R v M
[2015] NZHC 237
•20 February 2015
NOTE: ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF PRISONER PURSUANT TO S 200
CRIMINAL PROCEDURE ACT 2011.
NOTE: ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202
CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-087-000820
CRI-2014-087-000876 [2015] NZHC 237
THE QUEEN
v
M
Appearances: C A Harold for Crown
A Arman and S Dayal for Prisoner
Judgment:
20 February 2015
SENTENCING NOTES OF COURTNEY J
R v M [2015] NZHC 237 [20 February 2015]
[1] M1 you appear for sentence today having pleaded guilty to five charges of sexual violation2 and five charges of making objectionable publications.3 The victim of all these offences was your four-year-old son, whom I refer to as J.
[2] The charge of sexual violation carries a maximum penalty of 20 years’ imprisonment and the offence of making an objectionable publication carries a maximum penalty of ten years’ imprisonment. However, the Crown has sought to have me impose a sentence of preventive detention on the basis of the seriousness of your offending and the risk of your offending in this way in the future.
[3] I am going to consider the circumstances of the offending and identify what an appropriate finite sentence would be before turning to the possibility of preventive detention.
Circumstances of offending
[4] At the time of this offending you were separated from your son’s mother and living in a caravan at your mother’s address. When your son came to stay with you he would sleep with you in the caravan. The offending occurred on a night sometime between January and April 2014. The precise nature of the offending is known because you filmed it on your cellphone which you subsequently lost and which was handed to the Police.
[5] You took five separate videos over a period of about three hours. My description of what can be seen in them is taken from the summary of facts to which you pleaded guilty.
[6] The first video lasted one minute 21 seconds.4 You were clothed but your son was naked. You were both looking at images in the background and you were touching yourself and then asked your son if he wanted to do that to you which he agreed to. Your son then leaned forward so his mouth was in the area of your penis and he also put his hand on your penis for a time. When your son complained that it
was disgusting you told him it was nice and what you do when you love someone.
1 The offender’s name and identifying details are permanently suppressed pursuant to s 200 of the
Criminal Procedure Act 2011 in order to protect the complainant.
2 Sections 128 and 128B, Crimes Act 1961.
3 Section 124, Films Videos and Publications Classification Act 1993.
[7] The second video lasted seven minutes 28 seconds and was made about half an hour after the first offence.5 In this video you and your son are both naked and fresh marks from a slap or hit can be seen on your son’s back. You are holding J and then you insert your penis into his anus and thrust for a period. Despite his attempts to move away you hold him in place until you ejaculate. After that offence you told the boy in a stern voice not to tell anyone about this behaviour.
[8] The third video was taken about two hours later.6 It shows you and your son naked. You have a head-mounted torch on. Your son is lying on his stomach on the edge of a bed. You insert your penis into his anus. There is no indication that J is conscious while you are doing this. In particular, there are no signs of any response, moving or flinching during this activity. This video lasted for nearly a minute. I note at this point that when your caravan was searched by the Police they found a range of medications used for sedating. I am in no doubt from the description of the offending and the further offences to which I come to shortly that you sedated your son in order to offend freely without being deterred by what would have been an inevitable protest at the pain you were inflicting. I note that your lawyer today accepts that this is an inference well open to me.
[9] The fourth video made about four minutes after the previous offending lasts one minute 50 seconds.7 It shows the same kind of offending and your son’s anus appears red and inflamed and at the end of the recording he is seen lying limply with his hand hanging off the bed.
[10] The fifth video made about three minutes following the previous offence lasted one minute 17 seconds.8 J still appears to be sedated. You pick him up and put him on top of you, so that his back is on your stomach and you insert your penis into his anus and begin thrusting. There is still no sign of any response.
[11] In a subsequent interview your son said that he had blood in his poos after that incident, though there were apparently no ongoing physical injuries identified.
There can, however, be no doubt that J has been psychologically and emotionally
5 Sexual violation count 1/making objectionable recording count 2.
6 Sexual violation count 2/making objectionable recording count 3.
7 Sexual violation count 3/making objectionable recording count 4.
affected. His mother and grandmother now report serious difficulties with sleeping. J finds it difficult to fall asleep alone, waking during the night crying and screaming and having nightmares, though he will not tell his mother what the nightmares are about. He has begun bedwetting which he did not do previously.
A finite sentence
[12] The objective in sentencing in cases such as this is primarily deterrence and denunciation, to have the offender take responsibility for his actions and to provide for the interests of the victim. But also relevant are the prospects of rehabilitation and the need to impose the least restrictive sentence that is appropriate.
