R v Miles
[2016] NZHC 611
•8 April 2016
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI-2015-083-1070 [2016] NZHC 611
THE QUEEN
v
GAVIN JOHN MILES
Hearing: 8 April 2016 Counsel:
H C Mallalieu for Crown
S J Ross for defendantSentence:
8 April 2016
SENTENCING NOTES OF DOBSON J
[1] Mr Miles, my task this morning is to sentence you on a number of convictions for sexual offending against young girls and a young boy between 1990 and 2002. It is inevitable that there will be a further term of imprisonment imposed beyond that which you are already serving for the more recent offending in 2012 and
2013. The main focus has to be on whether the indefinite sentence of preventive detention is appropriate. Your offending and your age at the time of committing the offences qualifies you to be considered for preventive detention and the Crown has argued that I should be satisfied you are likely to commit another qualifying sexual offence if you are released at the expiry of a finite sentence, if that was what I now
imposed.1
1 Sentencing Act 2002, s 87(1).
R v MILES [2016] NZHC 611 [8 April 2016]
[2] You should understand from all that has gone on in the sentencing process that there is quite a lengthy sequence of considerations that I have to undertake and it is necessary for me to set them out. However, I appreciate your focus will be on the ultimate answer so I tell you immediately that I am satisfied the sentence of preventive detention is appropriate and that is what I will be imposing.
[3] But you need to bear with me, please, as I go through the sequence of considerations that are not only to explain my reasons for that decision today, but to record my analysis on all those considerations for your custody and your subsequent supervision.
[4] I will say relatively little about the detail of your offending. The summary of facts is drawn almost entirely from your own confessions, so there is no dispute about it. I am sentencing you on three convictions for sexual violation by unlawful sexual connection. Because of the time span, one of those is subject to a maximum penalty of 14 years’ imprisonment and the later ones to a maximum of 20 years’ imprisonment.2 There are also six convictions for indecency with a girl under 12,
which carries a maximum penalty of 10 years’ imprisonment,3 and there are two
convictions, again for indecency but of a different type, with a girl under 12, where again the maximum penalty is 10 years’ imprisonment,4 and there is one conviction for indecency with a boy under 12 with carries the same maximum of 10 years’ imprisonment.5
[5] At least between about 1991 and 2002 you lived in West Auckland and frequented areas near the Henderson Creek. You used opportunities to target young girls between the ages of four and eight who you would encounter playing in that area. There are patterns both of grooming very young girls and also opportunistic indecent assaults on them in the course of playing with them or carrying them across the creek or situations of that type. The sexual assaults ranged from groping the girls over or under their clothing to digital violation and a recurring pattern of you making
oral contact with the girls’ genitalia. You describe on occasions presenting your
2 Crimes Act 1961, s 128(1)(b).
3 Crimes Act 1961, s 133(1)(a).
4 Crimes Act 1961, s 133(1)(c).
5 Crimes Act 1961, s 140(1)(c).
erect penis to young girls, and to rubbing yourself between the buttocks of one young girl.
[6] Your description of the offending, as it occurred in the years between 1997 and 1999 included a practice of stripping naked in front of young children, showing them pornography and continuing with the forms of sexual violation that had occurred earlier. You were, in that period, aged between 25 and 27.
[7] In your confession to the Police, you said that you treated the Henderson Creek as your hunting ground, that you were unsure of the number of children you had “fooled around with”, but that you hoped that the number was fewer than 50. There are no victims who can both be identified and who are prepared to respond in terms of the impact on them of this offending, but it is inarguable that conduct of this type with such young children is more than likely to have been either serious right up to life-threatening for at least a vast majority of them.
[8] Mr Ross has acknowledged in his submissions to me this morning that you have confeessed to more extensive offending than what was involved in the charges that I am sentencing you on, and the breadth of that previous offending may have a bearing on the assessment of the future risk when I come to that aspect of the analysis.
