R v Lyttle HC Rotorua CRI-2010-063-3910

[2011] NZHC 1091

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-063-3910

THE QUEEN

v

THOMAS LYTTLE

Hearing:         2 September 2011

Counsel:         C Macklin for Crown

J N Briscoe for Prisoner

Judgment:      2 September 2011

SENTENCING REMARKS OF LANG J

R V LYTTLE HC ROT CRI-2010-063-3910 2 September 2011

[1]      Mr Lyttle, you appear for sentence at the age of 63 years having pleaded guilty in the District Court to eight charges of sexual grooming,[1] ten charges of doing an indecent act on a child[2]  and eight charges of doing an indecent act on a young person.[3]    The maximum sentence for the charges of sexual grooming and doing an indecent  act  on  a  young  person  is  seven  years  imprisonment.    The  maximum

sentence for doing an indecent act on a child is ten years imprisonment.

[1] Under s 131B(1)(a)(i) and (b)(i) Crimes Act 1961.

[2] Under s 132(3) Crimes Act 1961.

[3] Under s 134(3) Crimes Act 1961.

[2]      The  District   Court   declined   jurisdiction   to  sentence   you,   because   it considered that the sentencing Court should have the ability to consider a sentence of preventive detention given your previous criminal history.  The District Court does not have power to impose that sentence, hence the reason for the matter being referred to this Court.

Facts

[3]      You are to be sentenced on the basis of a lengthy agreed summary of facts.  It is clear from the various reports that are before me, and indeed from what you have just told me, that you do not accept responsibility for the acts that are referred to in the summary.  Nevertheless, you signed the summary in relation to each charge and you agreed through your counsel at the time that the summary was correct.   You therefore fall to be sentenced on the basis of the matters contained in it.

[4]      The charges to which you pleaded guilty relate to the sexual grooming and commission of indecent acts on no fewer than 11 young girls.  All of the offending occurred during the 16 month period between 15 August 2008 and 1 December

2009.  The victims of your offending were aged between 7 and 12 years of age at the time you molested them.  Several of your victims were aged between 7 and 10 years of age.

[5]      The summary of facts records in detail the manner in which you offended against each of these young girls, and the type of acts you engaged in when you were

in their company.  It is not necessary to detail that at this stage because your actions

in relation to all of your victims were strikingly similar.  First, you befriended them and their friends.  You made it clear that they were welcome to come to your home and spend time in your company. You bought gifts for them. You gave them money. You gave them food, you gave them items such as jewellery.  You let them watch television at your house, you let them play on a mobility scooter that was there.  you bought alcohol and cigarettes for some of the victims and you allowed them to consume those at your house.  I have no doubt that you had your victims believe that you were a person who could be trusted, and that your house was a house that was safe and fun to visit.

[6]      Sadly, that was not the case at all.  You engaged in various indecent acts with these girls.  You kissed them regularly, and completely inappropriately.  You touched them on the area of their breasts, genitals and buttocks.  Sometimes you did that by putting your hands under their clothing.  The most serious offending was against a

girl who was just seven years of age when the offending began.[4]   You persuaded her

[4] Referred to in the summary of facts as Complainant A.

to undress herself at your house.  You then took out your penis.  You rubbed your penis against her genital area.  This occurred on several occasions, and in different places.

[7]      One of the methods that you employed was to take these girls away on trips. I am sure that you convinced their parents that it would be safe and appropriate for them to go with you.   This gave you a further opportunity to engage in indecent behaviour with your victims.

[8]      I have read victim impact statements from many of the victims.  These make it clear that your offending has had a devastating impact upon them.  Many of them are unlikely to be able to trust older male persons again in the future.   Sadly, the effects for these victims are unlikely to be fully formed at this stage.   Experience shows that in this particular field the effects of sexual offending can last for many, many years.  Often it will take very significant and intensive treatment for victims to be able to come to terms with what has happened to them, to be able to understand that they did not bring it on themselves, and to be able to begin to trust again their

fellow human beings.

[9]      The kind of offending that you engaged in was one that sends ripples through our community.  It means that many innocent people cannot be trusted by the parents of young girls because of what has happened to these particular victims.

Sentencing Act 2002

[10]     In   any   case   involving   this   type   of   offending   issues   of   deterrence, denunciation and the need to hold the offender accountable rise to the forefront. People like you must know that if  your offending is detected and proven, then significant consequences will follow.

[11]     The real issue in sentencing you, because of your previous convictions and other matters to which I will refer, is whether I should impose the indeterminate sentence of preventive detention, or whether a lengthy finite sentence will be sufficient to reflect the principles to which I have referred and to protect the community from you in the future.

