R v MH

[2013] NZHC 709

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-069-1343 [2013] NZHC 709

THE QUEEN

v

MH

Hearing:         9 April 2013

Counsel:         A F Pilditch & S T Simmers for Crown

A T Sykes & T T Tuari for Prisoner

Judgment:      9 April 2013

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Rotorua

R V MH HC ROT CRI 2012-069-1343 [9 April 2013]

[1]      MH, you appear for sentence for two offences on 7 January 2012, indecently assaulting your niece S, a girl then aged 12 years, and immediately afterwards, it is now agreed, injuring K, another niece of yours, aged 17, with reckless disregard for the safety of others.

[2]      You are for sentence in this Court because jurisdiction was declined in the District Court out of a fully justifiable concern that you may qualify for a sentence of preventive detention. That is the principal issue I have to resolve today.

[3]      When you first appeared on 5 February 2013 I adjourned sentence to find out more about your offending against adolescent girls, and your conduct in custody, most recently on remand. I have not found what I now know to be reassuring.

[4]      Equally, I have heard today from one member of your family especially, who sees you in a quite different light. I have also a series of letters from members of your family that are consistent and I have your own letter today which is more encouraging.

Index offences

[5]      On 7 January 2012, the date of these two offences, you were confined to your home serving a sentence of home detention imposed in November 2011, in place of

18 months imprisonment imposed for assault with intent to injure, two common assaults and an escape from custody.

[6]      You were then confined to your home by yourself but on 7 January a woman friend of yours visited you and you drank together. You were joined by your two nieces and a young friend of S. Your own friend left and your nieces and their friend stayed the night.

[7]      At  3  am  the  police  were  called  to  an  address  close  to  yours,  after  K complained you had assaulted her. S also complained but the police were unable to act on her complaint until after a video interview on 2 February 2012.

[8]      Acting immediately on K's complaint, the police that night went to your home and at 3.45 am found you drunk and semi conscious. On the kitchen bench they found a capsule of cannabis oil, a spotting knife, cardboard tubes and a plastic drink bottle cut in half, all  consistent with the  smoking of  cannabis. You were abusive and refused to answer any questions.

[9]      S, aged 12, whom you assaulted first, said that when you and she were in the lounge alone together, and you were very intoxicated, you wanted to have sex with her. You grabbed her and hugged her. She told you not to but you tried to take her clothes off and ripped them. Though she told you she did not want to have sex with you, you told her she could have sex with her uncle.

[10]     To get away from you, S went to the bedroom where her friend was sleeping. You followed her. You kissed her neck. She pushed you away. You grabbed her buttocks and squeezed them. You touched her breasts. You put your hand down her front and attempted to undo her brassiere. When she again moved away you kicked her in the head with your bare feet. You punched her three times to the head.

[11]     Then you went into your own room, where K was asleep on your bed. You straddled her. You punched her a number of times to the head alternating between fists, and growling. You kicked her in the head and she lost consciousness briefly. Then you hit her head twice more with a hard object.

[12]     Fortunately, S sustained no injuries. The effect on K was more considerable. K felt she was safe in your house. You attacked her, she says, with no reason when she was asleep. She was very frightened. She thought she was going to die. K suffered a three centimetre head laceration and spent the balance of the day in hospital.

Crown submissions

[13]     The Crown submits that your offending and the risk that you might offend in the same way on release from a finite term of imprisonment requires that you be sentenced to preventive detention but accepts that to be a 'finely balanced' issue

because you are 26 years of age. Alternatively, the Crown seeks a finite sentence in the range five - seven years imprisonment and a minimum five year term.

[14]      In essence, the Crown submits, you have a propensity to be violent. You have  22  convictions  for  violent  offences  over  seven  years.  Your  many  finite sentences of imprisonment have not deterred you. You have continued to offend violently, often soon after release.

[15]     You have been violent to women or girls before, the Crown says, but in this instance you assaulted your two nieces in your own home, one sexually and the other out of sexual frustration. You indecently assaulted S and assaulted her further when she refused to have sex with you. You inflicted injury on K while she was asleep. That was distinct serious offending.

[16]     The Crown submits that what level of risk you would present on release from a finite sentence is difficult to identify. The psychiatric report is not definitive but says that the risk depends on your willingness to engage in treatment. The psychological assessment suggests that you will in all likelihood reoffend.

