.

[33]     In addition, since I have been in Court this morning I have seen a transcript of your interview with the police.  It has been explained to me that you began the interview process with a relatively junior officer and when there were signs that this was not just burglary offending, that there was a serious sexual overtone, you were interviewed by a more senior officer, and you were similarly forthcoming at that point as well.  You revealed the full extent of your offending and assisted the police in locating the addresses where it had occurred.

[34]     It is really this Mr King, that has saved you from a sentence of preventive detention, because there is hope that if  you avail yourself of  the help that will become available at the end of your sentence, you may not be in this position again.

[35]     The fifth consideration is a sentencing principle; that a lengthy fixed term sentence is to be preferred if it provides adequate protection for society.  In relation to this aspect, Mr Prince has gone out on a limb and said this  - that although ultimately the application of that principle in your case is a matter for me that he is:

... of the opinion that a finite sentence will help maintain (your) motivation by providing (you) with a likely date to attend a specialist sexual offenders treatment programme.

It is not every day that a psychologist makes a recommendation such as that.

[36]     I note as well he assessed and reported upon you in January of 2008 when you were only 19.  So he had the benefit of a then and now comparison, particularly in relation to whether you are now more mature, more open and more likely to respond to therapy.

[37]     I am satisfied that a lengthy fixed term sentence is preferable because it should provide adequate protection for society.  In saying that, I am investing some trust in you Mr King, that you will measure up to the indications that you have provided in the recent past to both the police and then to the psychologists.

End sentence

[38]     Could you stand up please.   I treat the offences of burglary coupled with indecent assaults as the lead offences.   In relation to each of those crimes you are sentenced to two and a half years in relation to the burglary, and a cumulative term of two and a half years in relation to each of the indecent assaults.  That makes up the end sentence that I am imposing of five years, because the terms are cumulative with themselves to produce the five year end sentence, but concurrent so that there are not two five year terms on top of one another.   In relation to the further three burglaries, you are sentenced to two years on each, and in relation to the theft charge to six months imprisonment, all of which terms are concurrent.  So to say it again Mr King, the end sentence is five years.

[39]     In my view a minimum period of imprisonment is required in order to meet the principles of accountability, denunciation, deterrence and protection of the community, and so I order that you are to serve a minimum term of two and a half years imprisonment.

[40]     There are also warnings which I consider appropriate, and in one case which

I must impose.  The first is a warning that if you commit further sexual offending of

this  kind,  it  is  highly likely Mr King that  you  will  be sentenced  to  preventive detention because this is effectively your last chance.  The second is a warning with which you will be familiar.   The offences of indecent assault are constituted as serious violence offences which engage the three strikes legislation.  The gist of the warning which I must give you is that if you commit further serious violent offences, including sexual offences, and the Judge imposes imprisonment you will serve that term without parole or early release. And although it may be redundant in your case, were you convicted of murder, again in all probability you would serve the sentence without parole.

[41]     That first warning, in terms of the three strikes legislation will be given to you in writing, so I have only outlined the gist of what it entails.

[42]     You may stand down.

Solicitors:

Raymond Donnelly and Co., Christchurch

Thompson and Morgan, Christchurch