[12]     The Crown says that a sentence of preventive detention is the only realistic response given the danger that you present to our community.

[13]     For that reason, I now consider what finite sentence would be appropriate in your case.

What finite sentence would be imposed?

[14]     Your offending has a large number of aggravating factors.  First, there is the sheer number of your victims.   The fact that you are involved in the abuse of no fewer than 11 victims over a period of just 16 months is obviously a very significant factor.  Second, there is the nature of the offending, involving as it did many forms. Third, there is the effect on your victims.  Fourth, there is the fact that all of your offending was premeditated.  You deliberately engineered situations to enable you to be in close contact with these girls in circumstances where you would not be observed.  That is implicit in the sexual grooming charges, but it is nevertheless a significant factor.

[15]     There is also an element of abuse of trust because, as I have said, these girls believed that they could trust you and that they would be safe in your house and in your company. Their trust was completely misplaced.

[16]     There is no tariff, or guideline, judgment from our Court of Appeal dealing with offending of this type.  That is for the very good reason that such offending can occur in an infinite variety of ways.  I gain some help, however, from the guideline judgment of the Court of Appeal in R v AM[5]. That case dealt with the sentences to be imposed in cases involving sexual violation, so it dealt with a different and more serious form of sexual offending.   Nevertheless, all of the factors to which I have referred are identified in R v AM as being aggravating factors when applied to sexual offending.[6]

[5] R v AM [2010] NZCA 114

[6] At [34] to [64]

Starting point

[17]     The Crown says that, taking the offending against complainant A alone, a starting point of five to six years is warranted.  Your counsel submits that a starting point of three to four years is appropriate.   Standing alone, I accept the Crown submission that the offending in relation to complainant A would justify a starting point of five years imprisonment.

[18]     I then need to determine the extent to which that starting point should be increased to reflect your culpability in relation to your remaining victims.  In many ways that is the crux of the sentencing exercise here, because the end result is what is important rather than the process by which it is achieved.

[19]     I consider that an uplift of three years would be required to reflect your culpability in relation to all 11 victims.   This means that I would be left with a

starting point of eight years imprisonment to reflect your culpability on all charges.

Aggravating factors

[20]     I then need to consider whether I should increase the sentence to reflect aggravating factors personal to you.  There is a very significant aggravating factor here, and this relates to your offending in or about 2004 and 2005 for which you received a sentence of four years imprisonment in June 2005.

[21]     I have read the notes of the Judge who sentenced you on that occasion.  Your offending on that occasion was against two girls aged 13 and 11 years.   In many ways it bore a strong similarity to your current offending.

[22]     You served virtually the entire sentence that was imposed upon you on that occasion, yet within a month or two of the expiry of your parole conditions from that sentence, you began your present offending.   Mr Lyttle, that makes your present offending so much more serious.  You knew the seriousness with which the courts viewed this type of offending.  You knew that because you had received a sentence of four years imprisonment.   Yet as soon as your parole conditions expired, you began again, and on this occasion your offending extended to 11 victims.

[23]     You are not being punished further now for your earlier offending.  Rather, as I have said, your present offending is made that much more serious by the fact that you have not learnt from the sentence that was imposed upon you earlier.  This is such a significant factor that I would increase the starting point that I have selected by two years to reflect it.

Mitigating factors

[24]     I now need to consider the extent to which that end starting point of ten years imprisonment should be reduced to reflect mitigating factors personal to you.

[25]     The only real mitigating factor in your case is the fact that you pleaded guilty, and thereby spared your victims the need to give evidence at a trial.   Your guilty pleas did not come at an early stage.  You were committed for trial, and your pleas

were  entered  at  about  the  time  the  Crown  indicated  that  it  proposed  to  lead propensity evidence relating to your previous convictions.

[26]     In R v Hessell[7]  the Supreme Court said that the discount to be given for a guilty plea must reflect all relevant circumstances.[8]    Sometimes the guilty plea will reflect the fact that the offender has accepted full responsibility for offending.  It may also include within it an expression of remorse.  I am in a difficult position in your

[7] R v Hessell [2011] 1 NZLR 607.

[8] At [74].

case, Mr Lyttle, because you now flatly deny that the offending occurred. Remarkably, you say that your former counsel persuaded you to plead guilty to the charges on the basis that you would receive some insulin for your diabetes condition if you did so.

