R v Mitchell
[2018] NZHC 1112
•18 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-2810
CRI-2017-004-2621 [2018] NZHC 1112
THE QUEEN v
COLIN JACK MITCHELL
Hearing: 18 May 2018 Counsel:
KA Lummis and T Bellingham for Crown MW Ryan and JM Hudson for defendant
Sentenced
18 May 2018
SENTENCING NOTES OF FITZGERALD J
Solicitors: Meredith Connell, Auckland
To:M Ryan, Auckland J Hudson, Auckland
R v Mitchell [2018] NZHC 1112 [18 May 2018]
Introduction
[1] Mr Mitchell, you appear today for sentence on six counts in respect of which you were unanimously convicted by a jury in March 2018. As you have heard, there are three counts relating to offending you committed in 2017:
(a)Abduction with intent to have sexual connection, which has a maximum of 14 years’ imprisonment;
(b)Wounding with intent to cause grievous bodily harm, which has a maximum of 14 years’ imprisonment; and
(c)Assault with intent to commit sexual violation, which carries a maximum of 10 years’ imprisonment.
[2] There are a further three counts relating to offending in 1992, each of which carries a maximum sentence of 14 years’ imprisonment under the Crimes Act as it stood in 1992. They are:
(a)Abduction with intent to have sexual intercourse;
(b)Sexual violation through unlawful sexual connection; and
(c)Rape.
[3] As you have heard and you are aware that, notwithstanding those maximum finite sentences, the Crown says that an indefinite sentence of preventive detention is a necessary response to your offending.
[4] In considering the appropriate sentence today, I will first outline the relevant facts of your offending. These will be matters with which you, and many of those here in Court today, are familiar. However, it is also important that I summarise the factual background, so that the broader community is aware of the basis upon which I am sentencing you today.
The offending
The 2017 charges
[5]I begin by briefly outlining your 2017 offending.
[6] The victim, Ms F, had been watching the Auckland Pride Parade in Ponsonby on the evening of 25 February 2017. She had been drinking alcohol that evening, which made her vulnerable to your actions. After her friends went on to a bar on Karangahape Road, she remained outside for a time, and then in the early hours of 26 February 2017, began to walk towards her home. This took her along Great North Road in Grey Lynn. CCTV footage showed her ultimately walking alone, with few or no people around her.
[7] You were out driving in the area. At some point along Great North Road, Ms F got into your car — it is not clear on what basis she did so; for example, whether you forced her into your car, or perhaps enticed her with an offer of a ride home. Ms F does not recall these events. Suffice to say that, between getting into your car and getting out of the car, the jury was satisfied that you had unlawfully taken her away, without her consent, or that any consent she gave was induced by fraud or duress. The jury was also satisfied that you took her away with intent to have sexual connection.
[8] You took Ms F some distance away to a remote stone quarry location, located at Riverhead. You had been there before, in connection with your work, albeit at least a year or more beforehand. You took Ms F from the car at a location within the quarry. Her clothes were removed, leaving her only in her underwear. You had armed yourself with a weapon and put on a mask. I infer from the evidence led at trial that this weapon was the pool cue in your car, which you owned for the purposes of competitive pool playing; specifically, the thicker half of the cue that could be unscrewed from the full- length cue.
[9] You had struck Ms F at least once on the head with the pool cue. The first memory she has of these events is coming to, to find herself in the quarry, wearing only her underwear, with you standing over her, in your mask. She recalls touching her head and it being covered with blood. You began shouting instructions to her,
including that she turn around. She did not comply. You hit her again with the pool cue, swearing at her, and saying words to the effect that she would get herself killed, or you would kill her.
[10] Ms F either lost consciousness at that point, or at least has no recollection of the next immediate events. Thankfully, she managed to somehow escape you. Her next memory is of fleeing through the quarry, on her mobile phone to the Police. At around this time, you left the scene in your car. Unfortunately, given the remote location of the quarry and lack of signage in the immediate area, Ms F was unable for some time to inform the Police where she was. It took approximately an hour before Police reached her.
