R v Mitchell
[2021] NZHC 2175
•17 August 2021
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2019-009-4452
[2021] NZHC 2175
THE QUEEN v
HARRY JAMES MITCHELL
Hearing: 17 August 2021 Appearances:
H V Bennett for Crown
J J McCall for Defendant
Judgment:
17 August 2021
SENTENCING REMARKS OF MANDER J
[1] Mr Mitchell, you are for sentence this morning on five charges of making an objectionable publication,1 two charges of distributing an objectionable publication,2 a representative charge of possession of an objectionable publication,3 two charges of burglary,4 and five charges of committing an indecent act on a child under the age of 12 years.5 You were found guilty of those charges and your sentencing was transferred to this Court for the purpose of considering the imposition of a sentence of preventive detention.6
1 Films, Videos and Publications Classification Act 1993, ss 123(1)(a) and 124(2)(a): maximum penalty of 14 years’ imprisonment.
2 Films, Videos and Publications Classification Act 1993, ss 123(1)(d) and 124(2)(a): maximum penalty of 14 years’ imprisonment.
3 Films, Videos and Publications Classification Act 1993, s 131A(1): maximum penalty of 10 years’ imprisonment or a fine of $50,000.
4 Crimes Act 1961, s 231(1)(a): maximum penalty of 10 years’ imprisonment.
5 Crimes Act 1961, s 132(3): maximum penalty of 10 years’ imprisonment.
6 Sentencing Act 2002, s 90.
R v MITCHELL [2021] NZHC 2175 [17 August 2021]
The offending
[2]Your offending involved two young victims.
The first victim
[3] The first two charges of making an objectionable publication concern offending that occurred between October 2014 and February 2015 at Kaiapoi. The mother of a six-year-old boy advertised for a boarder to occupy a caravan situated on her property. You responded and began living in the caravan. You were also permitted access to the house to use the bathroom and kitchen. During this period you befriended the family and played with the young boy.
[4] There was evidence at your trial that while playing with the child on the trampoline you touched him, as it was referred to in the evidence, “in the middle of his bottom cheeks”, and on occasions your hand would slip onto his penis. On one occasion after you had moved into the house, because of an issue relating to the use of the caravan, you deliberately exposed your penis to the young boy when he came into the room you were occupying at the time.
Making an objectionable publication (x 2)
[5] Two of the charges of making an objectionable publication relate to videos that you covertly took of the child while he was taking a bath. You entered the house, approached the bathroom and filmed through a small gap in the doorway. The video zoomed in on the victim’s genital area. There was a third video made when the child was in the bath but fully clothed. You filmed the child while naked from the waist down, exposing your penis to him. This video, however, was not classified as objectionable and there is no charge in relation to that incident.
Burglary (x 2), indecent act with a child under 12 (x 4), making an objectionable publication (x 1)
[6] You made two other videos when you entered the house at night while the family was asleep. On the first occasion this occurred the video captures you exposing your penis in the doorway to the young boy’s bedroom, and then standing beside him
while he is sleeping, you begin to masturbate yourself. You are recorded as saying, “That was a dry run. Next time I’m going to rape you in the bum and mouth”. This video was classified as objectionable.
[7] On a second occasion, you entered the house and went into the child’s bedroom where you positioned yourself with your buttocks over the child’s head and said, “Good night”. When the young boy stirs, you exit the room and the house. This video, however, was not classified as objectionable.
[8] In relation to both entries into the house, you were convicted of burglary on the basis that your intention was to commit an imprisonable offence, namely, to commit indecent acts on the victim and/or to make an objectionable publication.
[9] On a further occasion, you laid down next to the sleeping boy and took three photographs of your body, positioned on an angle where your penis and testicles were close to the boy’s head before then posing with your buttocks over the child’s head. These photographs were not classified as objectionable. However, they are the basis of three of your convictions of committing indecent acts on a child under the age of 12.
[10] Despite this material being discovered on your computer following the execution of a search warrant in February 2019, you deny any knowledge of either the recordings or the images and continue to do so. You claim they were on a cell phone that was given to you by the boy’s family.
The second victim
[11] Your offending against your second victim was committed between February and March 2015. You befriended another family who were staying at a campsite where you were also living. Your victim was a boy aged around three years at the time.
[12] On a number of occasions you played with the victim and his sister in your car. After one of those occasions the young boy told his mother that your “whizzer is as big as a cucumber”. After this disclosure you were asked to leave the campsite by the owners.
Indecent act on a child under 12 (x 1), making an objectionable publication (x 2)
[13] In April 2019, the boy’s mother confirmed to police that a photograph they showed her of a boy wearing a red pyjama top with the words “Fire Department” on it was her son. The pyjamas were a favourite of his which he wore when the family were living at the campsite.