[9] More recently than all of that, you offended between December 2012 and early 2013 against a four year old girl and you have been convicted and sentenced for that separate offending. That involved a number of occasions on which you touched the four year old in a sexual manner, including sucking her nipple, rubbing her anus and her vagina with your hand and, on occasion, rubbing against her with your erect penis. You masturbated while touching her and you had her touch your penis. In this offending, you also took photographs of the victim’s vagina and had a practice of licking it. You are serving a sentence of five years’ imprisonment imposed in September 2013 for those convictions.
[10] The sequence of considerations I am undertaking involves, first, doing a re-sentencing exercise to construct what the total sentences would have been on the
2013 convictions if, at the same time, you were being sentenced for the historical offending between 1990 and 2002. I will assess how much longer the appropriate sentence would have been and whether a minimum period of imprisonment (MPI) would be imposed.
[11] Next, in light of that length of sentence and any MPI, and assuming your entitlement for release at the end of the finite sentence, I will consider whether the case is made out for preventive detention by contemplating the risk of your committing another qualifying sexual offence, and whether the greater protection of the community that is provided by preventive detention is in fact justified.
Finite sentence
[12] So, turning to a re-sentencing for all of your admitted offending that you have been charged with, as if it was before the Court in September 2013.
[13] In doing this, I have to be mindful that in imposing sentences for historical offending, the level of sentence has to reflect the sentence that would have been imposed at the time of the offending. You may be aware that there has been a trend to longer sentences for sexual offending that have applied since 1990, and in some cases the maximum sentence for the same offending has been increased by Parliament in the Crimes Act 1961.
[14] Sentencings for sexual offending since March 2010 have been the subject of a guideline decision from the Court of Appeal in R v AM.6 There are bands of increasingly more serious types and circumstances of sexual offending and the combination of your offending would fit within band three from that guideline case where the Court of Appeal suggests starting points between nine and 18 years’ imprisonment.
[15] Comparisons from before 2010 include a 2006 appeal in R v H, and counsel are agreed in their written submissions that that is probably the best yardstick to use
here.7 There were 13 charges in that case against eight female victims who were
6 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
7 R v H (CA101/06), 18 September 2006
aged between four and 15, where the offending was over a 15 year period up to
2005. The most serious offending involved fondling and kissing the genitalia of a very young child, attempting digital penetration and the offender placing his penis on another child’s exposed genitalia. On a Solicitor-General’s appeal, the Court of Appeal suggested a starting point of 10 years’ imprisonment would have been
appropriate.8
[16] The Crown argued that if we were sentencing you for all of the offending at the end of 2013, the appropriate starting point would be between 13 and 14 years’ imprisonment. Mr Ross says that it should be between 12 and 13 years, arguing that the 10 year starting point adopted in the District Court for the 2012/2013 offending was at the top of the range.
[17] I would fix a starting point for all the offending at 13 and a half years.
[18] It is agreed that you would be entitled to a significant discount for mitigating factors that include your relative youth at the time of the earlier offending, the assistance you provided to the Police in disclosing the extent of your offending and the ready guilty pleas you made, plus your expression of remorse. On your earlier sentencing, a combined discount of 50 per cent for all those factors was allowed and, with respect, that appears to me to be appropriate. So that would provide a finite end sentence for all the offending of six years and nine months’ imprisonment.
[19] The next question is whether, in imposing a finite sentence for all your offending, an MPI would be appropriate, and counsel are agreed that it would be necessary. The Crown would contend for the maximum under s 86, which is two thirds of the finite sentence. I would certainly accept that an MPI at 60 per cent would be appropriate. That would mean an MPI of four years would be imposed. Now you may have heard Mr Mallalieu at the start this morning suggest that there
may be constraints, or at least complications, in the Court’s power to impose
8 Also relevant is R v Grinder CA78/03, 26 August 2003, offending against 13 children aged four to 16 over a 25 year period. Digital penetration and oral contact as well as masturbating male victims and touching of genitalia of female victims. The sentencing judge considered a finite term of eight years would have been imposed, but instead preventive detention was. The Court of Appeal upheld the sentence of preventive detention.
sentences that would be cumulative on the 2013 sentence and include the appropriate
MPI, but I proceed with my analysis on the assumption that that could be managed.
