R v Leonard
[2013] NZHC 460
•8 March 2013
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2012-012-003312 [2013] NZHC 460
REGINA
v
SHAUN KAHU LEONARD
Hearing: 8 March 2013
Appearances: A Stevens for the Appellant
R D Smith for the Crown
Judgment: 8 March 2013
JUDGMENT OF FOGARTY J
[1] Mr Leonard, you appear for sentence on one charge of assault with intent to rape, which attracts a maximum penalty normally of 10 years imprisonment.
[2] In September last year at about 9.30 am, a 25 year old female was observing local birdlife at Jubilee Park. You had driven to the same park, armed with a knife, with the intention of finding a female to have sexual intercourse with. When you arrived at the park, you saw her on one of the tracks, and waited for an opportunity to attack her. After a short wait, you carried out your attack. Grabbing her as she walked down the track. You grabbed onto her shoulders with both of your hands. You pushed her backwards, causing her to fall onto her back onto a grassy area beside the track. When she fell on her back, you lay on top of her body. You pulled her top open, placing your hand on her breast. You kissed her forehead. During this
time you were holding the knife in your hand. She was struggling and yelling at you
R V LEONARD HC DUN CRI-2012-012-003312 [8 March 2013]
to get off. You did get off the victim, and you fled the scene when you saw her reach for her cell phone to call the police.
[3] Although she suffered very little in the way of any physical injuries, she suffered emotional trauma which was severe. Quite understandable in the circumstances.
[4] I have heard today that you gave yourself in to the police. In fact, that was the reason why you have been apprehended. You admitted these facts that I have just outlined, and you stated that it was your intention to find a woman at the park to have sex with. That it was your intention to rape her. You said you did it because you “couldn’t get a missus”.
[5] Mr Leonard, you have recently come out of prison for a very serious and prolonged sexual offence with another woman you did not know, who lived in your apartment building. You did not know in the sense that you did not have a relationship with her. Because of the serious nature of that offending, Judge O’Driscoll in the District Court was uncertain as to whether or not you should be sentenced in the normal way for this offence, or whether it might be a case where it is in the interests of the safety of the community that you be sentenced for Preventive Detention. He removed, therefore, the sentencing to the High Court and, in accordance with the Sentencing Act, requested two clinical reports examining whether or not you should be sentenced to Preventive Detention.
[6] If you are sentenced to Preventive Detention, it means that you are sent to prison for a minimum period of at least 5 years, and you will not be released until the Parole Board is satisfied that you are not a significant risk to the community. There is quite a detailed process of considerations that this Court has to undertake, these are contained in ss 87 and 88 of the Sentencing Act. I am going to go through these now. At this stage, Mr Leonard I think you can go back to your seat and I will ask you to stand up again when I reach the end.
[7] The purpose of Preventive Detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members. The possibility
of such a sentence applies if you have been convicted of a qualifying sexual or violent offence, and you have, that you are 18 years or over, and you are. The most critical criteria that I have to consider is whether the Court, that is myself carrying the responsibilities of the Court, am satisfied that you are likely to commit another qualifying sexual or violent offence if you are released at the sentence expiry date of any sentence other than this sentence that the Court is able to impose.
[8] In respect of this sentence, I am satisfied from the analysis of Mr Smith for the Crown that the end sentence, after taking into account various factors, would be likely in the range of 5 and a half to 6 and a half years. I will briefly summarise the analysis of the Crown. Based on the authorities the starting point for offending of this character would be in the range of 6 to 7 years. It would be appropriate that there be an uplift of 18 months, to reflect your previous convictions and that this offending occurred while you were on parole. From that provisional sentence of 7 and a half to 8 and a half years, you would be entitled to a credit of 25%, bringing the sentence down into the range of 5 and a half to 6 and a half years.
[9] The question then that I have to examine is, assuming that you were sentenced on that basis, whether or not in 5 and a half to 6 and a half years time, in the future, on release you would be likely to commit another serious sexual offence.
[10] To examine that question, Parliament requires the Court to be assisted by two specialist reports, and the Court must consider the reports of at least two appropriate health assessors as to this likelihood. Mr Leonard, I have had two reports; one from Mr Rob Devereux, a clinical psychologist, and the other from Dr Parker, a psychiatrist. You know both of these gentlemen, as you have been interviewed by them for several hours. As I have said to counsel in the course of argument, this sensible requirement from Parliament essentially enables the Judge to make a decision of this magnitude relying upon the clinical expertise and experience of two professional men or women in psychology and psychiatry.
[11] I am faced with two comprehensive and detailed reports. These reports both reveal that you have had a long history of psychological or psychiatric intervention
by clinicians. I emphasise this because it is directly relevant to your ability to change in the next few years.