[27]     I therefore must approach the discount to be given in relation to your guilty pleas on the basis that they do not really reflect an acceptance of responsibility, and certainly not an expression of remorse.  I do, however, need to reflect the fact that 11 girls  were  saved  the  further  trauma  of  having  to  give  evidence  in  a  Court environment by your guilty pleas.  The Crown properly accepts that a discount of 15 to 20 per cent would be appropriate to reflect your guilty pleas.  I would therefore apply a discount of two years, or 20 per cent, to reflect that factor.

Minimum term of imprisonment

[28]     In any situation where the Court has sentenced an offender to more than two years imprisonment, it has the power under s 86 of the Sentencing Act 2002 (“the Act”) to impose a minimum term of imprisonment.   This means the term of imprisonment  that  the  offender  must  serve  before  being  permitted  to  apply  for parole.

[29]     The Court can only order a minimum term of imprisonment to be imposed where  that  is  necessary  to  reflect  the  principles  of  deterrence,  denunciation,

accountability and the need to protect community.[9]

[9] S 86(2).

[30]     Your counsel says that there would be no need for a minimum term in this case, but I disagree.  All of the factors to which I have referred are clearly engaged, and  in  particular,  the  need  to  protect  the  public.    I  would  therefore  impose  a minimum term of imprisonment of five years.

Should a sentence of preventive detention be imposed?

[31]     I  now  need  to  consider  the  real  issue,  which  is  whether  a  sentence  of preventive detention should be imposed.

[32]     The Court has the power to impose a sentence of preventive detention when certain conditions are met. They are that the offender was over 18 years of age when the qualifying offences were committed.  Second, that the offender has committed a qualifying sexual or violent offence and, third, that it is likely that an offender will commit a further qualifying sexual and/or violent offence upon release in the usual way under the Parole Act 2002.

[33]     In the present case there is no dispute that two of the three conditions are met. You were obviously over the age of 18  years at the time you committed these offences, and you have obviously committed qualifying offences.  The real issue is whether it is likely that you will commit a further qualifying sexual and/or violent offence if released in the usual way under the Parole Act 2002.

[34]     Several factors drive me to the inevitable conclusion that that is indeed the case here.

[35]     First, there is the prolific nature of your present offending.  By that I mean the fact that you have carried out a variety of sexual acts against no fewer than 11 victims.  Second, this occurred just a month or two after the expiry of your parole conditions from your previous sexual offending.   Quite clearly, the experience of receiving  a  finite  sentence  on  the  previous  occasion  did  not  stop  you  from committing  other  qualifying  offences  very soon  after  the  expiry of  your  parole conditions.  Third, the fact that you continue to deny both your earlier offending and your present offending mean that you have had no treatment to date and it is unlikely

you will  receive any in  the future unless  you  change  your stance.   Fourth, the material contained in the psychiatric and psychological reports, to which I shall refer in greater detail shortly.

[36]     Finally,  I view with concern comments that  you made to a psychologist engaged  in  May 2006  to  prepare  a  report  for  the  Parole  Board.   You  told  the psychologist that, if released, you would ensure that you placed yourself in a position whereby there was no possibility of being accused of engaging in inappropriate behavior with young children in the future.  You indicated that you would make sure that you would not be around young persons so that such accusations could not be made.   Well you wasted no time, Mr Lyttle, in going back on your word in that respect.

[37]     All of those factors persuade me that it is highly likely that, if released on parole in the usual way, you will commit another qualifying sexual offence.

[38]     Jurisdiction therefore exists to impose a sentence of preventive detention. The only remaining issue is whether I should exercise my discretion in favour of that sentence, or whether I should exercise it in favour of a finite sentence.

[39]     In considering this issue I am required to have regard to five factors.  They are:

(a)       Any pattern of serious offending disclosed by the offender’s history;

and

(b)The  seriousness  of  the  harm  to  the  community  caused  by  the offending; and

(c)       Information indicating a tendency to commit serious offences in the future; and

(d)The absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and

(e)       The principle that a lengthy determinate sentence is preferable if this provides adequate protection for the community.

[40]     Your present offending obviously establishes a pattern of serious offending. The nature of the offending and the age and sex of your victims place that conclusion beyond any doubt.   It is reinforced when the nature of your previous offending is taken into account.   There is no doubt that on two separate occasions, and over lengthy periods of time, you have engaged in patterns of highly inappropriate sexual activity with young girls.

[41]     The seriousness of the harm to the community caused by your offending also goes without saying.  As I have already said, offending such as this sends ripples throughout our society.  It is devastating for the victims.  It is equally devastating for their parents, who believe that they have let their children down by allowing them to be in your company.  It goes much further than this, however, and permeates society at many levels.  As I have already said, other people become less trusting.   Other people have grave fears about allowing their young children to be in the company of persons such as you.