[14] The young boy can be seen wearing the red top in two videos that you made of the child while committing indecent acts on him in the vehicle, when you exposed your erect penis to him. In the first video you are seen tickling the boy and encouraging him to touch your penis. The child can be seen swatting your penis with his hands.
[15] In the second video the child is again wearing the red top but is naked from the waist down. You are encouraging the child to touch your penis. The child holds your penis in both hands and moves them up and down in a masturbating motion. You are recorded on the video as saying, “What do you do with a cucumber?”, to which the child replies, “Eat it”. You then say, “Why don’t you eat it?”
Distributing an objectionable publication (x 2)
[16] The authorities have identified activity on the internet that relates to these two videos. On 17 October 2015, you uploaded these videos onto a forum “BoiVIDS”. On one of the occasions that you uploaded the videos to that site, you commented, “Here is the first lot of pics of my four [year old] sex toy (more cumming real soon).” A subsequent search warrant executed on your computer confirmed you were the person who had uploaded these videos despite your assertions to the contrary which you continue to maintain.
Possession of objectionable publications (representative charge)
[17] Multiple child pornography images depicting children posing with no clothes, sexual activity between children and between adults and children, sadism and bestiality were located on your computer. The Crown estimates there were some 40,000 objectionable images.
Victim impact statements
[18] The significant impact of your offending on your victims and their families is evident from the victim impact statements that I have received. The second victim’s parents speak of the trauma and grief they have experienced as a result of your abuse of their child. They say they are no longer as trusting of people and are now more cautious about whom they allow their children to spend time with. They recount how your offending has changed their son’s personality and observed that you betrayed the kindness that they extended to you.
[19] The effects of your offending on the first little boy have been considerable. He suffers from severe anxiety, depression and stress that has affected his schooling. He has trouble sleeping and will need counselling and support to deal with having been a victim of sexual abuse. His mother has expressed feelings of shame and guilt at not being able to protect her son. The effects of your offending on these children and their families has been profound and will likely be long-lasting.
Purposes and principles of sentencing
[20] In sentencing you this morning, I am required to bear in mind the purposes and principles of sentencing.7 I need to hold you accountable for the harm you have caused to your victims and to the community, and to denounce your conduct. There is also a need to deter both you and others from committing similar offences. While the sentence I impose must reflect the gravity and seriousness of your offending, I must also have regard to your personal circumstances and the prospects of your rehabilitation. Inevitably, however, having regard to your previous sexual offending, the protection of the community must be an obvious focus.
Prior offending
[21]You have a number of relevant previous convictions.
[22] In 1990, you were convicted of indecent assault on a boy under 12 years. That offending has parallels with your current offending. The mother of your victim placed
7 Sentencing Act 2002, ss 7 and 8.
an advertisement in the newspaper asking for a babysitter. You replied and arrangements were made for you to babysit the child and his twin brother over a weekend. After the victim had gone to bed you went into the bedroom, stood by his bed, put your hand under the blankets and touched his penis. The victim told you to leave and the next morning he disclosed to his mother what had occurred. You pleaded guilty to that charge.
[23] In 1999, you were convicted of two charges of committing an indecent act with intent to insult or offend. You used a sausage as a prop to simulate masturbation to a boy and his sister. Three days later you exposed your buttocks and anus to two young boys, one of whom was the same boy as the previous incident. You pleaded guilty to those charges.
[24] In 2003, you were convicted of 10 charges of possessing objectionable publications as a result of the police seizing your computer and viewing several objectionable images of children either in sexual poses or engaged in sexual acts. In addition to the computer hard drive being seized, numerous computer discs and videotapes were also examined. A subsequent review of that material revealed sexual images of children, including children involved in sexual acts with other children and with adults, violent rape scenes and other objectionable images. In total, 262 files depicting child sexual exploitation were identified.
[25] Despite pleading guilty to these charges, in recent interviews you have undertaken with a clinical psychologist, Mr Carrell, you denied this conduct. Although, your counsel this morning advises me that he has received instructions from you that you now accept this offending occurred.
Personal circumstances
[26] In addition to the pre-sentence report, I have received reports prepared by the two clinical psychologists, Mr Carrell, who I have just mentioned, and Dr Tucker. Their reports provide me with details of your personal background.
[27] Mr Mitchell, you are a 49-year-old single man with no dependents. You have 32 previous convictions, of which several are of a sexual nature, to which I have referred. You also have convictions for dishonesty and some violence.
[28] It is apparent that you had an unstable upbringing in which you experienced and witnessed physical and emotional abuse. This included an extended period of sexual abuse that you report was perpetrated by [an older relation] when you were aged between five and 12 years. Your description of the dynamics of your family indicate a broad pattern of intergenerational sexual abuse. Dr Tucker suggests that your experience of sexual abuse may have compromised your ability to recognise normal sexual boundaries and normalised sexually deviant behaviour, including sexual abuse of children.