Sexual violation
[13] I start by considering what an appropriate finite sentence would be for the offending I have just described.
[14] The Court of Appeal has provided guidance for Judges sentencing in cases of sexual offending in its decision in R v AM.9 In particular, that case identifies different types of sexual offending and indicates appropriate ranges for starting points. Both the Crown and your lawyer accept that your offending falls within what is referred to as band 3. Offending in this band involves two or more of the factors that increase culpability to a high degree, such as a particularly vulnerable victim or
more than three of those factors to a moderate degree. Offending in this band attracts a starting point of between 12 and 18 years’ imprisonment and the Crown submits that a starting point towards the higher end of that band is appropriate. I too consider that this is where your offending falls. The particular features of your offending that lead to this conclusion are as follows.
[15] First, there was a degree of planning and premeditation. You had clearly thought ahead about your activities, arranged for them to be filmed, setting up the electronic device to record the offending, obtaining and putting on a torch to better illuminate the offending and using sedatives to ensure that you could offend without
protest from your young victim.
9 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
[16] Secondly, your son was extremely vulnerable. A four-year-old alone in the care of his father has no choice but to look to his father for protection. The vulnerability inherent in a four-year-old child was heightened in this case by him being sedated so that he could offer no resistance nor even cry out.
[17] Thirdly, a breach of trust will make offending of this kind more serious still and in this case it is difficult to imagine a more gross breach of trust than that of a father preying on a pre-school child.
[18] Fourthly is the harm done to J. There is a level of harm inherent in the offending physically, but more serious psychological and emotional harm is a factor that makes the offending more serious. It is evident from what I have described and from the victim impact statements that your son has and will continue to have significant psychological problems as a result of your offending.
[19] Finally, the fact that this abuse occurred over a period of hours, with multiple violations and that it was filmed, represents a level of degradation to your son that takes the offending to an even more serious level. It was not enough for you to offend in the most depraved way against this child. You also wanted to preserve and re-visit those images.
[20] In fixing a starting point within the range suggested for this type of offending I have had regard to other recent similar cases.10 In these cases starting points of between 15½ years and 17 years were taken. Taking all of the factors I have discussed into account, I consider that a starting point of 16 years fairly reflects the totality of the offending.
[21] Although the charge of making an objectionable publication will attract a separate concurrent sentence I do not uplift the starting point on that account, nor on account of the fact that there were five charges of sexual offending; those aspects are already taken into account in my assessment of an appropriate starting point.
[22] There is, however, one factor that does result in my uplifting the starting point. In 2003, when you were aged 15, you were convicted on two representative
10 R v Kupa [2014] NZHC 1415; Roberson v R [2013] NZCA 642; R v Jamieson [2012] NZHC
2871; H v R [2012] NZCA 479.
charges of doing indecent acts on boys aged under 12. It is also relevant that you were acquitted at the same time on charges of unlawful sexual connection, but that you accepted the actus reus of those charges and advanced the defence based on reasonable belief in consent. That offending had occurred over a period of about six months. Although those offences were more than ten years ago now, the fact that they were of a similar nature means that I must take them into account and I would uplift the starting point by a year to recognise that offending.
[23] There are some mitigating factors which would reduce a finite sentence. You are entitled to credit for your guilty plea. However, I would not be inclined to allow the full discount that would normally be given for an early guilty plea. It is true that the plea came at a reasonably early stage and there are good policy reasons to allow a discount even with a strong Crown case because the victim is spared giving evidence. But you only accepted responsibility for your offending once you realised that the Police had the video recording. You initially denied the offending. And even when the video footage was made known to you, tried to deflect responsibility by claiming that you suffered from blackouts. I would be prepared to allow a ten per cent discount for a guilty plea.
[24] In addition, I would allow a further five per cent for remorse. Despite different views being expressed by the psychologist who provided the report for the purposes of sentencing, you do express remorse in your affidavit and I accept that that expression is genuine.
[25] Your lawyer has also addressed me on personal issues, which you mention in your affidavit. You are now 27 years old. You were raised in an unhappy and dysfunctional family, suffering physical and verbal abuse from your father and exposed to pornography at a relatively early age. Your schooling was difficult as a result of learning difficulties and partial deafness. You were bullied. Your older brother, to whom you were close, died when he was 18. You have never sought employment. You have suffered from depression for some years and have been erratic with prescription medication but self-medicating with illegal drugs and alcohol. I am prepared to allow a further five percent on account of these factors.
