R v McGregor
[2017] NZHC 2150
•6 September 2017
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2016-006-001114 [2017] NZHC 2150
THE QUEEN
v
KYLE EDWARD MCGREGOR
Counsel: K B Bell for Crown
R A Harrison for Defendant
Sentence:
6 September 2017
NOTES ON SENTENCE OF COLLINS J
Introduction
[1] Mr McGregor, you appear for sentence having pleaded guilty to:
(1) two charges of sexual violation by unlawful sexual connection;1
(2) two charges of indecently assaulting a child under 12;2
(3) knowingly making an objectionable publication;3 and
(4) knowingly possessing an objectionable publication.4
1 Crimes Act 1961, s 128(1)(b) and 128B. Maximum penalty is 20 years’ imprisonment.
2 Section 132(3). Maximum penalty is 10 years’ imprisonment.
3 Films, Videos, and Publications Classification Act 1993, s 124(1). Maximum penalty is 14 years’
imprisonment.
4 Section 131A(1). Maximum penalty is 10 years’ imprisonment/$50,000 fine.
R v MCGREGOR [2017] NZHC 2150 [6 September 2017]
[2] The victim was a four year old female. I acknowledge her family members who are present at court this morning and who have suffered an enormous amount as a result of your offending.
[3] Mr McGregor, I state from the outset that I will be imposing a very long sentence of imprisonment. I will however not be imposing a sentence of preventive detention. I shall explain why I am not imposing a sentence of preventive detention during the course of my sentencing remarks. In sentencing you I shall:
(1) outline your offending;
(2) explain the victim impact statements;
(3)describe your personal circumstances and the relevant background reports;
(4) explain why I have decided not to impose preventive detention; (5) set out the sentence starting point for your offending;
(6) make adjustments to that starting point;
(7) explain why I am imposing a minimum period of imprisonment; and
(8) explain your final sentence.
Summary of facts
Sexual violation by unlawful sexual connection
[4] On 21 October 2016, you and the victim were alone together. You pulled your penis out exposing it to the victim and then attempted to put it in her mouth several times. Your penis touched her lips. She managed to pull away each time.
[5] You then lured the victim to another secluded area behind an abandoned building. You pulled the victim’s tights and underwear down and rubbed your fingers around her genitalia.
Indecently assaulting a child under 12
[6] You got the victim to masturbate you before you laid her down on the ground and rubbed your penis over her bottom and vagina area. You then ejaculated over her stomach and vagina.
Knowingly making an objectionable publication
[7] You took eight photographs of the victim that revealed your offending. You also made a video recording you sexually violating her. After your offending, you took the victim back to her parents. You told her not to tell anybody about what had happened.
[8] She disclosed to her father the offending that evening and he notified the police. You were located at your home address and interviewed at the police station. You admitted to the offending stating you could not help your urges and the opportunity that presented itself to you. You also stated that upon returning to your home you masturbated while watching the video and viewing the photographs you had taken.
Knowingly possessing an objectionable publication
[9] You then told the police you had a pen drive at home that contained a number of photos and videos of children that you had copied from internet chat rooms and forums. There were approximately 50 images obtained by police. You said you viewed these photos and videos from time to time as a means of helping to control your urges.
[10] The Crown relies on the descriptions and categorisations given by the police and contained in the schedule to the summary of facts. Mr Harrison, your counsel, has taken issue with these descriptions saying they are “vague”. The police have used
the five categories of seriousness adopted by the Court of Appeal in R v Zhu,5 with category one being the least serious and category five being the most serious. These levels of seriousness correspond with guidelines issued in 2007 by the United Kingdom Sentencing Guidelines Council.6
[11] While the United Kingdom Guidelines have been updated, the majority of your offending has been placed within category three (non-penetrative sexual activity between adults and children) and category four (penetrative sexual activity between adults and children). I consider it is appropriate to rely on these categorisations.
Victim impact statements
[12] We have heard from the victim’s mother. She understandably says no four year old should have to go through what her daughter went through. She has described your offending as “a parent’s worst nightmare”. The victim now suffers nightmares, behavioural changes, she is upset and she is very scared. The whole family has been impacted by your offending and the victim’s mother says that they will be affected for the rest of their lives.
[13] The victim’s father has also filed a victim impact statement. He says he is devastated by what has happened to his daughter. The victim has needed to attend counselling and has experienced significant behavioural changes. Your offending has placed additional strains on the family and for the victim’s father ’s work. He has incurred financial losses and difficulties with being able to fulfil his work obligations.