[29] The information available to me discloses that the ability of your mother to provide stable care was disrupted due to her significant mental health difficulties which resulted in you being periodically placed in foster care. You struggled socially and academically at school and report being subject to bullying. You did not obtain any formal qualifications and were expelled. By the age of 20 you were using alcohol and cannabis daily as a coping mechanism, although this apparently ceased from about the age of 23. You described a marginalised and transient lifestyle to the report writers, during which you maintained few friendships and had few community ties. You have been predominantly unemployed and sustained yourself using the unemployment benefit.
[30] You report a long term history of major depression which led to admission to a psychiatric facility for several months in your early 20s. Dr Tucker notes that you have attempted suicide on multiple occasions when experiencing acute distress. Mr Carrell opines that your early life experience of sexual abuse has resulted in you suffering from post-traumatic stress disorder and lasting emotional difficulties. You are reported to remain at risk of suicide.
Finite sentence
[31] A sentence of preventive detention can only be imposed if I am satisfied you are likely to commit another qualifying sexual offence if released at the expiry date of
the sentence I would otherwise impose. It is therefore necessary for me to consider the appropriate finite sentence for your offending. As your counsel, Mr McCall, has identified, the key issue for me is whether a finite sentence coupled with an Extended Supervision Order (ESO) will meet the principles and purposes of the Sentencing Act or, alternatively, whether preventive detention should be imposed.
[32] In undertaking that task, I intend to treat the charges of making an objectionable publication involving the second victim, where you induced the child to handle your penis, as the lead offence. That charge carries a maximum sentence of 14 years’ imprisonment.
Starting point
[33] The Court of Appeal has endorsed the approach taken in the United Kingdom to sentencing for offences involving indecent photographs of children as a “useful guide” to sentencing in this country when dealing with objectionable publications relating to child sexual abuse material (the UK Guidelines).8 The UK Guidelines were updated and reissued in 2014.9 This Court has noted that sentencing for this type of offending has become less settled following changes to those UK Guidelines and increases in the maximum sentencing levels introduced in this country in 2015.10 Nonetheless, the Court of Appeal has recently held that, in the absence of a guideline judgment, the UK Guidelines still afford assistance, if not in terms of actual sentencing levels, at least insofar as they describe the kinds and relative seriousness of objectionable content.11 In relation to sentencing levels, the UK Guidelines need to be applied flexibly, and only to the extent they are considered helpful in any given case.12
8 R v Zhu [2007] NZCA 470 at [15]; and R v Clode [2008] NZCA 421, [2009] 1 NZLR 312 at [52].
9 Sentencing Council for England and Wales Sexual Offences Definitive Guidelines (1 April 2014) at 75–79.
10 Pattison v Police [2018] NZHC 2163 at [31]. In May 2015, Parliament increased the maximum sentence for distribution of objectionable publications from 10 to 14 years, and the maximum penalty for possession of objectionable publications from 5 years to 10 years.
11 Wittig v R [2021] NZCA 100 at [34].
12 Pattison v Police, above n 10, at [24]; citing Stewart v Department of Internal Affairs [2014] NZHC 2209 at [17].
[34] The UK Guidelines delineate three categories of indecent images, and describe the offences of possession, distribution and production, with the latter being the most serious form of offending. Category B of the UK Guidelines concerns non-penetrative sexual activity and provides for a suggested range of sentence of one to four years’ imprisonment for the offence of producing such material.
[35] The Crown submits that the offending against the second victim falls at the highest end of this category, involving, as it did, non-penetrative sexual activity in which you filmed your victim holding your penis in both hands and moving them in a masturbating-type motion. Regard also has to be taken of the very young age of your victim and the highly covert nature of the offending. The Crown submitted that an initial starting point in the vicinity of four to four and a half years’ imprisonment should be taken. Whereas your counsel submitted a starting point of between three and four years on this lead charge of making an objectionable publication would be appropriate.
[36] The aggravating features of this offending against your young victim are readily identifiable:
(a)The victim’s age made him particularly vulnerable, being only three at the time of the offending. The only reason the offending came to light was because you had uploaded videos of him to child pornography websites. He himself is unable to recall the extent of your offending on him because he was so young.
(b)There is the significant age disparity. You were in your 40s and your victim was but an infant.
(c)There is the premeditated nature of the offending. You befriended the child’s family while they were staying at a campsite. You played with the children, which of itself was a form of grooming, and you manipulated the child’s family in order to gain access to the child. Your offending represents a significant breach of trust.
