R v King

[2012] NZHC 3353

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-044-17585 [2012] NZHC 3353

THE QUEEN

v

DEREK LESTER KING

Hearing:         12 December 2012

Counsel:         JM Jelas for Crown

NC Wintour for Offender

Judgment:      12 December 2012

SENTENCING NOTES OF TOOGOOD J

Solicitors:

J Jelas, Meredith Connell, Auckland:  [email protected]

N Wintour, Barrister, Auckland:  [email protected]

R V DEREK LESTER KING HC AK CRI-2011-044-17585 [12 December 2012]

[1]      Derek Lester King, you appear for sentence having been found guilty by a jury of three counts of having sexual connection with a person aged 12 to 16 years; nine counts of receiving commercial sexual services from a person under 18 years; one count of encouraging a person under 18 to provide commercial sexual services to you; and three counts of supplying the Class C controlled drug Cannabis to a person under 18 years.  You are also for sentence today on two counts of indecent assault to which you pleaded guilty the day after the jury’s verdicts in respect of the other charges.

[2]      These charges arose from the predatory and exploitative behaviour you have engaged in with girls and young women over several decades.  You have a strong deviant sexual attraction to young female teenagers which you satisfied by seeking out vulnerable street kids and luring them back to your home with offers of food and shelter.   In the seclusion of your home you bribed them with money, alcohol and occasionally cannabis to provide you with sexual services.

[3]      I am satisfied that the evidence given by the seven complainants about your relationships with them revealed merely the tip of a very deep iceberg.

[4]      Pigeon  Park  in  the  central  city  is  a  place  which  you  knew  would  be frequented by street kids.  In 1985, TF was a 13-year-old prostitute and glue sniffer. You invited her to  your home for shelter and  refreshment and on two separate occasions you paid her to have anal and vaginal sex with you.  You pleaded guilty to the two charges of indecent assault laid in respect of that offending.  I accept that TF, like most if not all of your victims, was no stranger to sex when you encountered them and that you did not corrupt her, but you preyed on her and exploited her deprived circumstances for your own gratification.

[5]      In 1998, NH was living with you at the age of only 14 years; her evidence was that she had sex with you regularly.  The charge relating to her allegations was that you supplied her with cannabis, the jury’s verdict meaning that you knew she was under 18 when you did that.

[6]      In 2002, you were convicted of similar offences committed in 2000.  I will return to that offending in a moment, but the bulk of the charges on which you went to trial this year related to repeat offending both in respect of drugs and sex during

2010 and 2011.  The jury convicted you of supplying cannabis to SHT, then aged around 14 or 15 years, in May or June 2010.  You offered AR, a 15-year-old, money, alcohol and cannabis for sex in June or July 2010.  She declined your advances.

[7]      In  the  early part  of  2011,  you  paid  a  17-year-old,  JO,  for  sex  on  three occasions.   CL, then aged 16, was paid for sex by you on many occasions during

2011.

[8]      CM lived with you for several weeks in early 2011.  She told the jury you demanded sex from her three or four times a day during that period and that you supplied her with cannabis and money in return for sexual favours, including anal sex.  She was only 14 at the time.  I accept that there was no violence involved in your offending but you bribed highly vulnerable girls and young women who were in a position to be easily exploited.

[9]      While I need to be careful not to sentence you for offending with which you have not been charged, I am required to take into account the nature and scale of your offending as demonstrated by the evidence at trial and the other information provided to me as part of the sentencing process.  I am satisfied that for at least the last 25-30 years you have lived in a world largely devoid of adult contact in which your attention has been devoted primarily to the sexual exploitation of the young and the vulnerable in an environment which you created specifically for the purpose.

[10]     Your  property  comprises  part  of  a  small  enclave  of  older  residential properties located in a somewhat secluded spot which is nevertheless readily accessible to persons in the Auckland CBD.

[11]     I am satisfied from the evidence that I heard at trial, and from the information contained in the psychiatric and psychological reports received for sentencing purposes, that you operated what became, in effect, a night shelter for homeless street kids over a period of several decades.  The address appears to have been well

known to streetwise girls and young women, many of whom were addicted to drugs and engaged in prostitution.   Not only did you understand the notoriety of your residence, you encouraged it by modifying the property to provide a sleeping area to the rear and in the basement; by providing mattresses and pillows for use in that area; and by leaving a key in a hiding place which seems to have been known to many so that they could freely come and go from that part of the property.

[12]     Moreover, in recent years you were assisted by a young woman, with whom you had a close association, to encourage girls and other young women to visit you and stay on the property.  You made them welcome by giving them food and money, as well as shelter, and kept a supply of female clothing and cosmetics on hand.  As evidence of the identification which the visitors had with the property as a place in which they could feel at home and to which they could return frequently, the walls of several rooms are now covered with tags or identifying marks and slogans from scores of visitors.