[11] CCTV footage from in and around the Great North Road area, and cell phone polling data, showed you as being in the area at the time Ms F was taken. At the quarry, the Police found various items of evidence, including tyre tracks that were consistent with some of the tyres on your car. CCTV footage from the quarry showed your car entering and leaving the quarry (although its licence plates were not discernible in the footage). The Police also found a pair of gloves at the scene, which contained your DNA.
[12] You said that you did not commit the offending against Ms F. You relied on matters such as the fact the pool cue carried no DNA at all, that none of Ms F’s DNA was found in your car, and you concocted what can only be described as an elaborate story about visiting a series of parks across Auckland that evening. Your explanation for the gloves having your DNA inside them was that you had tried on the gloves in a shop but had not purchased them and put them back on the shelf. The jury obviously rejected your version of events.
The 1992 charges
[13] I turn now to your 1992 offending. After the Police obtained a DNA sample from you in connection with the 2017 charges, they were able to link your DNA to a sample taken in connection with an unsolved rape against Ms G in 1992.
[14] On the evening of 29 May 1992, Ms G had been at a bar in Auckland, attending a gig. Your version of events was that you had likely met Ms G at the gig, had offered to drive her home and, at some point, the two of you had agreed to have sex in a secluded area. You said it was entirely consensual.
[15] Ms G’s evidence was that she decided to walk home after the gig. As she was walking home, in the Western Springs area, a car stopped, and the male driver offered her a lift. She accepted, and she was dropped off part way along Rosebank Road, though not at her final destination. The car drove off in the direction she was intending to walk.
[16] While it was not a necessary part of the Crown case, I consider it highly likely that it was you who offered Ms G a lift in your car, and who dropped her off part way down Rosebank Road.
[17] When Ms G walked further down the street, you ambushed her from a hiding place behind a tree. You punched her in the face and in the head, enough to stun her, but not to drop her, and then you put her in a head lock. She could not see your face. You walked her down a long driveway in an industrial area, to the rear of the building. She tried to get away, and to bite you, and you punched her again, in the head or the face, with the result she did not try to struggle from that point. Once you got behind the building, you told her to turn around and to get down on her knees. Ms G described being terrified at this time. You had taken off or pulled up her jackets, body suit and bra, up around the top of her head around her eyes, so she could not see. You also told her to take off her jeans. You then forced her to perform oral sex on you.
[18] You then told her to lay on the ground. And, you allowed her to put her jackets underneath her, given the ground was rough. You then got on top of her and you raped her. Afterwards you apologised. You got Ms G to roll over onto her stomach and you tied her hands behind her back with her pantyhose, tightened the clothing around her head and put a rag or something similar in her mouth, as a gag. You went through her bag and her belongings. You told her to stay there and be quiet for 20 minutes, threatening her that you would otherwise return and find her. You then left the scene. Ms G managed to free herself quite easily, and got back into her clothes. She waited
at the scene for a time, and described that she felt really scared, including that she might make a noise and that you would come back. After a time, she left the scene and was able to obtain help. Mr Mitchell, it goes without saying that the jury obviously accepted Ms G’s version of events.
Victim impact statements
[19] Ms F and her parents have each provided victim impact statements and Ms F has read her statement here in open court today. That obviously took considerable courage.
[20] It is clear from all statements that your offending has had a devastating effect on Ms F and members of her immediate family.
[21] Ms F’s victim impact statement shows that your offending has had lasting physical, psychological, emotional and financial effects on her. Unsurprisingly, however, Ms F describes the adverse effect your offending has had on her mental health as eclipsing the physical injuries. Your offending, and its aftermath, including the trial and the media, and no doubt this sentencing, has been an understandably harrowing ordeal. I wish to acknowledge Ms F’s dignity throughout the process.
[22] I have not been provided with a victim impact statement in relation to your 1992 offending, but as the defence responsibly acknowledge, there is no doubt that Ms G will have suffered psychologically as a result of your offending. I also wish to acknowledge Ms G’s dignity, including during the giving of her evidence.