(d)Although it is acknowledged that your second victim was too young to remember the offending, such offending often has a long-lasting impact on victims, as is apparent from the detrimental effects on your first victim.13 The harm caused is of course magnified as a result of your distribution of the material on the darknet. Demand for such material fuels both its production and supply, and offences involving the possession and distribution of such material victimises and exploits children.14
[37] Having considered the relatively small number of cases available in relation to the production of objectionable material that post-dates the legislative amendments increasing the maximum sentences, I consider an appropriate starting point on the lead charge of making an objectionable publication in relation to your second victim would be four and a half years’ imprisonment.15
[38] In relation to the charges of making an objectionable publication that depicts your first victim, I consider they fall within the higher end of category C of the UK Guidelines, being indecent images that do not involve the child engaging in sexual activity. This offending involved you entering your victim’s room at night, standing by him while he was sleeping, and masturbating yourself. However, similar aggravating features are present. There is the vulnerability of the child, who was only six years old at the time and asleep during the offending; the age disparity; and the premeditated nature of your offending.
[39] You took steps to groom the child, giving him presents and engaging him in play, during which you took the opportunity to touch him both on the buttocks and the penis; and on occasions exposed your penis to him. You befriended the child’s family and abused their trust, entering the house at night to perform indecent acts when you were only permitted to go into the house to use the bathroom facilities or the kitchen. There is the frequency of the offending, occurring, as it did, on at least five occasions, and the significant resulting harm to the child.
13 R v Zhu, above n 8, at [19].
14 Webb v R [2016] NZHC 2966 at [54].
15 See Tilyard v Police [2016] NZHC 1377; and Walsh v R [2016] NZHC 2747.
[40] I consider an uplift of one and a half years’ imprisonment is appropriate for the charges relating to the first victim of making objectionable publications.
[41] An uplift is also required to be imposed to reflect the balance of the offending against your two victims. This includes the five charges of committing an indecent act with a child under 12. In particular, there is the taking of photographs of the first victim while positioned so that your genitals and buttocks were in close proximity to the child’s head, the two charges of burglary, and the two charges of distributing an objectionable publication in relation to the videos taken of your second victim. Care is required because of the overlap of some of this offending with the charges of making an objectionable publication, but those offences require to be marked by a substantive uplift.
[42] As I have noted, the distribution of such exploitative material magnifies the harm and contributes to the circulation of such objectionable material online. The burglary charges reflect the fact that the offending on your first victim took place at night while the child was asleep, when you entered his home where he was entitled to be safe. Having regard to the principle of totality, I consider an uplift of one and a half years’ imprisonment is also appropriate.
[43] In relation to the representative charge of possessing objectionable publications, your counsel, Mr McCall, initially challenged the Crown’s submission that you were found in possession of “over 40,000” objectionable images. The trial Judge’s decision describes the charge as relating to four objectionable documents. However, the charge was a representative one. As has now been acknowledged by your counsel, because of the volume of the material you possessed, it is apparent from the evidence at trial that you did have thousands of such objectionable documents on your computer, of which the four images referred to in the charge were but a very small sample. I have described those images earlier in my sentencing remarks. I must be cognisant of the age and vulnerability of the children depicted. Again, after taking into account the principle of totality, I consider the charge should attract a further uplift of one and a half years’ imprisonment.
[44] In total therefore, I arrive at a starting point of a finite sentence of nine years’ imprisonment.
Aggravating features personal to the offender
[45] It is acknowledged by your counsel that an uplift is necessary to recognise that these charges represent a continuation of previous offending. I have already reviewed that prior offending. As Dr Tucker notes in her report, your previous offending demonstrates your sexual deviance and exploitation of children which is a feature of the behaviour that you have engaged in throughout your adult life. It is apparent you have a longstanding and unwavering sexual interest in pre-pubescent boys. Your previous offending also highlights the covert nature of your conduct, which is perhaps unsurprising, but also your tendency to ingratiate yourself with trusting families in order to secure access to vulnerable children.
[46] I am satisfied that an uplift of one year is required in recognition of your previous convictions for like offending.
Personal mitigating factors
[47] The reports available to me detail your difficult upbringing, during which you were subject to an extended period of sexual abuse perpetrated by an older relation and other physical and emotional abuse from within your family. Dr Tucker has suggested your own experience of sexual abuse may have compromised your ability to recognise normal sexual boundaries, and Mr Carrell emphasised that you were exposed to ongoing trauma during a formative development period that left you with significant emotional trauma. Having regard to that background, I consider there is some causative nexus between your abusive upbringing and your longstanding sexual deviance that needs to be recognised. Accordingly, I apply a discount of one year (or approximately 10 per cent) in recognition of your difficult upbringing and personal background.