[42]     I also have a significant body of material relating to your tendency to commit serious offences in the future.   As I have already indicated, I have read the psychologist’s report prepared in May 2006 for the Parole Board.  That contains a number of concerning aspects, and I propose simply to read one of them.   The psychologist notes:

Mr Lyttle’s lack of insight into his offending, the planning evident in his offending as detailed in the Police summary of facts, his lack of engagement in treatment for his offending, and the possibility that he could be released to high risk situations given his lack of a comprehensive release plan and his family’s support of his denial… are also dynamic risk factors.  These risk factors  have  been  maintained  by  Mr  Lyttle’s  continued  denial  of  the offending.    Taking  into  account  the  presenting  static  and  dynamic  risk factors, Mr Lyttle’s risk of further sex offending is likely to fall within the medium range.

[43]     Both   the   psychologist   and   the   psychiatrist   who   prepared   reports   in anticipation of today’s hearing were significantly handicapped by the fact that you effectively  refused  to  discuss  your  present  offending  with  them.    Instead,  you

maintained  focus  on  yourself.    You  repeatedly  discussed  your  affliction  with diabetes, as you have done today.  You maintained, as you do today, that you did not commit  the  previous  offences  for  which  you  were  sentenced  in  2005.    You maintained your denial of any wrongdoing in relation to the offences for which you appear for sentence today.  As a result, it was difficult for either health professional to engage meaningfully with you.

[44]     From  your previous history and continued denial of any wrongdoing the psychologist draws the conclusion   that you remain at high risk of further sexual offending.  He says that if you were to reoffend in the future, the likely victim would be a young girl (prepubescent or pubescent), who you have identified as vulnerable, and with whom you have developed a relationship through grooming.   The psychologist goes on to say:

The only pathway to improvement of this would be, strictly in the following order,  that  Mr  Lyttle  fully  acknowledge  his  sexual  offending  against children, based on the full acknowledgement then take part in and successfully complete a sex offender group treatment programme at Te Piriti or Kia Marama that is in line with his risk of reoffending, cultivate a support group that would not collude with him in avoiding his responsibility for his sexual offending, and show an enduring ability to manage his high risk of reoffending.

[45]     The  psychiatrist  points  out  that,  as  is  always  the  case,  it  is  virtually impossible to predict the future with any degree of confidence.   Nevertheless, the psychiatrist points out that negative prognostic factors include your continued denial of the offending.  He also says that it is of note that a degree of physical impairment has not been sufficient to date to prevent you from reoffending.  Despite reporting low libido and limited potency, you have still engaged in sexual acts with young girls.

[46]     All of this material, Mr Lyttle, suggests that you present a grave risk to the community if you do not acknowledge your offending and take active steps to deal with it.

[47]     The next factor, which is the absence of failure of the offender to address the cause or causes of the offending, has already been covered in what I have said.  You have never been offered help for the issues that you face because you deny your

offending, and you will not engage meaningfully with anybody who tries to assist you.   This means that, if you continue in this way, it is highly unlikely that any further treatment will be offered to you.

[48]     The  final  factor,  the  principle  that  a  lengthy  determinate  sentence  is preferable if this provides adequate protection for society, really speaks for itself. Parliament considers that it is desirable, if at all possible, for a finite sentence to be imposed.    That  will  only  be  the  case,  however,  if  the  finite  sentence  provides adequate protection for society.

[49]     When  I  take  all  of  those  factors  into  account,  and  in  particular,  your continued denial of the offending, I am left with a clear view regarding the outcome. It would be highly dangerous, in my view, for a finite sentence to be imposed.  If that was to occur you would no doubt serve your sentence without endeavouring to seek any help at all to deal with the issues that underlie this offending.  You would one day be released and you would then return to the community and be highly likely, in my view, to commit another similar offence.

[50]     The only way in which the risk to society can be adequately managed is for the  sentence  of  preventive  detention  to  be  imposed.    That  may  provide  some incentive to you to acknowledge your offending and to seek help for your problems. At the very least, it would be mean that you will not be released until such time as the appropriate health professionals are satisfied that you no longer pose a risk to the community.

Sentence

[51]     On each of the charges of doing an indecent act on a child you are sentenced to preventive detention and ordered to serve a minimum term of imprisonment of five years.

[52]     On  each  of  the  remaining  charges  you  are  sentenced  to  four  years imprisonment.

[53]     All sentences are to be served concurrently.

[54]     I now revoke the interim order that is currently in place for suppression of your name.

Lang J

Solicitors:

Crown Solicitor, Rotorua

Lance Lawson, Rotorua