[12] History shows that in very early childhood you demonstrated behavioural problems. This dates, says Dr Parker, since you were a toddler.
[13] Before I go into this detail, can I say Dr Parker asked me in his report not to go into detail, in sensitivity to the Leonard family, to your relatives, your mother and father and family, who are, he said, shamed by your conduct. I consider that it is important in open Court to explain the reasons for the decision and to report it. The Leonard family, your wider family, are not here today, but if I could just speak to them for a moment, should they be reading this report. I do not think they should feel shame.
[14] For one reason or another, right from that time that you were a toddler, you have demonstrated behavioural difficulties. There have been numerous attempts at intervention for the rest of your life. It is, unfortunately, necessary for me to go through this, at least in some detail, because it directly influences my judgment as to your ability to change. As I have indicated, you have had difficulties since you were a toddler, that includes impulsive oppositional behaviour. Since a toddler, you have received therapy of a variety of sorts, some of it speech therapy from four years to the age of eight. You have been assisted by SPELD, the Specific Learning Disabilities Association. At the age of 13, you were diagnosed as having Oppositional Defiant Disorder by a paediatrician. At the age of 15, you were referred to the Child and Youth Mental Health Services in Timaru by a school counsellor because of concern by your parents as to your violent outbursts of anger in their homes. During which time you hit your mother. You were referred after that, when back in Dunedin, to the Dunedin Youth Specialty Mental Health Service. At the age of 19, you were referred to the Timaru Alcohol and Drug Service by a community diversion officer. You received psychological treatment in prison from
2009 to the present.
[15] Turning to the immediate examination by these two clinicians. You cooperated with the psychologist, Mr Devereux, who interviewed you over two
separate sessions for a total period of five and a half hours. He conducted a number of specific tests. He was fully aware of your history, which I have only briefly summarised. He was also aware of some of your mental obsessions, which are of a deviant character. Should this case go further they can be more fully read. I am, to a degree, reflecting Dr Parker’s wish to protect the sensitivities of the Leonard family. As a result of his clinical analysis, Mr Devereux’s conclusion is this:
60.Following his latest sexual offending incident, Mr Leonard is currently considered to be at high risk of sexual recidivism. This risk level is likely to remain at this level until he can demonstrate significant progress with regards to addressing his dynamic risk factors. Despite receiving extensive (and ongoing) individualised psychological intervention prior to (and following) his release from prison, Mr Leonard re-offended within a very short period of time following release. It should be noted that Mr Leonard previously presented as having made positive treatment progress while in prison prior to his release. Clearly these gains were not sustained upon his release to the community and it is possible that Mr Leonard was unable to generalise positive behavioural changes when freed from the external controls and protections afforded by the prison environment.
[16] The emphasis in my oral presentation will not appear in the text, but I would like to record that I have stressed “unable”, your inability to make positive behavioural changes. I do so because Ms Stevens who made submissions on your behalf was urging upon me to take the view, to some extent supported by Mr Sim, the psychologist who has been treating you, that you deserve an opportunity to make these positive behavioural changes, and because of that I should, on this occasion, sentence you in the ordinary way and not to a sentence of Preventive Detention. But I am concerned by the conclusion of Mr Devereux, that you may simply not have the ability to do that.
[17] I move on in Mr Devereux’s conclusion, where he said:
62.Clearly Mr Leonard has ongoing sexual offending related issues that re-emerged during his brief return to the community. It is now considered likely that he will remain vulnerable to similar offending related behaviour until such time as he has addressed his sexually related issues in a more intensive and comprehensive manner. Until such time as Mr Leonard can demonstrate significant stable progress with regards to addressing his assessed sexual offending needs, it is difficult to perceive that he could effectively self-manage his risk in the community.
[18] I think I am reading Mr Devereux correctly when I emphasise the words “can” and “could” relating back to this ability. However, Mr Leonard, Mr Devereux is not without hope. He concludes by saying:
64....Mr Leonard will only benefit from this treatment opportunity if he chooses to engage in an open and honest appraisal of his sexual offending motivations and issues while attending the ASOTP.
[19] Mr Leonard, you are a man. You are not insane. You do know right from wrong. You do have the ability to make decisions. You do have an opportunity to hear what these clinicians are saying and to choose. I have some doubt as to your ability to do so because of these reports. I also note that Mr Devereux has hope that you will have the ability to choose to engage and control, thereby control your need for sexual gratification in the way that has been manifested in these two serious crimes.
[20] I turn to Dr Parker’s report. He is a psychiatrist. Significantly, in this report he demonstrates, on my reading, very serious concerns about your future. He, like Mr Devereux, talks both about your ability, as distinct from your willingness, to cooperate and engage in treatment for sexual offending. In fact, his very last paragraph opens with the line:
The fact that Mr Leonard is currently not able or willing to...
