R v MacShane HC Auckland CRI 2010-004-5197

[2010] NZHC 1232

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-5197

THE QUEEN

v

MICHAEL AARON MACSHANE

Hearing:         20 July 2010

Appearances: N Walker and K Mills for the Crown

J H Wiles for the Prisoner

Judgment:      20 July 2010

SENTENCING NOTES OF ELLIS J

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Counsel:       J H Wiles, PO Box 941, Auckland 1140

R V MACSHANE HC AK CRI-2010-004-5197  20 July 2010

[1]      Mr MacShane you have pleaded guilty to one charge of attempted sexual conduct with a child under 12, one charge of knowingly making an objectionable publication and five charges of knowingly possessing an objectionable publication. The maximum penalties for those offences are 10 years imprisonment (for the attempted sexual conduct and for making the publication) and five years imprisonment on the possession counts.

[2]      Like I said to you right at the start, this is an unusual case.  Mr Wiles will have explained to you, and you will have just heard him say again, that he and the Crown agree that you should go to prison.  That is not just because the offences to which you have pleaded guilty are serious and because there are real concerns that the  community needs  protection  from  you  but  also  because  that  is  where  it  is believed that you will be most likely to get the help you need, giving you the best chance for the future.  I am going to come back to that later.

[3]      As I have said there are a number of things the law says that I must say to you before I get to the actual sentence that will be imposed but before I begin that I do also want to acknowledge the support that you are receiving from some members of your family who are here today and I regard that as a very positive sign also for the future.

[4]      What I now have to do is set our briefly the facts of your offending.

Facts

[5]      On 25 September 2009 a friend of your great aunt was helping her to find a missing document on her laptop computer.   The friend found in the Recycle Bin links to two deleted folders named “kiddy porn” and “kiddy porn2”.

[6]      A search of the computer and of your flash drive revealed a total of 428 sexually explicit photos of young (prepubescent) girls.  Also found on the flash drive was a Word document that you had made and which contained 12 images of naked

young girls.  It is relevant that although the images depicted children in nude poses that were designed to arouse the viewer, none of them showed actual physical abuse or sexual activity.

[7]      Later, Police discovered that in the first half of 2009, you had on several occasions  attempted  to  penetrate  your 5  year  old  step-sister’s  vagina  with  your fingers.  Your step-sister is too little to tell the Court about how she feels about what you did to her but I have read your mother’s victim impact report.  There is no doubt that  you  hurt  your  sister,  both  physically  and  emotionally,  and  you  have  also damaged your relationship with some members of your family.

[8]      Although you may not have appreciated it at the time the pornography that you downloaded and created on your great aunt’s computer also causes harm to others.  Such material has been said by Parliament to be injurious, or harmful, to the public good.  And of course we do not know, but can imagine, what kind of harm is suffered by the children, the little girls, who are made to pose for these kinds of pictures.

Pre-Sentence and Other Reports

[9]      To your credit, and as I have said, you pleaded guilty to all charges at the earliest opportunity in the District Court.   However just before  you  were to be sentenced in that Court, Crown Counsel became aware of a number of psychological reports and other material that indicated that you were at a higher risk of reoffending than had first been understood.

[10]     The Crown’s concerns were increased by the fact that while you were in prison on remand you drew some disturbing pictures of girls or women and wrote some stories with the theme of violent rape involving young girls.   You admitted doing this but said you thought it was a “healthy way to vent” your thoughts.  This is important too because it signals to me that you want to deal with the problem you have but also that you cannot do that appropriately without help.   As well, your drawings and stories emphasise the very real concerns that doctors and others have

about ongoing risk to the community, and to young girls in particular, unless you get the help you require.

[11]     Because of the further information that had come to light the question of preventive detention was raised.   If preventive detention were ordered it would be very difficult for you to ever be released from jail.  It is because preventive detention became a possibility that you are now being sentenced in this court rather than the District Court.  Further reports were ordered so that an assessment could be made about what kind of risk you posed and what was the most appropriate sentence for you.

[12]     I  have  read  all  the  reports  on  the  Court  file.    These  are  reports  from psychiatrists and psychologists as well as the usual presentence report and the probation report.  Dr Bradley’s report is particularly helpful and I will come back to that later.