[13]     When you gave evidence at your trial, you described the setting up of this facility in terms which suggested that you saw yourself as providing a social service in conjunction with Police and welfare authorities.   While you characterised the property as having been turned into “a safe place” for these young women, I am satisfied that the provision of food, shelter and money at your specifically modified residence was designed to provide you with a regular source of supply of vulnerable girls and young women whom you could exploit sexually. Witnesses who had stayed at your home, and those who had visited on several occasions, gave evidence that you were rarely if ever seen wearing anything other than a dressing gown.   That speaks volumes about the focus of your life.

[14]     In sentencing you, I am required to apply the principles and purposes set out in the Sentencing Act.  The predominant sentencing purposes relevant to this case are:[1]

[1] Sentencing Act s 7(1).

(a)       holding you accountable for the harm done to your victims and the community by this offending;

(b)promoting in you a sense of responsibility for and an acknowledgment of that harm;

(c)       denouncing your conduct;

(d)deterring  you  and  others  from  committing  the  same  or  similar offences;

(e)       providing community protection from you; and

(f)       assisting in your rehabilitation and reintegration.

[15]     Relevant sentencing principles are the gravity of the offending, including the degree to which you are culpable or blameworthy; the seriousness of the type of offending which is determined in part by reference to the maximum penalties you face; the need for consistency and the way in which other offenders have been dealt with for similar offending; information relating to the effect of your offending on your victims; your personal circumstances; and the least restrictive outcome that is

appropriate in the circumstances.[2]    A relevant factor which I must also take into

account as an aggravating feature of your offending is the vulnerability of your victims because of their ages and circumstances as street kids, lacking parental or familial care, protection and financial support.[3]

[2] Ibid, s 8.

[3] Ibid, s 9(1)(g).

[16]     The step-by-step process by which I must reach a final determination as to the appropriate sentence to be imposed upon  you requires me to consider what starting point adequately reflects the circumstances of your offending.[4]    On each of the charges of sexual connection with a person under 16 years, in respect of which you were convicted on three counts, two of them being representative charges, you are eligible for a maximum sentence of ten years’ imprisonment.  I take those as the

[4] R v Clifford [2011] NZCA 360 [2012] 1 NZLR 23.

lead offences.  Your victim CM was only 14 years old at the time of your offending and she was particularly vulnerable to exploitation as a street kid.   I regard the

repeated offending and the nature of it as placing you in the mid to upper range of

offending of its type, meaning that an initial starting point of five to seven years’

imprisonment should be taken.

[17]     It is then necessary to impose a separate uplift to that sentence to adequately reflect the numerous charges involving the receipt by you of commercial sexual services from girls aged between 14 and 17 years; the indecent assaults on a 13-year- old; and the supplying of cannabis to 14-year-olds.  The number of charges and the number of victims against a background of offending obviously having taken place over several decades justifies an uplift of at least two years to the initial starting point on account of the sexual offending, with a further one year’s uplift to reflect the drug offending.

[18]     That uplift of three years would result in a global starting point, reflecting the totality of your offending, of eight to ten years’ imprisonment.  While that would be a substantial penalty in respect of offending for which the maximum sentences are between seven and ten years’ imprisonment, I regard a sentence at the higher end of the range to be appropriate having regard to scope of your offending and the effects of your offending on your victims.

[19]     In her report, the psychologist Dr Sharma records that your offending is likely to have caused significant psychological and emotional harm to your victims, who came from deprived backgrounds and who lived on the streets and who looked to you for support.  Dr Sharma further states that research indicates that the effects of such sexual exploitation are long-standing.

[20]     One of your victims, now in her late 30s, says you are a monster.   She describes  your actions,  at  least  in  part,  as  the reasons  why she has  continually suffered depression and has attempted suicide, requiring her to be in and out of mental health units over several years.  She cannot forgive you for taking advantage of her and using her.

[21]     The victims of your more recent offending express similar feelings.  One of them says that she now has difficulty associating with males, including her older brother to whom she is close.  She is unable to socialise and continues to have panic

attacks.  She also has attempted suicide and has difficulty sleeping.  Unsurprisingly, she hates you for what you did to her.

[22]     All of the victims of your recent offending regretted having to go through the process of giving evidence, something which could have been avoided if you had shown some insight into your offending, and some concern for their wellbeing, by facing the inevitable and pleading guilty.