Conclusion as to finite sentence
[48] In total, therefore, the finite sentence of imprisonment that you would be sentenced to is one of nine years.
Minimum period of imprisonment
[49] Because such a sentence would be more than two years’ imprisonment, I may consider the imposition of a minimum period of imprisonment.16 The court may impose a minimum period of imprisonment where it is satisfied that the ordinary minimum is insufficient either to hold you accountable for the harm you have done, to denounce your conduct, deter you or others, or to protect the community.17 Your eligibility for parole would arise after three years’ imprisonment.
[50] Your offending involves recidivist sexual abuse of children which does not appear to have diminished notwithstanding various opportunities for treatment and rehabilitation. A minimum period of imprisonment therefore needs to be carefully considered for the purpose of protecting the community. The evidence of the heath assessors is clear that your sexual deviance is longstanding and appears to be stable across time. You do not present as being motivated to address these issues and it follows therefore that you present a real risk to the community. On the other hand, it is important that you engage in treatment and have an incentive to do so. I consider a minimum period of imprisonment of at least half the finite period of imprisonment, possibly more, would have to be imposed if a finite sentence is imposed. Thereafter, any potential release into the community would be a question for the Parole Board based upon the risk you present at that future time.
Preventive detention
[51] Having determined the appropriate finite sentence, I must now turn to consider the issue of preventive detention. The purpose of preventive detention is not
16 Sentencing Act 2002, s 86(1).
17 Sentencing Act 2002, s 86(2).
punitive.18 Rather, it is a sentence designed to “protect the community from those who pose a significant and ongoing risk to the safety of its members”.19
[52] Before I may consider you eligible for a sentence of preventive detention, I must be satisfied that you are likely to commit another qualifying sexual offence if released at the expiry date of a finite sentence.20 If the statutory preconditions are fulfilled, a sentencing court may exercise its discretion to impose a sentence of preventive detention.21
[53] I am required to exercise judgment about the risk you will present in the future, after imprisonment and such treatment as the prison system may offer you and with which you are willing to engage. I must be satisfied that a finite prison sentence would not be sufficient to protect the public. As I have noted, I have received reports from two appropriate health assessors regarding the likelihood of you committing a further qualifying sexual offence to assist me in making that decision.
[54] The Sentencing Act sets out a number of matters that I must consider when deciding whether or not to impose preventive detention.22 In assessing those factors, I have taken into account the submissions of the Crown and your counsel, and have been assisted, as I say, by the reports prepared by the health assessors regarding the likelihood of you committing a further qualifying offence.
Pattern of serious offending
[55] I must first consider any pattern of serious offending disclosed by your history. This requires consideration of the frequency and duration of your current offending, the period of time that has elapsed since your last offending, and its overall frequency.
[56] Your last conviction for serious offending, being 10 charges of possession of objectionable publications, was in June 2003, with the offending having occurred in August the previous year. Three years earlier, you were convicted on two charges of
18 R v C [2003] 1 NZLR 30 (CA) at [6]; J v R [2019] NZCA 581 at [51].
19 Sentencing Act 2002, s 87(1).
20 Sentencing Act 2002, s 87(2).
21 M (CA236/15) v R [2016] NZCA 77 at [28].
22 Sentencing Act 2002, s 87(4).
committing an indecent act with intent to insult or offend, and some nine years prior to that on a charge of indecent assault on a boy under 12 years.
[57] Mr McCall has emphasised to me that this offending is of some vintage and that in relation to none of the charges did you receive a term of imprisonment. Nor, he stressed, were there any rehabilitative aspects of your prior sentences which addressed your sexual deviancy.
[58] Ms Bennett, on behalf of the Crown, however, submitted that while your past offending has been limited to indecent acts and has not escalated to full penetrative sexual conduct, it does represent a pattern of sexual offending against children that spans your adult life and must be regarded as serious, being offending against children. Ms Bennett expressed concern about the covert nature of your offending, and she noted that you have previously disclosed other offending against children when babysitting in the 1990s that did not come to the attention of the authorities, although you now deny any such admissions.
[59] Dr Tucker has noted that your pattern of sexual offending has spanned your entire adult life and she considers that your history suggests a longstanding sexual interest in pre-pubescent boys. Mr Carrell opined that your sexual preference for pre- pubescent boys has been present since adolescence and that your sexual offending across your adult life indicates stability in your deviant sexual preferences.
[60] I consider that, while the offending that has resulted in your previous convictions has to be recognised as relatively infrequent given the span of time over which they have been incurred, there is a consistent pattern of you acting on your sexual attraction towards children. It is offending that involves a degree of planning in terms of the way you gain access to children, by befriending families and acquiring their trust. Your grooming behaviours indicate a significant predatory element. Your connection with others with similar deviant preferences through the internet and your production and dissemination of child pornography with such groups demonstrates an increasing versatility and intensity in your criminal sexual behaviour.