[17]     Thus, the Crown submits, preventive detention is called for because there is a tangible risk that if you refuse treatment and you are released back into the community, you are at high risk of reoffending sexually and in a violent way.

[18]     Otherwise, the finite sentence the Crown contends for, five - seven years, calls for cumulative sentences from a starting point of two - three years for the indecent assault on S and a two year starting point for the offence against K, each heightened on account of your previous history and the need to protect the community.

[19]     The minimum term the Crown contends for, a full two-thirds minimum, is called for, the Crown says, to protect the community, as well as serving more completely the other purposes and principles of sentence.

[20]     You accept, your own counsel says, that your indecent assault on S was aggravated by violence and your assault on K by the fact that she was asleep and you rendered her unconscious and injured her. Aggravating both, you accept, is that you assaulted your nieces in gross breach of trust while serving home detention.

[21]     All of that said, your counsel submits, this offending, even when set against your history of violent offending, cannot justify preventive detention. A finite sentence,  heightened  if  need  be,  will  meet  any  future  risk  to  the  community, especially  if  you  are  treated  within  prison  and  released  on  a  robust  treatment program.

[22]     Your past offending, your counsel submits, is generally speaking at a low level, and you do not have a settled propensity to offend sexually, let alone do so in a violent way. Many of the sentences you have served, your counsel says, were short sentences in the range two - six months, too short to enable you to receive therapy.

[23]     You were genuine, your counsel says, when you assured the probation officer who assessed you that you will engage with a Departmental psychologist to mitigate any risk of further offending and engage in alcohol and drug counselling. Your remorse is real. Your whanau, from whom I have a number of letters, and one of whom has spoken today, live in the area where you live and will support you, as they have today.

[24]     Your counsel contends that each of your offences warrants a starting point of no higher than 18 - 20 months, before any aggravating or mitigating factors. Your counsel contends that those sentences ought to be imposed concurrently, not cumulatively, but does accept that the sentence may be heightened to protect the public. Your counsel  does not  stand against  a  minimum term completely if the sentence is imposed concurrently.

[25]     There is no issue that you qualify formally for a sentence of preventive detention.  Your  indecent  assault  is  a  qualifying  sexual  offence  and  attracts  a maximum sentence of seven years imprisonment.1 Nor is there any question that you were over the age of 18 years at the time of this offending, the second threshold requirement. You were 25 years of age.2

[26]     The issue is rather whether preventive detention is called for to protect the community from any significant and ongoing risk to its safety.3   I must also be satisfied that you are likely to commit another such qualifying offence if released at the expiry of a finite sentence.4

[27]     In considering these issues I am obliged to take into account five factors: (i) to what extent you have a history of serious offending; (ii) how seriously this present offending of yours has harmed the community; (iii) whether you have a tendency to offend seriously in the future; (iv) any absence or failure on your part to address the causes of your offending; and (v) the principle that a lengthy determinate sentence is preferable to preventive detention if that will protect the community.5

[28]     In my assessment of those factors I am entitled to take into account your conduct while in custody, and your response to any program offered you.6  That assessment is not confined to your response to previous sentences. It extends to your conduct while most recently on remand.

[29]     If, as a result of that more complete fivefold analysis, I am satisfied that all five factors point towards preventive detention, that sentence is still not mandatory. But neither is it a sentence of last resort. It is imposed to protect the community from

any significant and ongoing risk.7

1      Section 87(2)(a).

2      Section 87(2)(b).

3      Section 87(1).

4      Section 87(2)(c).

5      Section 87(4) subss (a), (b), (c), (d), (e).

6      R v Vincent [2007] NZCA 138.

7      R v C (CA 249/02) [2003] 1 NZLR 30, 33-34.

[30]     In striking a balance between preventive detention and a finite sentence, the absence of any lengthy prior term of imprisonment, and any prior warning of preventive detention, can tell against it being imposed in a finely balanced case.8 So too the ability to impose a heightened finite sentence,9  and the possibility of an

extended supervision order on release.10

[31]     If I do impose on you a sentence of preventive detention I must also impose on you a minimum term of imprisonment of five years or more,11  reflecting the gravity of your offending, and safeguarding the community,12  taking into account your age and the risk you pose.13 Both must be considered.14

Pre-sentence report

[32]     Your pre-sentence recommends that you be sentenced to imprisonment with post release conditions and, as your psychiatric and psychological reports do more extensively, outlines relevant aspects of your personal life and previous offending.