[23]     You did plead guilty to the two indecent assault charges from 1985 and that spared your victim the ordeal, and the Crown the expense, of a trial.   Your pleas came very late in the piece, however, just before you were due to be tried on those charges and I have no doubt that they were motivated by pragmatic reasons rather than any concern for the interests of others.  I do not consider the circumstances of those pleas would justify allowing anything more than a discount of a few months’ imprisonment.

[24]     Turning   to   your   personal   circumstances,   I   can   find   no   mitigating considerations.  You expressed some remorse for your offending when interviewed by the psychiatrist, but that should be balanced against the self-justifying approach you have taken more frequently when discussing your offending.   I note that you express some regret for what you describe as a relapse into offending after what you say was a ten year period when you did not offend.  I acknowledge that you were not convicted of any offences between 2000 and 2010.  However, Mr King, I am bound to say to you that I find your letter has come far too late in the piece to carry any weight with me whatsoever.  Only in the context of an affidavit sworn in relation to the Crown’s application to forfeit your property did you profess any, but not much, insight into the risks of reoffending which you present, and you make similar observations in that letter.  I am mindful that you are 66 years old, and you make less than convincing observations about your state of health, but neither of those factors justifies applying any discount in your favour.

[25]     An  aggravating  personal  factor  of  considerable  significance  is  that  in April 2002 you were sentenced to imprisonment for two-and-a-half years on three counts of having sexual intercourse with girls aged between 12 and 16 years.  That

sentence had no inhibiting effect on your behaviour, at least so far as these recent offences are concerned; all but three of the 18 charges for which you are to be sentenced today were committed after your release from that imprisonment.   The reports indicate that, if anything, the risk of your reoffending increased after your release and I am not impressed by your attempt to lay some blame at the feet of the young woman who acted as some sort of a pimp for you by encouraging street girls to come to your property. You cannot blame her for what you did.

[26]     While I am mindful that it would be wrong to impose a further sentence on you for your earlier offending, your reoffending and the scale of it indicates that you present a far greater risk to the community than a person having no previous convictions.   The added need for deterrence and the protection of the community requires that a further uplift of 12 to 18 months’ imprisonment would be appropriate. That means that the available range for the imposition of a determinate sentence of imprisonment would be in the region of 9 to 11½ years and, in my view, towards the top of that range.

[27]     The circumstances of the offending and your personal circumstances would also justify the imposition of a minimum period of imprisonment under s 86 of the Sentencing Act which would be close to the maximum allowable of two-thirds of the finite sentence imposed.

[28]     That  leaves  me with  the view  that,  if  a determinate sentence was  to  be imposed, a sentence of 11 years’ imprisonment with a minimum period of 7 years’ imprisonment would be appropriate.

[29]     As I have said, you have shown little real insight into your offending and little real remorse.  That was evident to me at the time you were convicted.  Because of those factors and the scale of your offending I warned you when entering those convictions that I would consider imposing a sentence of preventive detention upon you. The effect of such a sentence would be to imprison you for an indefinite period, but with a minimum period of imprisonment imposed.  The date of your release from imprisonment and the conditions attached to release would be a matter for determination by the Parole Board in due course.  You would be eligible for recall to

prison at any time if the circumstances warranted that course.  The purpose for such a harsh sentence would be to protect the community from you.

[30]     When considering whether to impose a sentence of preventive detention, I am required to take into account the pattern of serious offending disclosed by your history; the seriousness of the harm to the community caused by your offending; any information indicating a tendency to commit serious offences in the future; and the absence or failure of efforts by you to address the cause or causes of your offending.[5]

I  am  also  required  to  take  into  account  that  a  lengthy  determinate  sentence  is

preferable if that provides adequate protection for society.[6]

[5] Sentencing Act 2002 s 87(4).

[6] Ibid, s 87(4)(e).

[31]     I have  received  the  reports  required  by the  Sentencing Act  from  both  a psychiatrist and a psychologist.   You do not suffer any mental illness but you are described as having hypochondriac, narcissistic and obsessively compulsive traits. You regard yourself, according to the psychiatrist, as especially gifted and entitled to special treatment.   You have failed almost completely to empathise with the real effects of your behaviour on your victims, and in your criminal activity you focused upon your own gratification while self-centredly claiming you were helping others. In the  circumstances, the modest expression of remorse  you have made can be disregarded in my view.  You have demonstrated no real understanding of what you did to these girls and young women.  Far from helping them, you took advantage of them in circumstances which make it clear to me that if given the opportunity you would do so again.  In saying that, I am referring to your obsession with sex with young teenagers which means that you are likely, in my view, to reoffend in the way you did with CM.