[26] This means a discount of 20 per cent from the provisional starting point of 17 years. However, you are assessed as being at moderately to high risk of re- offending, a matter to which I come to in more detail shortly. It is sufficient to say that I would hold grave concerns regarding the safety of the community as a result of your likelihood of re-offending and that normal parole provisions would be sufficient protection. If imposing a finite sentence it would be my intention to also impose a minimum period of imprisonment of two thirds of the end sentence.
Making an objectionable recording
[27] A finite charge must also be imposed in the relation to the charges of making the objectionable recording, whether or not I go on to impose a sentence of preventive detention. An appropriate sentence, considering that issues of totality will be subsumed into the sentence on the sexual offending charges, would be 12 months on each charge, to be served concurrently.
Preventive detention
[28] I come then to the Crown’s submission that I ought to impose a term of preventive detention.11 Preventive detention, unlike a finite sentence of the kind I have been describing, is not intended to punish or deter. Its purpose is to protect the community from those who pose a significant and ongoing risk to the safety of others.12 Central to the decision to impose a sentence of preventive detention is the assessment of the risk the offender poses. In an earlier case, the Court of Appeal has said that there needs to be significant ongoing risk of serious harm before somebody is incarcerated indefinitely.13 I am mindful of that statement.
[29] There are three pre-conditions for imposing preventive detention. But even if they are fulfilled the matter is still at the Judge’s discretion. The three pre-conditions are that the offender has been convicted of a qualifying sexual or violent offence. You satisfy that requirement. The second is that the offender is aged 18 years or
more. You satisfy that requirement. The third and significant requirement for
11 Sentencing Act 2002, s 87.
12 Section 87(1) Sentencing Act 2002.
13 R v Parahi [2005] 3 NZLR 356 (CA) at [85].
today’s purposes is that the Court must be satisfied that the person is likely to
commit another qualifying offence if released at the sentence expiry date.
[30] The Sentencing Act identifies five factors that must be taken into account in considering whether to impose a sentence of preventive detention. The first of these is whether there is a pattern of serious offending disclosed by the offender’s history. I have already referred to your previous convictions. Those offences occurred when you were 13 and 14 years old and the victims aged five and seven. You were subject to a supervision order following conviction and received therapy. These offences occurred more than ten years ago and while you were an adolescent and your lawyer has urged me not to view the current offending as part of a pattern, but rather to view the initial offending as reflecting your immature adolescent self and to accept that the therapy you received at that point was effective and the current offending not part of a pattern but something unexpected resulting from a lack of impulse control.
[31] I do not accept that submission. I do regard your overall offending as showing a pattern. Both then and now you offended against very young boys and in a similar way, save that the current offending is much more serious.
[32] The second factor is the seriousness of the harm to the community caused by the offending. Sexual offending against children is a particularly pernicious form of offending that inflicts serious, long-term damage on victims, destroys families and sexualises children, with the result that victims frequently go on to offend against others. You have inflicted this kind of harm on your son. His mother and grandmother, who are responsible for his care, are suffering as a result. The consequences for this family are likely to be serious and long lasting.
[33] The third factor is information indicating a tendency to commit serious offences in the future. I have the benefit of a report from a registered psychologist and one from a consultant psychiatrist. These have been specifically provided for the purposes of assessing potential risk of re-offending in the context of a preventive detention assessment. Ms Jervis, the psychologist, conducted three separate interviews with you over a total of eight-and-a-half-hours in September 2014. In her report she has traversed your previous offending and your unhappy childhood and adolescence. She undertook an assessment based on two commonly used
instruments, the automated sexual recidivism scale (ASRS) and the Stable-2007. On the ASRS you would, once sentenced, fall into the medium-high risk category. Offenders in that category sexually re-offend at a rate of approximately twice the average. Departmental research suggests that seven per cent of child sex offenders in the medium-high risk category commit a further sexual offence against children within five years of release, rising to 16 per cent after ten years.
[34] Assessment under the Stable-2007 placed you in the high risk group as a result of the following factors; limited pro-social influences, general social rejection, sex pre-occupation, sex as a coping mechanism and deviant sexual interests. It also identified some evidence regarding a limited capacity for relationship stability, emotional identification with children, lack of concern for others, impulsive acts, poor problem solving skills and negative emotionality.
[35] Ms Jervis did identify as a protective factor the fact that you now acknowledge the need to assess the reasons for your offending. A possible protective factor could also be your mother’s support but that is uncertain because both at the time of your earlier offending and now, your mother has a tendency to minimise your culpability.