The seriousness of the harm to the community caused by the offending
[61] The seriousness of the harm caused to your victims by your offending is indisputable. It is well-recognised that such offending on children places their emotional and psychological wellbeing in jeopardy and is very likely to be ongoing. The harm caused can potentially be very grave, more so because of exposure on the internet. The covert nature of your offending and the very young age of your victims means that this offending is difficult to detect and may rarely come to light. Meanwhile, the damage caused to the children goes unaddressed.
Information indicating a tendency to commit serious offences in the future
[62] The available information consistently indicates that you represent a future risk of sexual recidivism. You score in the high-risk range, calculated by empirically informed risk tools.
[63] Both of the heath assessors’ reports concluded that you fall within the high-risk category because of your pattern of sexual deviance. You continue to deny the offending and refuse to acknowledge what you have done. That does not give cause for optimism in terms of your ability to address your offending. However, your counsel has sought to emphasise that you did accept your prior offending when you pleaded guilty to it and submitted that you are prepared to consider rehabilitative components of any sentence, which he described as a step forward for you.
[64] On the Static-99R Risk Scale Dr Tucker assessed you as being in the category of “well above average risk” of being charged or convicted of another sexual offence
— the highest risk category. On the “Violence Risk Scale: Sexual Offence version” (VRS:SO), you were assessed as being in the “well above average risk” category. Dr Tucker concluded that you had an entrenched pattern of sexual deviance and opined that you wold require extensive correctional interventions over years to reduce your high risk of reoffending.
[65] Mr Carrell assessed you as being in the high-risk category under the Automated Sexual Recidivism Scale. On the VRS:SO scale, you were assessed by him as also being in the high-risk category for reoffending because of your sexually deviant
lifestyle, sexual compulsivity, offence planning processes, poor insight and emotional control, lack of community support, and poor compliance with community supervision. Mr Carrell identified your entrenched personality features, including your ability to manipulate others, repeated pattern of lying and cognitive distortions that blame others, as all being risk factors associated with an ongoing risk of offending. Mr Carrell also noted your deviant sexual interests have remained stable over a lengthy period of time and show no signs of reducing with age.
The absence, or failure, of efforts by the offender to address the cause or causes of the offending
[66] Your counsel has had to acknowledge that you have barely, if at all, sought to address the underlying issues of your offending. However, he sought to submit that your views on rehabilitation and the need to address the root causes of your offending have changed. Having regard to your continued denials and the stance you continue to take in respect of your current offending, that is not at all evident to me.
[67] Dr Tucker records that you have denied responsibility for any of the offences for which you have been convicted. He considers that your denials and broader pattern of sexually deviant behaviour could be the result of a longstanding pattern of externalising responsibility of adverse life experiences and/or your concern about the outcome of this sentencing process. The pre-sentence report writer observed that you continue to deny the offending and that such a denial would significantly reduce the efficacy of any rehabilitative programme for which you may be eligible.
[68] According to Community Corrections records, you engaged with a community-based treatment programme between September 2001 and May 2002 but your attendance was reported as inconsistent and you failed to disclose relevant risk- related information. Dr Tucker opined that your level of engagement was likely limited by a lack of motivation and therefore your risk of sexual reoffending was not adequately addressed at that time. You engaged in one treatment session in November 2015. At that time, you were reported as presenting as highly motivated to desist from sexual offending and developed a brief safety plan to assist you to continue to manage the risk of sexual reoffending. However, it is notable that you did not disclose the offences which had occurred only a short period before. This non-disclosure tends to
demonstrate an ability to manipulate others during the process of psychological assessment and treatment.
[69] Dr Tucker concluded that, while prior sanctions and supervisory oversight have resulted in temporary periods of desistance from sexual offending, your poor engagement in treatment has meant the risk factors remain unaddressed. He found that in order to reduce the risk you present you would need to meaningfully engage in a high intensity treatment programme over an extended period of time in a structured and secure environment with a high level of reintegration support. While Dr Tucker assessed you as intellectually capable of engaging in offence-related treatment, you present with a lack of insight and motivation. She observed that a significant change would be required in order for you to engage meaningfully in future psychological treatment.
[70] Mr Carrell considered that you displayed a dismissive attitude towards the courts and the police, that you viewed yourself as the victim and continued to strongly deny the offending. You placed blame on the victims’ families and the police for the circumstances you find yourself in. When asked if you would be willing to address your sexual offending by treatment during the course of your sentence, you replied that your participation would be for “educational purposes only” and that you would remain unwilling to accept or acknowledge guilt for your offending. Mr Carrell opined that, while you would benefit from engaging in a specialist prison-based treatment for child sex offenders, your ongoing denial of your historical and current sexual offending represents a barrier to such treatment being effective.