[32]     While  you  were  in  prison  a  decade  ago  you  underwent  a  course  of counselling and treatment for sex offending.  The probation officer describes you as having completed the course in body but not in mind, although it appears from the other information to me that you did not actually complete the course.  You suggest

in your letter that you went back to the director of the Safe programme for support

but you did not take advantage of that opportunity and you have re-offended in a way that has brought you here.

[33]     It is obvious from the scale of your offending in 2010 and 2011, that you learned nothing from your earlier experiences.   The psychiatrist says that on her assessment you represent a moderate risk of similar offending.  The psychologist’s assessment, which I regard as being based on more comprehensive research and assessment and as realistic and fitting in with the facts of this case as I know them, is that the risk of reoffending against vulnerable, pubescent girls following your release into the community is high.  I share that view.

[34]     You caused serious harm to vulnerable members of the community.  Research indicates that the effects of such sexual exploitation are long-standing so that the effects of your offending on your victims will be ongoing and you impose a serious risk on those others in the community who remain vulnerable when you are released. You take no real responsibility for your offending and you continue to rationalise and minimise it.  You are assessed as being unlikely to be willing, in reality, to make personal and environmental changes in the future.   It is essential that the community be protected from you.

[35]     Given your age, I have given serious consideration to the possibility that a lengthy finite term of imprisonment, which would not see you released until at least the age of 73 or 74, would be sufficient to minimise the serious community risk that you impose.  The psychologist’s opinion (which is supported by the evidence of the types of sexual contact you had with your victims on some occasions) is that the offending in which you engaged was not dependent on any physical vigour and that you are opportunistic and manipulative in your choice and seduction of victims. Your grooming and coercion of young vulnerable girls is likely to persist, in the psychologist’s view, even with increasing age.  Furthermore, you have demonstrated little motivation to understanding the reasons behind your offending.   While the structured conditions of incarceration may, given time, enable you to address these issues, your prognosis is poor.

[36]     In view of the high risk of reoffending, I am satisfied – but I say after some serious consideration -  that an extended supervision order under s 107I of the Parole Act 2002 would not be adequate, upon your release from a finite sentence, to protect the community to the extent necessary.   I acknowledge that such an order could extend until you were into your 80s, and that your prognosis may change if you respond favourably to treatment in the future.  But at present on the information now before me I do not consider any constraints short of incarceration are likely to prevent you from reoffending.

[37]     I  have  come  to  the  inevitable  conclusion,  therefore,  that  a  determinate sentence of the lengthy period indicated will not provide the protection the community requires from you, and that it is necessary to detain you indefinitely.

[38]     Although the considerations in imposing a minimum period of imprisonment on  a  preventive  detention  sentence  differ  slightly  from  those  in  relation  to determinate sentences,[7]  I am of the view that it is appropriate to relate that to the period which I would have considered imposing had I come to the view that a finite sentence should be imposed.[8]  Will you please stand Mr King?

[7] Sentencing Act 2002 s 89(2).

[8] R v Johnson [2004] 3 NZLR 29 at [31]-[32]

[39]     For the reasons I have given you are sentenced to preventive detention and I order you to serve a minimum period of 7 years’ imprisonment.   Because of that sentence and for the reasons given in a judgment delivered last week, I dismiss the instrument forfeiture application made by the Crown.[9]

[9] R v King [2012] NZHC 3296.

[40]     The  Corrections  Department  shall  be  supplied  with  a  copy  of  these sentencing   notes   and   the   psychologist’s   and   psychiatrist’s   reports   dated

11 October 2012 and 12 October 2012 respectively. [41]       Stand down.

.............................................

Toogood J

ADDENDUM

[42]     Mr King, I am sorry to have to recall you in respect of this sentencing but I overlooked the need to impose sentences on the 15 charges for which you were not eligible for preventive detention.   The sentence of preventive detention which I imposed applies to the three charges of sexual connection with a young person under the age of 16 years, but I have to impose finite sentences on all of the other charges. Would you be good enough to stand now please?

[43]     On each of the two charges under s 134(3) of the Crimes Act, of indecent assault on a young person, to which you pleaded guilty you are sentenced to imprisonment for three years.

[44]     On the three charges under the Misuse of Drugs Act of supplying cannabis to a person under 18 years you are sentenced to three years’ imprisonment on each count.

[45]     On the charge under the Prostitution Reform Act of encouraging a person under the age of 18 years to provide commercial sexual services you are sentenced to three years’ imprisonment.

[46]     On  the  nine  charges  under  the  Prostitution  Reform  Act  of  receiving commercial  sexual  services  from  a  person  under  the  age  of  18  years  you  are sentenced to four-and-a-half years’ imprisonment on each.

[47]     All of those sentences are to be served concurrently.

.................................................

Toogood J