[13]     You are 19 years old and the eldest of four half brothers and sisters.   You have never had contact with your natural father.  Your mother was very young when she had you and had three long-term partners while you were growing up.  You say you don’t remember much of your childhood, especially before you were 9, but you do remember being physically abused by one of your stepfathers for a time.  You were also left living by yourself when you were 14 or 15.

[14]     You left high school at 17 with level one qualifications in mathematics and English.   You worked as a kitchen hand in Napier after leaving school and subsequently moved to St Heliers to reside with your great aunt and uncle.  You do not have  any apparent  problems  with  alcohol  or  drugs.    You  do  not  have  any previous convictions.

[15]     All the reports and materials provided to the Court refer to your admitted strong sexual attraction to young girls.   You have regular sexual thoughts about female children which sometimes involve raping and harming them.  You have an underlying difficulty sometimes with anger.  You have said that you realise you need counselling to stop your thoughts.  When you were asked about what you did to your

step-sister, you said “I feel pretty grotty about it” and you have on numerous occasions expressed a desire to change and get help.  However the reports also say that you find it difficult to empathise with your step-sister and do not seem to really appreciate what harm you have done to her.  Similarly it seems from the reports that you have difficulty feeling any real remorse.

[16]     While  you  were  at  Intermediate  in  2005–2006,  you  were  enrolled  in  a Wellstop Adolescent programme in Napier.  This is, as I understand it, a counselling service  for  young  people  with  sexual  behavioural  problems.     The  file  notes (according to Dr Bradley) say that you were engaged and largely compliant with the programme but your mother missed a lot of appointments and did not comply with the safety plan.  Later you were unable to attend a subsequent Wellstop programme because you had by that time turned 18.

[17]     The  assessors  are  in  general  agreement  that  there  is  a  high  risk  of  you sexually re-offending against female children, potentially in a violent manner.  None of them think that you suffer from a diagnosable major mental illness.  Most of the recommendations are that you should be isolated from the community until your sexually deviant behaviours can be properly addressed.

[18]     In terms of the counselling and treatment you obviously need, Dr Bradley in particular recommends that you undertake intensive treatment at Te Piriti Special Treatment Unit in Auckland Prison.  Very significantly, the Principal Psychologist at Te Piriti has agreed in your case to override their intake criteria and waitlist so that you can begin the programme as soon as possible after sentencing.  But this will only be possible if you are serving a sentence of more than two years imprisonment because otherwise there will not be enough time for you to complete the programme.

[19]     Although Dr McCormick, the psychiatrist whose report was commissioned by your lawyer, suggested that your needs could be adequately addressed in the community through the SAFE programme, Mr Wiles also now agrees that Te Piriti is the best option for you.

Appropriate Sentence: discussion

[20]     I turn now to consider the sentencing options that are available to you.

[21]   In this respect I record, firstly, that home detention is not sought or recommended. Home detention is rarely appropriate in cases of sexual offending involving children.[1]     Secondly, I record that after considering all the reports the Crown does not consider that preventive detention would be an appropriate sentence in your case and I also agree with that.

[1] R v S (CA) at [12].

[22]     There  are  certain matters which  I am  required  by law to  consider when determining your sentence.  I must try, through my sentence, to hold you accountable for the harm you have done, and to promote a sense of responsibility in you.  I must denounce what you have done, and try and stop both you and others from acting in this way in future.  As I have already said, there is also a very particular need here both to protect the community and to try and help you to address the things that have led to your offending.

[23]     But I also need to take into account the seriousness of what you have done, and I need to try and be consistent with other sentences imposed in similar cases, although in your case these are limited.  And I must also try and impose the sentence that is the least restrictive outcome appropriate in the circumstances.

[24]     It is agreed that the attempted sexual conduct with a child under 12 charge should be taken as the lead offence, in terms of setting the starting point for your sentence.   The things I must take into account when assessing how serious your offending was include:

a)        The vulnerability of your stepsister, who was only 5 years old at the time;

b)        The difference in age between you and her;

c)        The abuse of trust that was involved because you were her adult half- brother; she should have been able to expect that you would look after her, not hurt her

d)The fact that what you did to her was at her home, where she should have been able to felt safe;

e)       The harm that you caused your step-sister – both physically but also emotionally, and in the longer term

f)        The premeditation involved in what you did to your step-sister: and the Crown says principally that you sought out opportunities to be alone with her;

g)        The fact that you offended against her more than once; and

h)Then depending on how I choose to deal with it in terms of the sentence, the additional charges relating to child pornography.