[71] From the information available to me, it is apparent that you have failed to successfully engage in treatment programmes in the past to address your offending behaviour. As I have noted, you attended a community-based treatment programme which you engaged with between September 2001 and May 2002, and underwent a brief period of assessment and treatment in 2015 which focused on the risk of sexual reoffending relating to your prior sexual convictions. At that time, you were completing a 12-month sentence of intensive supervision after being convicted of six dishonesty offences. You engaged in assessment interviews and your risk of sexual offending was assessed as being moderate to high. It was recommended that you
undergo a brief period of treatment with a Departmental Psychologist to develop a safety plan and to resume counselling in the community as required.
[72] You subsequently engaged in one treatment session in November 2015. As I have mentioned, you developed a brief safety plan and were encouraged to form more friendships and interests and re-engage with counselling. You did not schedule any further sessions because you reported that you were actively managing your risk of sexual reoffending and were in the process of moving to live in a new location. It is notable that this was not long after you had offended against the two victims and it was during the period you were storing objectionable images on your computer hard drive. As Ms Bennett submitted to me, it appears that you have now regressed in accepting and acknowledging any of your past sexual offending.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[73] There is a statutory principle of which I must be cognisant, that a lengthy determinate sentence is to be recognised as preferable if it provides adequate protection for society. In judging whether I can give effect to that preference, I am required to balance the risk of your reoffending and the need to protect the community. A sentence of preventive detention would ensure that you would not be released until there is a degree of confidence that the safety of the community would not be placed at risk. It would also ensure that upon release, should you revert to high risk behaviour, you would be recalled.
Decision
[74] Preventive detention is not a sentence of last resort but its imposition must be carefully considered.23 The Crown submits that the imposition of a finite sentence will not alleviate the future risk that you pose of committing serious sexual offences and that a term of imprisonment would be insufficient to meet the risk you pose to the community. On the other hand, Mr McCall submitted that, prior to being remanded in custody on the current charges, you have never received a term of imprisonment. He submitted that in the absence of the imposition of a previous term of imprisonment
23 R v C, above n 16, at [6].
with a rehabilitative component as part of that sentence designed to address your sexual offending against young boys, a finite sentence should be preferred.
[75] Mr Mitchell, I am satisfied that you are eligible to be sentenced to preventive detention. I consider there is a high risk of you reoffending and that absent appropriate intensive treatment being effective you would be likely to commit another qualifying sexual offence at the expiry of a finite sentence. The appropriateness, however, of imposing a sentence of preventive detention turns largely on whether I consider it is the only way to realistically protect the community from the risk you pose, or whether the risk can adequately be met by the imposition of a finite sentence, particularly when coupled with an ESO — that being an Extended Supervision Order.
[76] The sentence that would otherwise be appropriate in your case would be one of nine years’ imprisonment. That is a lengthy sentence. Preventive detention is an indeterminate sentence that would require a minimum period of imprisonment of at least five years.24 As I have already noted, I consider that a minimum period of imprisonment that would need to be imposed on any finite sentence would be one of at least four and a half years’ imprisonment. There is an obvious difference between a finite and indefinite sentence, which underlines the need for me to be sure before I impose a sentence of preventive detention in your case. I must be satisfied that the finite sentence cannot adequately address the issues to which your offending gives rise.
[77] There are some strong factors in your case which would favour the imposition of preventive detention. First, there is the history of your offending which, while sporadic and some of it of some vintage, as the health assessors have observed, it is persistent. The risk that you pose has endured over the course of your adult life. While the offending is relatively less serious than other forms of sexual offending against children that involve penetrative activity, your grooming behaviours and manipulation, which form part of your modus operandi, means your offending is more difficult to detect.
24 Sentencing Act 2002, s 89(1).
[78] Your past involvement in rehabilitative initiatives indicate variable results. However, it is notable that you have not engaged in the type of intensive rehabilitative programmes to which the health assessors have referred in their reports, such as the Kia Marama programme, nor in any other type of sustained and intensive intervention to address your offending in the long term. Dr Tucker notes that in addition to a high intensity treatment programme and an extended period of time in a structured and secure environment to consolidate any skills developed in treatment, you would also likely require a high level of reintegration support, again over an extended period. Should you engage actively in such processes and demonstrate change, Dr Tucker opines that your risk of sexual reoffending may be successfully managed or mitigated. There remains therefore some possibility that participation in these types of specialised programmes to gain the necessary knowledge and strategies to prevent your offending, together with long term supervision, may reduce the risk you present to the community.
