R v MacDonald aka Parsons - [2016] NZHC 1497

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2015-019-005963 [2016] NZHC 1497

THE QUEEN

v

GREGORY SHANE MACDONALD (AKA) GREGORY SHANE PARSONS

Hearing: 1 July 2016

Appearances:

J Tarrant for the Crown
R J Laybourn for the Defendant

Sentencing:

1 July 2016

SENTENCING NOTES OF HINTON J

Solicitors/Counsel:
Almao Douch, Hamilton
R J Laybourn, Barrister, Hamilton

R v MACDONALD (AKA) PARSONS [2016] NZHC 1497 [1 July 2016]

Introduction

[1] Mr MacDonald, you appear for sentencing today after having pleaded guilty to one charge of indecent assault on a child under 12. The maximum penalty for this charge is 10 years’ imprisonment.

[2] You appear in this Court because a sentence of preventive detention is an option, as you have heard.

The facts

[3] The summary of facts to which you have pleaded guilty is this: on 15 October

2015, you were at your home address in Whangamata. You noticed three young children playing at a reserve behind an adjacent property.

[4] You approached them, asking if they wanted to play a game with you. Two of them ran away, but a five year old girl remained. You took her by the hand and led her to an adjoining property.

[5] At the rear of that property was a hut/bar area. There, you removed her skirt, pants and underwear before removing your own lower clothing.

[6] You began to touch her around the buttock area, before being interrupted by her mother calling for her from their home address. This resulted in the child putting her clothes back on and running to her home address.

[7] You then got dressed and returned to your own address, where you subsequently overdosed on prescribed medication. You were airlifted to hospital.

Personal circumstances

[8] I turn to address your personal circumstances.

[9] You are 45 years old. You were born in New Zealand, but moved with your mother and siblings to Australia at a young age. You have lived there since, but were

deported in 2011, after having spent the majority of your time in prison since about

1985.

[10] You have a long list of previous convictions, the majority of which relate to sexual offending against children. Based on the health assessors’ reports, it seems you attribute your offending to paranoid thoughts or voices telling you that your targets (being 4-6 year old girls) are laughing at or making fun of you. This then leads to feelings of hurt or anger, with the voices telling you that you should “punish” them for treating you that way.

[11] You also said that you target young girls because “[you] could manipulate

and punish them for the way [you] were dealt with” as a child.

[12] You said you were sexually abused as a child, first by your uncle, and then by a foster father while you were in his care. You also said that this foster father taught you, when you were 9 to 12 years old, to sexually abuse young girls.

[13] You left…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 1497
Decision Date: 1 July 2016

CaseChat Overview and Summary

The case of R v MacDonald, also known as R v Parsons, involved a sentencing hearing for the defendant, Gregory Shane MacDonald, who had pleaded guilty to the charge of indecent assault on a child under 12 years of age. The maximum penalty for this offence is 10 years’ imprisonment, and the court considered whether a sentence of preventive detention, an indeterminate prison sentence, was appropriate given the circumstances. MacDonald had a long history of sexual offending against children, with numerous previous convictions dating back to when he was 13 or 14 years old. His offending pattern involved targeting young, pre-pubescent girls, often luring them away from public spaces under the guise of playing a game, before sexually violating them. MacDonald’s psychiatric history, including paranoid schizophrenia and borderline personality disorder, was also a significant factor in the sentencing deliberations.

The legal issues before the court included determining the appropriate starting point for the sentence, considering the nature and extent of MacDonald's offending, and assessing whether the statutory criteria for imposing a sentence of preventive detention were met. The court had to balance the principles of accountability, deterrence, community protection, and rehabilitation against the backdrop of MacDonald's extensive criminal history and high risk of reoffending. The victim impact statements from the child’s mother and counsellor highlighted the profound and lasting trauma experienced by the victim, reinforcing the need for a robust sentence.

The court decided that a sentence of preventive detention was appropriate. It found MacDonald met the statutory criteria for such a sentence, as he was likely to commit another qualifying offence if released at the end of any finite sentence. The court was satisfied that MacDonald’s history of serious, predatory offending against children, combined with his failure to respond to previous treatment and rehabilitation efforts, indicated a significant and ongoing risk to the community. Therefore, the court imposed a sentence of preventive detention with a minimum non-parole period of five years’ imprisonment.

Orders