[33]     Your assessor found you guarded but cooperative at interview but minimal in your responses. You were reluctant, your assessor found, to discuss your present offences. You denied any sexual arousal. You did say that your ability to control yourself diminishes the more you drink, as was very evident in this case.

[34]     You told your assessor also that you feel deep remorse. You undertook to engage in alcohol and drug counselling, as well as with a Departmental psychologist, to mitigate any risk of further offending.

Psychiatric report

[35]     The  psychiatrist  who  assessed  you  found  you  logical  and  coherent  and without any disorder of thought. He was aware, I should add, that there is epilepsy in

8      R v Bailey CA102/03, 22 July 2003; Pritchard v R [2010] NZCA 403.

9      R v C [2003] 1 NZLR 30 (CA).

10     R v Mist [2005] 2 NZLR 791.

11     Section 89(1).

12     Section 89(2)(a).

13     Section 89(2)(b).

14     R v C (CA 249/02).

your family. He did not give that any emphasis and whether it deserves emphasis he did not say. He did find your responses often very superficial and unelaborated.

[36]     Your early life, as you described it to him, he accepted must clearly have been difficult. In your early years your parents were heavy drinkers until, in your early teenage years, each found sustaining religious faith. For a significant part of your early life, you were with an aunt and uncle and you saw violence between them. You were frequently disciplined, you thought unfairly.

[37]     You were also bullied at school, though  you had many friends. You left school at the age of 15 and first attended a course for what you described as 'troubled kids'. You worked as a labourer for perhaps two years but for most of your adult life, you pointed out, you have been in and out of prison and unable to sustain work.

[38]     You confirmed that you drank alcohol regularly on weekends, often with friends, a pattern of alcohol use that apparently has figured in your family. You said you drank to the point of intoxication and on occasions black outs. You smoked cannabis regularly and used other substances occasionally.

[39]     As to your two offences, you accepted that you had assaulted S and K by punching and kicking them. You could not pinpoint why beyond the fact that you were intoxicated. At the time you said you were going through a rough patch with your partner and living separately.

[40]     The  girls  came  to  your  home,  you  said,  to  drink  alcohol.  You  became intoxicated and one thing led to another. As to the offence against S, you admitted that you, to use your words, 'tried it on with her'. Then, when that did not work out, you turned violent.

[41]     As to your 2007 conviction for unlawful sexual connection with a young person between 12 - 16, she was, I understand in the vicinity of 15 and you were 18 -

19, you said that the relationship had extended over several months and that you had believed she was older.

[42]     The psychiatrist says there is reason to believe you were aware she was under

16 and that you assaulted her or threatened to assault her with a knife. You denied any sexual attraction to children. You described S, though 12 years, as physically mature.

[43]   The psychiatrist concludes that, while you have not offended sexually extensively, your violent offending has escalated in these, your most recent offences. He was sceptical about your claim that you realised your lifestyle had to change. He noted that you had said this in the past. You had begun psychological counselling in prison, but that had ceased with your sentence. You did not respond to supervision or comply with home detention.

[44]     The psychiatrist notes that you had previously been assessed as at high risk of reoffending violently and as at medium to high risk of sexual reoffending; risks that have eventuated in your offences for sentence.

[45]     The psychiatrist describes you as showing signs of anti social personality disorder and anger dyscontrol, both explicable when set against your earlier and more recent life. Whether you will be at risk of committing a further qualifying sexual or violent offence, he says, cannot readily be predicted. Even the likelihood that you will reoffend violently is 'uncertain and problematic'.

[46]     Your future risk, the psychiatrist says, will depend on your ability to modify the factors that contribute, your alcohol use and your anger. You have not completed violence prevention programs or been treated for abnormal sexual behaviour so your ability to respond to treatment is uncertain.

[47]     The psychiatrist concludes by putting in issue whether you will respond to a further finite term or to therapeutic counselling. Your anti social personality disorder, he considers, stands especially in the way of the latter. Age can be modifying, he says, but your offending has yet to decrease.

Psychological report

[48]     The psychologist, who assessed you, also found that you engaged minimally in the interview, that you declined to answer some questions and offered 'don't know' replies to several. You gave answers inconsistent with previous assessments.

[49]     The psychologist notes your extensive criminal history since 2004, when at age 18 you were convicted of assault with a blunt instrument. Since then, she says, you  have  many  convictions  for  violence  against  men  and  women,  police  and property. You  have  offended  violently  in  the  community,  in  prison,  in  a  Court holding cell, in the back of a police car, when sober and while intoxicated, and soon after release from prison.