[20] So, the next stage is to evaluate the application for preventive detention against the prospect of a finite sentence of six years and nine months, which would be subject to an MPI of four years.
[21] As I mentioned at the outset, the type of your offending and your age at the time it was committed qualifies you for consideration under s 87 of the Sentencing Act 2002, which provides for preventive detention. I have to consider the likelihood of your re-offending in a similar way, taking into account five factors:
(a) any pattern of serious offending disclosed in your offending history;
(b)the seriousness of the harm to the community caused by your offending;
(c) information indicating a tendency to commit serious offences in the future;
(d)the absence or failure of efforts by you to address the causes of your offending; and
(e) the principle that a lengthy determinate sentence – a finite sentence –
is preferable if this provides adequate protection for society.
[22] As is usual in such cases, once the Crown indicated that it wanted preventive detention to be considered, two reports have been prepared from appropriate experts to assess the circumstances of your offending, and particularly the likelihood of your committing offences of the same type in the future, if you were to be released after serving a finite sentence. In this case, I have considered the reports of the psychologist, Mr Badenhorst, and the psychiatrist, Dr Lehany. You will recall being interviewed by them and have had copies of their reports about you. I note from Mr Ross this morning that you are essentially in agreement with the assessment of
you by the psychiatrist, Dr Lehany. In light of the content of those reports, and all the other information that I have had available, I come to the five factors under s 87.
Is there a pattern of serious offending?
[23] Your situation is unusual for a candidate for preventive detention in that the nature and scale of your historic offending is almost exclusively a reflection of what you have volunteered. There are risks that you may have overstated matters, but similarly a risk that you may have not told us about all of it. I necessarily take you at your word and rank yours as a qualifying pattern of serious offending. It has spanned more than 25 years, it has involved numerous victims, it is an ingrained pattern of serious criminal behaviour and it adversely affects significant numbers of very young and vulnerable victims.
Seriousness of harm to the community?
[24] Victim impact statements were filed for the sentencing in 2013, but there is no personal input from victims of your historic offending. I accept the Crown’s submission that harm is self-evident and it is safe to draw an analogy from the level of harm with which I am familiar from other cases, where offending of this type has occurred. That reflects a very serious level of harm to the community.
[25] I do not understand Mr Ross to dispute that there is considerable harm caused by offending of the type on which you are now being sentenced.
A tendency to commit serious offences in the future?
[26] The psychological assessment undertaken by Mr Badenhorst included two modes of clinical assessment. On the automated sexual recidivism scale (ASRS), you were assessed as being in a medium to low risk category. That assessment is based on static risk predictors, which uses the previous convictions to assess the likelihood of re-offending.
[27] Secondly, you were assessed on the violence risk scale – sexual offender version (VRS-SO) that assesses both static and dynamic factors and estimates the level of risk of further sexual offending. You were assessed as being in the high risk
category on that mode of measurement. The factors identified as problematic were a sexually deviant lifestyle, sexual compulsivity, deviant sexual preferences and intimacy deficits.
[28] Mr Badenhorst’s overall conclusion is that you should be considered at a high
risk of further child sexual offending.
[29] Dr Lehany’s psychiatric assessment observed that your sexual offending has been chronic and only ceased once you were imprisoned. He notes your tendency to minimise the impact of your offending, considers you have little or no conception of the damage that you would do to young girls by abusing them, even going so far as to say you hope that they found it enjoyable. Dr Lehany suggests that this can be linked to attitudes that condone and support sexual violence.
[30] Dr Lehany states it is not possible to give specific probability estimates of the chance of future offending, particularly where the offending has been relatively unusual as it is here. However, Dr Lehany considers that it is highly unlikely that the risk of re-offending could ever be safely considered as being low without an appropriate level of supervision, and that future risk will depend on the availability of, and response to, appropriate treatment.
