R v Martin

[2019] NZHC 1461

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI 2018-054-1759

[2019] NZHC 1461

THE QUEEN

v

MATTHEW SIGNAL MARTIN

Hearing:	25 June 2019
Counsel:	E R Pairman and M Wilkinson for Crown J Younger for Defendant
Sentence:	25 June 2019

SENTENCE OF SIMON FRANCE J

[1]    Mr Martin, you appear as a 31 year old man for sentencing in relation to sexual offending on a four year old girl. You have a previous conviction for sexual offending against a girl then aged between eight years and 12. The fact that there are two such convictions means that the sentencing has been transferred to this Court so that it can be considered whether you should be sentenced to what is known as preventive detention. A sentence like that means you would have no fixed release date but would only be released if authorities were satisfied the risks you pose were under control.

R v MARTIN [2019] NZHC 1461 [25 June 2019]

Offending

[2]    It is helpful to begin with your earlier offending. When you were 17 you started offending against a girl aged eight. The offending lasted more than three years. It involved touching and repeated digital penetration. Aged 21, you were sentenced to three years and six months’ imprisonment.

[3]    The present offending occurred around nine years later. It is a particularly bad feature of this offending that the young victim is the daughter of your first victim. Unexpectedly, you found yourself alone with the young girl and you offended against her. The offending involved removing her clothing and placing your mouth on her genital area, and then putting your penis in her mouth. The offending was of a short duration.

[4]    Around the time of the disclosure of this offending, a search warrant was executed which disclosed a large number of pornographic images in your possession. A significant number of objectionable images involving children were found.

Victim impact statement

[5]    We have all heard the victim impact statement prepared by the young girl’s mother. The statement reflects the long-lasting damage this type of offending causes. You have indicated Mr Martin an interest in further treatment. I take you to be genuine in that and tell you directly that you need to take on board and understand the real hurt and damage your offending has caused if the treatment is to succeed.

Assessments

[6]    There have been a number of reports prepared, and all reach similar conclusions. It is plain you have a sexual interest in young girls and without treatment pose a high risk of reoffending. When you were sentenced to prison as a young man you received a sustained course of individual therapy. This involved 50 sessions with a psychologist. A safely plan was prepared. Despite all this you have reoffended and that is a concern. It is commonly recommended that you take part in a long-term

specialist course for treatment of sex offenders. You have indicated a willingness to participate, and your counsel advises you wanted to do last time but were too young.

[7]    Your counsel has raised your intellectual capacities as relevant, so I set them out. You have been assessed on numerous occasions. An earlier assessment concluded you were of borderline intellectual functioning but more recent assessments are more positive, placing you on the low average point on a scale. It is plain you have memory issues, and I accept there is a level of diminished capacity.

Preventive detention?

[8]    The key decision is whether to impose the sentence of preventive detention. As noted, I have received a number of reports that assess you now as a high risk of re-offending but consider that a full time intervention programme may reduce that risk. This treatment would be different from the intervention you had at the time of your first offending when you were still a young man.

[9]The main factors that would support this sentence are:

(a)the fact you have twice offended against young girls. The objectionable photos you had in your possession reinforce your sexual interest in young girls and therefore your risk. Expert assessment says your risk is high until you have treatment;

(b)the fact you have had considerable treatment in the past and it did not manage to prevent this offending is a concern. There is some criticism of your efforts to implement these lessons, but I recognise you were relatively young;

(c)to my eye the circumstances of this offending are concerning. It was not premeditated but it is troubling that presented with a brief window of opportunity, you offended in this way. It is not surprising you are presently assessed as a high risk.

(d)Notwithstanding these features, I have decided these are a number of factors the make preventive detention the wrong sentence:

(i)first, you pleaded guilty at an early stage and have been clear in your instructions that the matter progress to final resolution without the victims needing to appear;

(ii)consistent with your plea, you have indicated you want to undertake a substantial therapeutic sex offenders course. You expressed a similar wish when serving your first sentence but were too young. You are interested in being helped and that is an important factor in whether these treatments work;

(iii)the reports support you undertaking the treatment courses and, as noted, there is a reason to consider they may have an impact;

(iv)there is a lengthy gap of nine years between the offences, indicating that you are capable of living in society without offending like this. It is important in the assessment exercise and I contrast it with cases like this where the offender reoffends shortly after release;

(v)there is the possibility, and indeed probability, of extended supervision orders when you come to be released. These will control where you are and who you associate with. They can greatly reduce risk situations and can last for 10 years or more;

(vi)you are relatively young. Thirty-one is a young age to sentence someone potentially to spend the rest of their life in prison. Sometimes that is necessary but here you have not had the opportunity to undertake one of these specialist programmes; and

(vii)the finite sentence I will impose will be long enough to enable suitable treatment to occur.

Finite sentence

[10]   I turn now to the sentence. There are a number of decisions by higher counts that give guidance on what sentence you should get. The prosecutor and your lawyer have looked at them and agree on what they say about your case. I agree with their conclusions.1 I take a starting point of seven years.

[11]   I am going to increase that to reflect this is the second time you have committed an offence of this type. I limit the increase because of your age when you committed the first offence and the fact it was 10 years ago. I add one year.

[12]   I give you credit for your guilty plea (25 per cent). I accept that there is opportunity to reduce that further for other factors2 but, having read the reports and their suggestions as to treatment, and bearing in mind the risk you are presently assessed at, I do not think anything less than six years offers enough protection to the public. A finite sentence of less than six years would alter the balance concerning prevention detention because of a reduced amount of public protection. I need to maximise that level of protection within the context of a fixed sentence.

[13]   For the same reasons, I am going to make an order that you serve at least half of that sentence before you can be released. The reality Mr Martin is that you will serve all of it unless you take part in the treatment and respond to it.

Please stand.

1      I consider that the  examples  in  R  v  AM  [2010] 2 NZLR 750 that bear most similarly are R v McKenzie ([115] of AM) and R v C (CA43/98) ([117] of AM). They are both unlawful sexual connection cases in terms of the AM bands, but one of the two violation charges here falls within those bands. Recognising there is also the lead offence which falls in the rape band, the cases suggest a starting point of seven years, the middle of rape band one, is correct. The key factors are the victims age, the short duration of the offending and its one-off nature. I see seven years’ as towards the top of the range but consider that appropriate given the age of the victim.

2      I considered Ms Younger’s submission on a causative link between offending and intellectual capacity but do not accept it is established. I see no reason to consider Mr Martin was not fully aware of what he was doing and its wrongness. I do not regard his moral responsibility as reduced.

[14]   On each charge of sexual violation, you are sentenced to six years’ imprisonment. They will be served concurrently. I order that you serve half of that period before you are eligible for parole.

[15]   On the sentence of possessing objectionable material you are convicted and discharged.

[16]   I authorise the release of all the reports prepared for this sentencing to future treatment providers.

Simon France J