Personal circumstances
[14] You were 19 at the time of your offending and you are now 20 years of age. You have had a dysfunctional upbringing and you left school at 16. Prior to your arrest you had been living with your grandparents in Blenheim. It appears you have had a number of short term casual jobs but you spent most of your time at home playing
computer games.
5 R v Zhu [2007] NZCA 470 at [13].
6 Sentencing Guidelines Council “Sexual Offences Act 2003 – Definitive Guideline” (April 2007)
<sentencingcouncil.judiciary.gov.uk> at 109; Petersen v Department of Internal Affairs [2014] NZHC 2024.
[15] Your previous offending resulted in you appearing before the Blenheim Youth Court in 2014 and includes 11 offences of possessing objectionable material. You also have recorded an indecent act with intent to insult and threatening to kill/do grievous bodily harm arising from events in 2012. None of the previous offending involved physical contact between you and your victims.
Reports
Pre-sentence report
[16] On 16 May 2017, you were assessed in your pre-sentence report as posing a medium risk of reoffending and a high risk of harm. You blamed your offending on uncontrollable urges, not getting therapeutic help in the past, and time spent with your father when he was alive, who showed you pornography on the internet. You said you “hated yourself” for what you have done.
[17] The report-writer notes however your “opportunistic and organised choices around these current offences”. It appears you have not accepted personal responsibility and your main concerns were for yourself. It is noted intervention in the past for previous offending was not useful and the report-writer recommended attending a specialist sex-offenders unit during imprisonment. A sentence of imprisonment is recommended.
[18] I now turn to the two health assessor reports, which have been prepared as a result of the Crown seeking a sentence of preventive detention.7
Health assessments
[19] The following five points can be drawn from Dr McLeavey’s psychiatric report dated 16 May 2017:
(1)your acceptance of responsibility for past offending is limited in that you accept your present offending occurred but that “others have
overreacted”. You portrayed yourself as a victim due to your
7 Sentencing Act 2002, s 88.
upbringing and showed no remorse for the harm you have caused the victim;
(2)you have a combination of risk factors which result in an increased risk of sexual violence. These include being allegedly the victim of non- sexual child abuse yourself and a history of mental health issues;
(3)your offending has increased in terms of frequency and severity over time. You present at least a moderate risk of further sexual related offending;
(4)the most likely future scenario of non-contact sexual offending would be through the use of deviant websites and the most likely in terms of enacting sexual violence would be against a young or vulnerable female victim in an isolated environment; and
(5) in terms of treatment, you have previously been referred to the STOP Adolescent Treatment Programme but did not complete the programme. You now indicate you are “ready” for treatment and it is recommended you be assessed by Corrections Psychology Services to engage with an appropriate sexual offender’s treatment programme.
[20] The following conclusions can be drawn from Ms Lomme’s psychologist report dated 24 August 2017:
(1)your previous offending indicates a distorted perception of appropriate sexual boundaries and difficulties in emotional and sexual self- regulation. There has been a failure to address the risk factors through specific treatment;
(2)your offending for which you are to be sentenced today reflects a significant escalation in the seriousness of offending;
(3)your offending has occurred during an age during which you are still developing;
(4)you have expressed remorse for your offending and a willingness to engage in further sexual offending targeted treatment; and
(5)your risk of re-offending is assessed currently as medium to high but taking into account your age and engaging in offence-focused treatment, this may change. It is recommended you attend an intensive residential programme for treatment.
Preventive detention
[21] There is jurisdiction for a sentence of preventive detention to be considered.8
Ms Bell, for the Crown has submitted that preventive detention is necessary for the protection of the community. Having regard to s 87(4) of the Sentencing Act 2002, I have weighed the following factors:
(1)Pattern of serious offending. Although you have no prior convictions, you do have a history in the Youth Court which shows a pattern of deviant sexual behaviour, although no sexual offending that involved contact with victims. Your current offending involved contact sexual offending and demonstrated a significant escalation in the seriousness of your offending.
(2)Seriousness of the harm to the community. Your offending has impacted a four year old victim and her family. Your conviction for possession of objectionable publications involves additional victims and more community harm.
(3)Information indicating a tendency to commit serious offences in the future. The health assessors consider you are at a moderate to high risk of re-offending. They have also however expressed caution in this risk assessment, because of your relatively young age and your potential to
change in the future.
8 Sentencing Act 2002, s 87(2).
(4)Addressing the causes of your offending. While you expressed remorse to Ms Lomme, Dr McLeavy and your pre-sentence report writer said your remorse was limited. This is concerning, as is the blame you have placed on others and your failure to accept full responsibility. Your willingness to engage in rehabilitation does however demonstrate to me that you are at least making some steps towards addressing the causes of your offending.