[21] I wish to make it clear, I am not making a final decision that you are not able to change, but what I am concerned about is that you may not be able to change, or may not be willing to change. That directly is affecting my judgment on this test of whether I am satisfied that you are likely to commit another qualifying offence.
[22] Dr Parker specifically asked me to focus on what he calls the HCR20 risk factors. This is a structured assessment tool which assists in the assessment of violence to others, by examining 20 factors which have been shown empirically (that means by science, of factually linked with the risk for violence); 10 are static (that is unchangeable), 10 are dynamic (that is potentially changeable). Mr Leonard, you qualify as having all of those factors present, except two - you do not have a major mental illness and you do not have active symptoms of a major mental illness. In all
other respects, I am afraid, these indicators are present. Again, I do not think I need to burden the length of this judgment by going through all those factors, because that is a specialist area anyway, it is the conclusion of the psychiatrist. It is the presence of 18 out of the 20 factors that is driving my judgment. Again, Dr Parker begins his summary with this sentence:
Mr Leonard’s behaviour was disturbed from an early age.
[23] There is a long history, which again drives my judgment as to the likelihood of future continuity of this antisocial behaviour. He also says:
Re-offending is more likely in men who have deviant patterns of sexual arousal compared to men who commit sexual assaults opportunistically but who are otherwise non-deviant in their sexual arousal patterns... This suggests a propensity to similar offending in the future.
He also says:
It appears to be significant that violent sexual offending dominates Mr Leonard’s criminal history, which could suggest an unusual degree of preoccupation with such behaviour.
[24] Dr Parker does acknowledge that his view differs from that of Mr Sim. Mr Sim thought that your assault on this lady in the park may have resulted from being overloaded with stress and, indeed, that if you offended you would be returned to prison, which would be less stressful. Dr Parker does not find Mr Sim’s view about this to be convincing. I am concerned that even if Mr Sim is right, and you really were trying to find some way to go back to prison, the very fact that you behaved in this way, attacking this stranger in public is of concern. I agree with the analysis of Mr Smith for the Crown, that the fact that you did this, sober, in broad daylight, armed with a knife, in a public park, is in some ways more disturbing than the previous very serious offending, when you went into the apartment of a strange woman and attacked her. In that sense, in contrast, in a more private place, this latest offending is more serious. Ms Stevens argued that it was not, because you broke off and you reported to the police. I agree in that sense, the gravity of what happened is of lesser significance than the 2005 offence. But the fact that, to your credit, you went to the police does not mean that you are not likely to do this in the future. There is a distinction between not being able to control your desires, and acting on
them and regretting what you did in the past. It is to your credit that you did approach the police, and it is perhaps a sign that you are approaching an age where you might be able to make a decision to try to control these desires, and what the clinicians describe as a sexual fetishism.
[25] For these reasons, however, I am left satisfied, Mr Leonard, that you are likely to commit another qualifying sexual or violent offence were you to be released in 5 and a half to 6 and a half years time. That is my state of mind, my level of satisfaction. That being the case, I am then obliged – well, I am not obliged, I technically have a residual discretion. But given that state of satisfaction, I may impose a sentence on you, but I am considering, and it will be apparent from the words I have spoken today, that the safety of society and the protection of the community, which is the purpose of this sentence, has to be recognised by imposing a sentence of Preventive Detention.
[26] When imposing a sentence of Preventive Detention, I have to consider what is the minimum period to serve. It cannot be less than five years. The minimum period must be the longer of the minimum period of imprisonment required to reflect the gravity of the offence, or the minimum period of imprisonment required for the purpose of safety to the community.
[27] I have previously explained that I agree with the Crown’s analysis, that the period of sentencing would be between 5 and a half years and 6 and a half years. In fact, it was 5 years 7 months to 6 years 4 months. I would have imposed a finite term of imprisonment in the range of 5 and a half years to 6 and a half years. Had I considered a minimum period of imprisonment, it would have been significantly less than that within the range allowed, but below 5 years. Therefore, in this case, applying s 89(1), I must impose a minimum period of imprisonment of 5 years.
[28] You should now stand up, Mr Leonard.
[29] Mr Leonard I am sentencing you to Preventive Detention, with a minimum period of imprisonment of 5 years.
[30] I am obliged by law to read the following warning to you. Given your conviction on this charge of assault with intent to rape, you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violent conviction. You will also be given a written notice which contains a list of these serious violent offences. If you are convicted of any one or more serious violent offence, other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole, unless it would be manifestly unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment.
[31] Stand down.
Solicitors:
Anne Stevens Barrister, PO Box 5827, Dunedin
Crown Solicitor, PO Box 803, Dunedin
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