[36] Ms Jervis’ conclusion on all of these factors was that you are to be considered as being at high risk of future sexual recidivism and that if you were to offend again it would most likely be against a male, pre-pubescent child known to you through family or friendship ties. She identifies you as having multiple treatment needs and suggests a high intensity treatment programme.
[37] Dr Ian Goodwin provided a report following a two-hour interview with you in September 2014. He comments on your psychiatric history, including your chronic depression for which you have been treated by your general practitioner and two earlier suicide attempts. Also relevant is your description of long-term cannabis use from adolescence and an escalating use of alcohol in the 18 months leading up to the offending. I note that in your affidavit you say that at the time of the offending you were under the influence of alcohol, cannabis, synthetic cannabis and most likely methamphetamine.
[38] For all this, Dr Goodwin does not consider that you display any current signs of major mental illness, but you do have a significant substance problem. In terms of the risk assessment of future offending Dr Goodwin refers to the SVR20, a checklist of risk factors for sexual violence. He considers that you display a high degree of sexual deviation, in particular, a paedophilic attraction to pre-pubertal males, that there is a degree of physical harm to your son in this offending and a degree of minimisation by you of your previous sexual offending. Dr Goodwin concludes that, looking at all of these risk factors, he views you as being at moderate to high risk of similar re-offending without intervention, and that to mitigate this risk you need specific sex offender treatment.
[39] The fourth factor to consider is the absence of, or failure of, an offender to address the causes of his offending. Following your adolescent convictions you did receive treatment in the form of 18 one-on-one sessions with a psychologist. Self- evidently, that did not resolve whatever issues led to the current offending. It is clear that much more intense treatment is essential. It is heartening, though, that you do signal a desire to undergo such treatment.
[40] The final factor that I need to consider is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. This is the most difficult factor before me today. I am satisfied that in your current state you would pose a very significant and ongoing risk to the safety of the community. The more difficult question is what risk you would pose at the end of a finite sentence on the assumption that you have completed an appropriate sex offender’s treatment programme and addressed your drug and alcohol issues. Those are the things that concern me.
[41] At an earlier stage when your offending was much less serious, you received treatment commensurate with that level of offending and with the apparent level of risk you presented. That treatment concluded in February 2004. A few months later a psychologist, Stephen Els, provided a very positive report which referred to the treatment you had received, your better understanding of the dynamic risk factors relating to your offence, your having taken full responsibility for your offending and having addressed some of those high risk factors. He concluded that:
[Mr M] has addressed the dynamic factors involved in his offence. Hence at the time therapy was concluded [Mr M’s] risk of re- offending was assessed as low-medium.
[42] However, notwithstanding the apparent progress you made at that point it is evident that the factors that contributed to your earlier offending, including social isolation and deviant sexual interest are still prominent in your life. You have a dysfunctional family situation, virtually no social support outside that family, and longstanding deviant sexual interests. In addition your drug use has escalated significantly since adolescence and is now exacerbated by alcohol abuse. Given this history I consider that you are likely to commit another qualifying sexual offence if released at the expiry of your sentence and that a finite sentence would not provide adequate protection for society.
[43] Nor am I satisfied that a finite sentence coupled with an Extended Supervision Order would present a satisfactory alternative. The risk posed in this case is very real and very serious and notwithstanding your present willingness to address your many problems your past makes me wary of whether you will actually be able to make genuine progress. If you are unable to do so then I do not have confidence that an ESO would provide sufficient protection for the community. Rather, I consider that the lifetime parole and recall provisions associated with preventive detention give the greatest level of protection.
[44] I accordingly intend to make an order of preventive detention. In making such an order I am also required to make an order for a minimum period of imprisonment that is the longer of the periods required to reflect the gravity of the offence or for the purposes of the safety of the community.14 Grave though this offending is, I consider that the need to ensure the safety of the community is the factor that produces the need for a longer minimum period of imprisonment. It needs to ensure that you can receive treatment that is effective to address the problems that you face and looking at your history, it is evident that this will be a
long-term task. I consider that a term of less than ten years would be inadequate.
14 Sentencing Act, s 89.
Sentence
[45] So at the end of all of that, and I regret that it has been so lengthy, on each charge of sexual violation I impose a sentence of preventive detention with a minimum period of imprisonment of ten years.
[46] On each charge of making an objectionable recording I impose concurrent
sentences of 12 months’ imprisonment.
[47] I make orders for destruction of your laptop and your cellphone. Stand down.
P Courtney J
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