[79] However, as you present before me at sentencing and as the health assessors note, there is a considerable barrier to any meaningful prospect of you making progress to address the risk you present to the community. You continue to deny the offending. Moreover, you refuse to acknowledge your demonstrable sexual preference for pre- pubescent boys and you have an unwillingness to address the other features personal to you that place you at high risk of reoffending. There is no indication that you are motivated to address the factors that sit behind your sexual offending. Your past involvement in assessment and treatment initiatives appear to have been superficial, although you at least at the time made some attempt to participate. It appears in the wake of this offending that you have in fact regressed in your acceptance and acknowledgment of your conduct and the issues that bear on your offending to the point where you will take no responsibility.
[80] Notwithstanding these considerable concerns and not without some reservations, having given the matter anxious consideration, I have decided to be guided by the statutory principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. You will be subject to a finite sentence of nine years’ imprisonment. That, as I have said, is a very long sentence. You will not be paroled unless the Parole Board considers that you can be safely released back
into the community. That will no doubt only be contemplated if you successfully engage in the type of intensive rehabilitative steps that are necessary to address your sexual offending against young boys and you can satisfy the Parole Board that you are genuinely motivated to avoid contact with young children, and are prepared to submit to the type of oversight necessary to keep the community safe. Presently, with your continued denials, you are a very long way from that. As a result, I intend to impose a non-parole period of six years’ imprisonment. That is one year more than the minimum period of imprisonment that could otherwise have been imposed had I sentenced you to preventive detention.
[81] One of the advantages of sentencing an offender to preventive detention is to provide that person with an incentive to address the causes of their offending in order to enable them to become eligible for release. I consider a similar result is achieved with the imposition of a nine-year finite sentence with a six-year minimum period of imprisonment, in the knowledge that should you fail to successfully engage in the necessary rehabilitative programmes to address the causes of your offending, you are unlikely to be released until the completion of the whole term of that sentence. I am satisfied that because of the length of the term of the finite sentence, coupled with the availability of an Extended Supervision Order at its completion, the community is adequately protected. The length of the finite sentence coupled with such an order tips the balance against preventive detention and renders it sufficient in the circumstances of this case notwithstanding your present poor rehabilitative outlook.
Result
[82]Mr Mitchell, you can remain seated as I impose sentence.
[83] On each of the charges of making an objectionable publication you are sentenced to nine years’ imprisonment. On those charges there will be an order that you serve a minimum period of imprisonment of six years.
[84] On each of the charges of distributing an objectionable publication you are sentenced to concurrent terms of five years’ imprisonment.
[85] On the representative charge of possession of an objectionable publication you are sentenced to a concurrent term of three years’ imprisonment.
[86] On the charges of committing an indecent act with a child under 12 you are sentenced on each charge to concurrent terms of four years’ imprisonment.
[87] On the two charges of burglary you are sentenced on each to a sentence of three years’ imprisonment.
[88]As I have said, all sentences are to be served concurrently.
Strike warning
[89] Because of your conviction on charges of committing an indecent act on a child it is necessary that you be warned of the consequences of being convicted of any further serious violent offence. You will also be provided with a written notice that contains a list of these serious violent offences.
[90] The warning is this. If you are convicted of any one or more serious violent offences other than murder committed after this warning and if the Judge imposes a sentence of imprisonment, then you will serve the sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment.
Child Sex Offender Register
[91] Because I am imposing a sentence of imprisonment on you today for a qualifying offence under the Child Protection (Child Sex Offender Government Agency Registration) Act, you are a registrable offender under this legislation. This means that your name and information relevant to you and your offending will be placed on the Child Sex Offender Register. It also means you have initial and ongoing reporting obligations under the Act, although they of course will only be triggered at the end of your sentence. It is an offence to fail to comply with your reporting
obligations without reasonable excuse, or to provide false or misleading information.25 It is also an offence to apply to register a change of your name without first having obtained the written approval of the Commissioner of Police.26
[92] In your case, your reporting obligations begin when you cease to be in custody. As the conviction involves a Class 2 offence under the Act, you will remain on the register and will have to comply with reporting obligations for a period of 15 years.27
[93] You will be given written notice of your reporting obligations and the penalties for failing to comply with those obligations.
Order for destruction of electronic equipment
[94] The Crown has also sought and there will be an order for the destruction of all electronic equipment capable of storing images or capable of accessing the internet located at your address, including computer hard drives, smartphones and a PlayStation.
[95]You may stand down.
Addendum
[96] I note the specific request that has been made by Mr Mitchell that the order for the destruction of electronic equipment will not take effect until the expiry of the appeal period.
Solicitors:
Crown Solicitor, Timaru Papprills, Christchurch
25 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, ss 39 and 40.
26 Section 53.
27 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 35(1)(b).
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