[50]     You did accept, the psychologist notes, that your offences probably did have a big effect on the girls' lives and you hoped they would forgive you. You denied any responsibility for the drugs found.

[51]     On remand, the psychologist says,  as at the date of her report,  you had accrued three misconducts and been held in high security for between four - seven days.  You  explained  the  first  two  as  arising  from  attacks  from  other  inmates prompted by these present offences. You are presently being managed, she says, as capable of unpredictable violence.

[52]     You have, the psychologist says, received individual treatment in the past. Between September 2009 - May 2011 you received individual counselling in prison. That ceased when you were released. It resumed in the community in June - July

2011 but that too ceased when you were remanded in custody for the offending that led to your home detention sentence.

[53]     The psychologist considers that your early life, in which alcohol abuse and physical violence were normal, led you to develop entrenched beliefs normalising

'the abuse of substances, that others could be controlled by violence, that women were inferior to men, and that others were unreliable and untrustworthy'.

[54]     That  cast  of mind,  the psychologist  considers,  resulted  in  you  becoming hyper vigilant from a young age, then resorting to drugs and to becoming violent, seemingly unpredictably,  to  meet  danger  or  when  thwarted  or  challenged. Your present  offences  are  two  such  instances,  as  is  your  most  recent  misconduct  on remand.

[55]     As  to  your  potential  to  reoffend,  the  psychologist  says,  according  to ROC*ROL, you are at high risk of reoffending. According to VRS, 18 of 20 items figure moderately or strongly. According to ASRS, you are at medium to high risk of re-offending sexually.  According to STABLE-2007, again you are in the high risk category. According to ACUTE-2007, there is reason for concern.

[56]     The convergent effect of these static and dynamic measures, the psychologist says, suggests that you are at high risk of further violent and sexual offending and that amongst your potential victims are females with whom you are in some form of relationship, who threaten or challenge you, especially if you are intoxicated.

[57]     You are, the psychologist considers, at risk of violent offending for the next five years and of sexual offending for the next ten. Your most recent offences, the psychologist says, suggest that while girls and young women may be at risk, given the level of physical maturity of both your victims, adult women may be also.

[58]     There has to be an issue, the psychologist concludes, about how positively you will respond to therapy within prison. You had individual treatment over two years but offended seriously within months of your release. You ought to undergo group therapy but have refused that in the past. Individual treatment is unlikely to be enough.

Supplementary material

[59]     When you first appeared I asked to know more about your convictions for assaults on females. Your first was in 2005 on a woman aged 32 years with whom you had been in a relationship. Your second in 2006 was on a 15 year old girl, a

friend of your then 17 year old girlfriend. Your third was on a girl aged 15 years and involved another victim aged 17.

[60]     I asked also to know whether any of those assaults were on the 15 year old girl with whom you had unlawful sexual connection in 2006. You had then, I am told, been in a relationship with her for some 18 months. None of the assaults relate to her but you threatened to kill her on 9 January 2008, nine days after your release from the sentence imposed for offending against her.

[61]     I asked to have confirmed when and broadly why you received counselling in prison. It has been confirmed that it was between September 2009 - May 2011 while you were serving sentences imposed on 7 May, 2 July and 22 October 2009. You were also counselled for one month in June - July 2011, before being sentenced to the eventual sentence of home detention. The precise nature of that counselling remains privileged, as I accept it must, but the fact that you were counselled is a factor relevant to sentence.

[62]      Next I asked to know the terms of your sentence of home detention. I am told they prohibited you from consuming or possessing alcohol or illicit drugs and apart from the cannabis oil located when the police arrived, you were intoxicated. I am told you also removed your ankle bracelet in the early hours of 7 January 2012.

[63]     Finally, I asked about your conduct while serving earlier sentences and on this present remand. I am advised that you behaved violently or were involved in violence 11 times between 11 October 2008 - 1 September 2011. On your most recent remand, I am advised, since 7 January 2012 you have been involved in six incidents  involving  assaults  or  fighting  with  other  prisoners  and  two  involving threats to Corrections officers.

[64]     I have since received and considered submissions from counsel about this material and I take into account particularly, your counsel's submission that as to the assaults on young women, you were yourself then young. Also that there was a background to one or more. They were not simply acts of targeted or even random violence.