[31] The pre-sentence report writer assessed you as being at a high risk of re-offending, that your pattern of offending is opportunistic and that there are no protective factors in place, apart possibly from the circumstances of your employment. You were observed to lack awareness of what attracts you to a certain child, or to understand what your motivations are for offending.
[32] Mr Badenhorst recognises that older age can be a protective factor against sexual offending, with some reduction in risk after the age of 50, but more prospect of reduction in risk after the age of 60. There is nothing in the reports that suggests a reduction in the level of risk can be expected in your case, as you age further. The overall impression from the reports is that you have been a chronic offender, that you are unable to explain the sources of your offending, and that, unless physically or
chemically constrained, a repetition of the same type of offending is a very real, if not high, risk.
[33] I mention chemical constraint because you acknowledge a measure of assistance from recently being prescribed an anti-androgen, which is prescribed to lower sexual arousal and drive in adult men. The experts warn that reliance should not be placed on the moderating influences of such a drug, without other measures.
[34] Mr Ross has advised me this morning that you treat preventive detention as a life sentence, but he is correct that all the analysis that has been made available does not condemn you as a hopeless case. There are prospects for you to be cured and I urge you to pursue them. I also urge those responsible for monitoring you to make an exception and recognise the significant value in admitting you to the Kiamarama programme before you would usually qualify for it by counting back from the date of your first possible release.
Absence, or failure, of efforts to address the cause of offending?
[35] In the broadest sense, it might be argued that your voluntary confession of your offending is a form of effort by you to address your offending. I infer from the circumstances that, having been convicted for the 2012-2013 offending, you have acknowledged the need for help and have described the pattern of your historic offending in an attempt to “get a clean slate”.
[36] However, the report writers consider that you are not equipped to identify the causes of why you offend in this way. Therefore you are not able to exert self-control or undertake other individual initiatives to reduce the risk of re-offending when the opportunity arises. In that regard, to your credit you acknowledge that you need treatment and that you would not be safe from the risk of re-offending if you were released from prison at this time.
A lengthy determinate sentence is preferable if it adequately protects society
[37] In comparing the level of protection for society that would be available from a determinate sentence, I start with the proposed finite sentence of six years and nine
months where you might qualify for release, at the earliest, after an MPI of four years. In addition, assuming that you might be released sometime between four years and a full term of six years and nine months, there is the prospect of an extended supervision order (ESO), which would see you closely monitored after release as a means of reducing the risk of re-offending. The report writers suggest that if you are given a finite sentence, you would be wait-listed for an application for an ESO in due course.
[38] In some cases, it has been found that a finite term, together with the availability of an ESO, is sufficient, depending on the nature of the offending and the defendant’s willingness to participate in treatment.9
[39] Given the chronic nature of your offending, its seriousness and the lack of grounds for confidence that your propensity to re-offend could be managed after a finite term of imprisonment, I am satisfied that a lengthy determinate sentence, even with the prospective addition of an ESO, is not adequate to protect society.
Conclusions
[40] Having undertaken all the steps in this analysis, I reach the point where I am satisfied that preventive detention is the appropriate sentence. You should appreciate that it is not a sentence imposed lightly, but the relevant factors in your case sadly satisfy me that it is justified.
[41] When imposing such a sentence, I am also obliged to indicate the minimum period of imprisonment that would otherwise attach to it, if the sentence was a finite one. The Crown has suggested five years, which is slightly higher than the MPI that would apply in the proposed finite length of prison sentence I have considered, but five years is the minimum that can be imposed on a sentence of preventive detention. Mr Ross makes the point that because of the timing following on from the sentence you are already serving, it is in fact extended by, in practice, two and a half years.
But that is the sentence I will impose.
9 R v McDonald [2009] NZCA 248 at [38].
[42] Mr Miles, please stand. I now sentence you on all the convictions for which you have not already been sentenced to a term of preventive detention with a minimum period of imprisonment of five years.
Dobson J
Solicitors:
Crown Solicitor, Wanganui
Stephen Ross and Raukawa Simon, Wanganui
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