[25]     In terms of sentences in other similar cases, the Crown has provided me with examples   involving   sexual   offending   with   the   same   maximum   terms   of imprisonment (10 years), such as doing an indecent act on a child under 12 (s 132(3) Crimes Act)[2] and attempted sexual violation (under Crimes Act s 129).  There is also what is called a guideline judgment from the Court of Appeal in relation to sexual offending generally, although it does not specifically encompass attempts and I view its relevance here with caution.[3]

[2] Walsh v R HC Hamilton CRI-2008-419-77, 6 October 2008; R v M CA387/2009, 5 October 2009;

R v Horgan CA434/2009, 19 November 2009; Stevens v Police HC Hamilton CRI-2007-419-133,

11 December 2007. 

[3] R v AM (2010) 24 CRNZ 540 (CA).

[26]     The specific aggravating features in your case, together with the relevant cases, suggest that a starting point of between 18 - 24 months imprisonment would ordinarily be warranted on the attempted sexual connection charge.

[27]     The Crown submits (and Mr Wiles agrees) that either an uplift from that starting point or additional (cumulative) sentences should be imposed for the child pornography charges.   Again, based on the nature of your offending, the relevant

cases[4] and general sentencing principles this would have the effect of adding around six months to the starting point of your sentence.

[4] R v Clode [2008] NZCA 421; R v Zhu [2007] NZCA 470.

[28]     It is agreed that your early guilty pleas warrant a discount of 33% from whatever sentencing starting point is adopted.   Some further discount would also ordinarily be given because you are only 19 and because you have no previous convictions.  These discounts would necessarily reduce any end sentence, based on the figures I have just given you, to below the two year mark.

[29]     As I have said, however, both Mr Wiles and Ms Mills agree that the main issue in your case is how to ensure that you get the counselling and treatment you need in order to cease being a threat to young girls.   Both counsel support the recommendation that completion of the Te Piriti programme is most likely to achieve this.   I have also already noted that the Principal Psychologist in charge of that programme has said that they will bend the rules for you so that you can begin treatment as soon as you are sentenced.  The difficulty is, however that in order for this to happen your final sentence would need to be more than two years imprisonment.   In reaching such a figure I also need to take into account the nine months that you have already spent in custody on remand.

[30]     Thanks to the very helpful submissions of counsel, I am aware that there are a number of cases where sentences have been imposed that were not justifiable solely on the basis of the seriousness of the offending, but were nonetheless warranted after taking into account the need to protect the community.[5]   So in your case, I can take into account the need to protect the community unless and until you had received appropriate treatment when determining your sentence.

[5] R v Ward [1976] 1 NZLR 588 (CA); R v K (1990) 6 CRNZ 210 (CA); R v Leitch [1998] 1 NZLR

420 (CA); R v Shedden HC Auckland T024003, 12 December 2003. 

[31]     I acknowledge there are limits to the extent to which the term of a sentence of imprisonment may be extended for protective purposes[6].  But I do not consider that what I propose to do here will breach those limits.  It is also relevant that a somewhat

longer than usual finite sentence is necessarily still less restrictive than a sentence of preventive detention, which may well have been open to me here.

[6] R v Leitch [1998] 1 NZLR 420 (CA).

[32]     Taking into account all these matters I consider that the starting point for the attempted sexual conduct with a child offence should be three years and four months imprisonment.  I then impose sentences of six months imprisonment on each of the objectionable material charges, to be served concurrently as between themselves, but cumulative on the 40 month sentence for the lead offence.

[33]     The   total   of   46   months   imprisonment   will   then   be   discounted   by approximately 35% to get an end sentence of two years six months imprisonment to take account of your guilty pleas and other mitigating factors.  For the avoidance of any future doubt I record again that this end sentence is accepted by both your counsel and by the Crown to be appropriate in the special circumstances of your case.

[34]     Accordingly, and in formal terms Mr MacShane, I sentence you to two years and six  months imprisonment.   It is perhaps unusual for a judge to say that  a sentence of imprisonment offers real hope for the future but in your case I think it does.  I trust and hope that you will benefit from the Te Piriti programme and that you receive the help that you most certainly need, and which I also think that you genuinely want.

[35]     There shall also be a destruction order in relation to the flash/thumb drive on which the objectionable material was stored.

[36]     Please stand down, Mr MacShane.

Rebecca Ellis J