[22] Your age is a factor that weighs against imposing a sentence of preventive detention. Recently however, the Court of Appeal has upheld a sentence of preventive detention imposed on a young man who, like you, was 19 at the time of his offending.9
The Crown properly acknowledges that case can be distinguished from yours. Your offending did not involve additional physical violence and unlike the other case, you have not had a history of physical violence. Your risk of reoffending is also assessed as being lower than that of the young man whose case I have been referring to.
[23] The Sentencing Act states as a key principle in relation to preventive detention that a lengthy determinate sentence is preferable if this provides adequate protection for society.10 Weighing all of the relevant considerations, and having particular regard to your potential for future rehabilitation, I consider that a finite sentence is more appropriate.
Starting point
[24] Your lead offences are the two charges of sexual violation by unlawful sexual connection. The tariff case which provides guidance on the starting point for this type of offending is the Court of Appeal’s judgment in R v AM.11 The Court set out starting points for three bands of offending, based on the presence of certain aggravating
features – that is, the things that make your offending more serious.
9 Antonievic v R [2017] NZCA 87.
10 Sentencing Act 2002, s 87(4)(e).
11 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
[25] I will set a starting point for your sexual offending against the four year old victim, and then impose an uplift in relation to your possession of objectionable publications.
[26] Your offending contains the following aggravating factors, although to varying levels of degree:
(1)Planning and pre-meditation.12 There is an element of planning in your offending in the steps you took to get the victim alone. There was however no grooming or extensive planning and your offending appears to have been substantially opportunistic.
(2)Vulnerability of the victim.13 The victim was particularly vulnerable being only four years of age. This is a particularly aggravating feature.
(3)Harm to the victim.14 The harm caused to the victim is of a severe psychological nature. She has required counselling and she has undergone significant behavioural changes as a result of your offending. Her family has also suffered as a result of your offending. This is an aggravating factor.
(4)Breach of trust.15 There was a significant breach of trust because the victim’s parents entrusted you to look after the victim while they were attending to a family member in hospital. This was also a very aggravating factor.
(5)Scale of your offending.16 While your offending was in substance a one-off incident, it is compounded by the degradation caused by your decision to photograph and video record the victim when you were abusing her. I consider this feature of your offending to be a
particularly aggravating factor.
12 Sentencing Act 2002, s 9(1)(i); R v AM, above n 11, at [37].
13 Sections 9(1)(g) and 9A(2)(a); R v AM, above n 11, at [42].
14 Section 9A(2)(b); R v AM, above n 11, at [44].
15 Sections 9(1)(f) and 9A(2)(c); R v AM, above n 11, at [50].
16 R v AM, above n 11, at [47].
(6)Degree of violation.17 Whilst there was no actual penetration, your offending involved skin on skin touching of the victim’s vagina with both your fingers and penis, and you ejaculated over the victim.
[27] Section 9A of the Sentencing Act requires the Court to take into account specified aggravating factors if applicable in a case involving violence against a child under 14 years. To the extent that sexual violation offending is inherently violent, s
9A applies. Although the factors are implicit in the aggravating factors I have already identified, I confirm that I have taken into account the defencelessness of the victim, the serious or long term psychological effect on her and the magnitude of the breach of the relationship between you and the victim.
[28] I have referred to a number of comparable cases to determine the appropriate starting point for your offending,18 including those cases referred to in R v AM.19
[29] The Crown submits your offending should be placed within band three, warranting a starting point of between nine and 18 years’ imprisonment. Mr Harrison submits your offending fits within band two of R v AM and should therefore attract a starting point of somewhere between four to 10 years’ imprisonment.
[30] While I have identified a number of aggravating factors, I am not undertaking a mathematical evaluation. Instead, I am assessing all of the circumstances, including the overall seriousness of your offending.20
[31] In undertaking this assessment, I have reached the conclusion that a starting point of nine years’ imprisonment is the appropriate starting point. This starting point reflects the principle that a higher starting point may be justified in cases where a finite sentence is preferred to a sentence of preventive detention and where the need to
protect society justifies a longer sentence than what might otherwise be appropriate.21
17 At [52].
18 Rua v R [2014] NZCA 599; R v Walker [2017] NZHC 1300; R v Joe [2013] NZHC 1047 and
Overton v R [2011] NZCA 648.
19 R v Harris CA320/93, 15 November 1993; R v Stewart CA515/05, 15 August 2006; R v Roach CA375/89, 8 February 1990; R v Patuwai CA199/02, 11 March 2003; R v K (CA558/08) [2009] NZCA 107 and R v P (CA86/95), 10 August 1995.