[65]     I take into  account  also,  as  your  counsel  says,  that  in  your most  recent instances of misconduct, two at least, there may well have been other prisoners involved, as a result of the offences for which you are now for sentence.

[66]     Finally, I take all of that conduct into account, not in a literal sense, but as demonstrating that in the last 13 or so months your conduct has certainly not been encouraging, when I consider the options on sentence. Indeed none of this most recent information is reassuring.

Conclusions

[67]     This most recent information confirms that, consistent with the reports, your instinct  to  violence  has  become  seemingly  more  entrenched  and  your  present offences certainly suggest that you may now have an instinct to offend violently when thwarted sexually.

[68]     Also troubling is that you have proved undeterred by finite sentences of. You have offended violently while in prison undeterred by close supervision and misconduct penalties and, more materially, you have not responded to extensive individual counselling and have proved unwilling to undergo group therapy.

[69]     You are right on the cusp of a sentence of preventive detention and the Judge in the District Court rightly declined jurisdiction to enable that possibility to be considered.

[70]     I have decided finally not to impose preventive detention on you and to impose  rather  a  finite  sentence,  because  you  have  never  undergone  a  lengthy sentence of imprisonment, you have never been warned about the possibility of preventive detention, I have the ability to impose a heightened sentence on you, and a  minimum  term,  and  an  extended  supervision  order  may  be  imposed  on  your release.

[71]     Highly material, to my mind, is that you have not yet faced up in prison to structured group therapy, and not just therapy of your own choosing. You have yet to

confront, in common with others around you, the causes of your offending. Unless you do that, and soon, you will continue to be a risk to yourself, and to the community. It is the need to encourage you to do that, in my mind, that tips the balance.

[72]     I now then turn to the sentence that I am going to impose on you and in imposing a finite sentence on you, I accept the Crown's submission that your two offences call for cumulative sentences.

[73]     Though one offence followed the other, one was sexual offending and the other arose out of sexual frustration, and both were fuelled by alcohol and they were close in time, they were quite distinct offences involving two quite distinct victims who suffered individually. That must be marked on sentence. Each was a serious offence in its own right.

[74]     Your indecent assault on S, I consider, warrants a two year starting point. You singled S out, the younger of your nieces, knowing her age. You tried to convince her that  your  relationship  with  her  gave  you  that  right.  You  pushed  your  hands underneath her clothing and touched her breasts. You assaulted her by kicking her when she refused you. It is fortunate you did not injure her.

[75]     You injured K, an offence described as injuring with reckless disregard for the safety of others, but in reality with intent to injure, by attacking her when she was asleep. You made a sustained assault on her with both your fists and you ended with a blunt object. You caused her a three centimetre head laceration. It is very fortunate that that was the only injury she suffered and proved not to be lasting. That offence, I consider, lies within band two R v Harris15  and justifies also a starting point of two years.

[76]     For each of those offences I increase that starting point to three years, three months: to mark your history of violent offending, especially as it relates to young

women; to mark the fact that you offended on home detention affected by alcohol if

15     R v Harris [2008] NZCA 528.

not drugs; and to mark the fact that, in the interests of the community, you are on the cusp of a sentence of preventive detention and the reasons why.

[77]     The only discount to which you are entitled is for your pleas. They came very late. You pleaded to the indecent assault after S had given her evidence. Your plea to the offence against K was on the morning of the hearing. I understand that as to the former, that may have been because the offence dates were still separate at that time. I will allow you for each of those offences a discount of three months, reducing your sentence for each offence to three years.

[78]     You must also, I consider, serve for each of those offences a minimum term, most especially to protect the community, but also to serve more completely the other purposes of sentence. Your propensity to offend violently soon after release makes that essential.

[79]     I also wish to bring home to you that, even once you reach the end of the minimum term and become eligible for parole, whether you will be granted parole will very much depend on how you have responded to your sentence and especially, I consider, whether you have been prepared to undergo group therapy and benefited from it.

[80]     It may well be that  your family is  willing to  support  you once  you  are released but, unless you leave prison able to look after yourself much more than you are now and respecting others much more than you do now, your family's support will not be enough. It is what you do in prison that will count, in my view.

[81]     In the result, I sentence you to imprisonment for three years for the first offence and three for the second, a cumulative sentence of six years imprisonment. I sentence  you  to  a  minimum  term  of  two  years  for  each  of  those  offences,  a cumulative minimum term of four years. I give you this warning. If you should

offend in this way again you may expect a sentence of preventive detention.

P.J. Keane J