20 R v AM, above n 11, at [36] and [49].
21 R v Ward [1976] 1 NZLR 588 (CA); R v Leitch [1998] 1 NZLR 420 (CA); D (CA197/2014) v R
Uplift
[32] I will now also impose an uplift for your possession of objectionable publications. In my assessment, that offending is separate and discrete from the offending that took place on 21 October 2016, which I have treated as being, in effect, one spate of offending. Mr Harrison has referred me to three cases.22 I have however found it useful to refer to Mallon J’s decision in Petersen v Department of Internal Affairs,23 which sets out the United Kingdom Guidelines for offending of this kind and a recent case involving similar offending, namely Police v Johnston,24 where a starting point of 15 months’ imprisonment was adopted for a larger number of images.
[33] I have had regard to the fact that the maximum penalty was increased on 7 May
2015 from five years to 10 years’ imprisonment.25
[34] While your possession charge does not relate to distribution or production, it is concerning that of the approximately 50 images around half were in category four. I consider an uplift of 12 months is appropriate, meaning the provisional sentence is
10 years’ imprisonment before making any deductions.
Adjustments to the starting point
Totality
[35] Section 85 of the Sentencing Act requires me to consider the totality of your sentence for what is in effect two distinct sets of offending.26 In my assessment,
10 years is too great a sentence for your total offending. I accordingly reduce your
sentence by six months to reflect the totality principle.
[2014] NZCA 373 and Bell v R [2017] NZCA 90.
22 Webb v R [2016] NZHC 2966; Stewart v Department of Internal Affairs [2014] NZHC 2290 and
Tilyard v Police [2016] NZHC 1377.
23 Petersen v Department of Internal Affairs, above n 6.
24 Police v Johnston [2016] NZDC 4667.
25 Films, Videos, and Publications Classification (Objectionable Publications) Amendment Act
2015, s 6.
26 Sentencing Act 2002, s 85.
Youth
[36] Ms Bell has referred me to R v Putt,27 where the Court of Appeal stated that in appropriate cases a Youth Court history may offset the discount that may otherwise have been given to the offender for his youth. In that regard, I note your numerous previous offences for possession of objectionable materials in particular. Your offending for which you are to be sentenced today is clearly the most serious offending you have engaged in to date.
[37] I have at the same time taken note of the fact that you were 19 years of age at the time of offending and the health assessor’s opinion that your offending occurred at a time when you are still developing. I have also referred to Overton v R28 where the Court of Appeal applied significant discounts for youth, mental health issues and difficult upbringing. I consider a discount of around ten per cent, namely 12 months is appropriate.
Guilty plea
[38] It is accepted you are entitled to a full discount for your guilty plea of close to
25 per cent. That results in a final sentence of six years and four months’
imprisonment.
Minimum period of imprisonment
[39] Given the nature of the offending and your assessment as at a moderate to high chance of re-offending, it is appropriate to impose a minimum period of imprisonment of three years and nine months’ imprisonment. In doing so, I have had regard to the following purposes set out in s 86 of the Sentencing Act:29
(1)holding you accountable for the harm you have done to the victim and the community by your offending:
(2) denouncing the conduct for which you were involved:
27 R v Putt [2009] NZCA 38 at [18] and [19].
28 Overton v R, above n 18.
29 Sentencing Act 2002, s 86(2).
(3) deterring you and other persons from committing the same or a similar offence; and
(4) protecting the community from you.
[40] Mr Harrison has urged me not to impose a minimum period of imprisonment before you are eligible to be considered for parole because he informs me treatment and counselling will be deferred until you are eligible for parole. If that is right it is difficult from where I sit at the moment to understand why there should be a deferral and I would strongly urge the prison authorities to ensure that you receive as quickly as possible the treatment that you so desperately and obviously need.
Name suppression
[41] There is currently an interim order suppressing your name in order to protect the identity of the victim.
[42] There is nothing that I have said in this decision which could identify the victim. There is no basis upon which it is possible to justify continuing to suppress your name. The interim name suppression lapses now.
Conclusion
[43] Mr McGregor, please stand.
[44] On the two charges of sexual violation by unlawful sexual connection, I am sentencing you to six years and four months’ imprisonment with a minimum period of imprisonment of three years and nine months.
[45] On the two charges of indecently assaulting a child under 12, I am sentencing you to five years’ imprisonment.
[46] In relation to the charges under the Films, Videos, and Publications
Classification Act 1993, I am sentencing you to nine months’ imprisonment.
[47] All sentences are concurrent.
[48] Stand down.
D B Collins J
Solicitors:
Crown Solicitor, Nelson
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