Approach to sentencing
[23] Mr Mitchell, I turn now to the sentences to be imposed. I will first determine the finite sentence that ought to be imposed for your offending, having regard to purposes and principles of sentencing I must take into account, and to guidance from Court of Appeal cases in relation to violent and sexual offending.1 After I have reached an end sentence on your offending, I will then consider whether I ought to impose a
1 R v Taueki [2005] 3 NZLR 372 (CA), R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR
750 and, in relation to the 1992 offending, R v Clark [1987] 1 NZLR 380 (CA).
sentence of preventive detention. The purpose of preventive detention is not punitive.2 Rather, it is to protect the community from offenders who pose significant and ongoing risk.3
Purposes and principles of sentencing
[24] The relevant purposes in sentencing you today are to hold you accountable for harm done to the victims and the community,4 to denounce the conduct in which you were involved5 and to protect the community from further offending you may commit.6
[25] The principles of sentencing to which I have particular regard are the gravity of the offending, in particular your culpability,7 and the seriousness of the offences here, as indicated by the maximum sentence of 14 years available on all but one charge.8 I must also take into account any information provided to me as to the effect of the offending on the victims.9
Starting points
[26] I will first determine the starting points appropriate for each set of offending, by having regard to the circumstances of the offending itself. Both the Crown and the defence have taken what I consider to be responsible approaches to the starting points in this case, which mean they are not too far apart in what they say.
[27] Once I have determined the starting points, I will then determine what adjustments should be made to them, upwards or downwards, by having regard to your personal circumstances. The Crown has also submitted that I should impose a minimum period of imprisonment that must be served before your release, and Mr Ryan properly accepts that that is appropriate. The last step is therefore to determine the length of the minimum period of imprisonment.
2 R v C [2003] 1 NZLR 30 (CA) at [5]-[7].
3 At [5].
4 Sentencing Act 2002, s 7(a).
5 Section 7(e).
6 Section 7(g).
7 Section 8(a).
8 Section 8(b).
9 Section 8(f).
2017 offending
[28] Both the Crown and the defence have taken the approach of considering a global sentence for all the 2017 offending. Given the nature of that offending, I consider that to be appropriate.10
[29] The Crown submits the appropriate starting point for your 2017 offending is nine to 10 years’ imprisonment. Ms Lummis, for the Crown, submits I should have regard to the Court of Appeal’s guideline judgment for violence offending, R v Taueki,11 and to the guideline judgment for sexual offending because your offending in 2017 was sexually motivated.12 She further submits that there are eight aggravating factors that raise the seriousness of the offending into band two in Taueki, and thus suggests a starting point at the upper end of that five to 10-year range.
[30] Mr Ryan, who appears on your behalf, submits that a nine-year starting point is appropriate. He has responsibly acknowledged that several of the aggravating factors identified by the Crown were present here, but submits the degree of planning or premeditation was not as high as the Crown suggests. Rather, he submits your offending was to an extent opportunistic, and that you resorted to items ordinarily kept in your car to aid in the commission of your offences.
[31] You had driven from your home across Auckland towards the Pride Parade, taking with you a mask, gloves and an object (the cue) that you later used as a weapon. You were aware of the remote area to which you took Ms F. I accept the Crown’s submission that this offending was planned and premeditated. I do not accept that you “just happened” to be in the area of Great North Road that evening; even on your own evidence, you did not intend to go to the Parade because you dislike crowds. Further, I do not consider the potentially ordinary presence of items such as gloves or the pool cue in the back of your car reduces the seriousness of that planning and premeditation.
10 The charges of abduction with intent to have sexual connection and wounding with intent to cause grievous bodily harm, each having a maximum penalty of 14 years imprisonment, could be described as the “lead offences”.
11 R v Taueki [2005] 3 NZLR 372 (CA). Charge 2 against Mr Mitchell is a “GBH offence” as described in R v Taueki.
12 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
[32] I also accept that Ms F was a vulnerable victim, and thus particularly susceptible to your attack. A disturbing feature of your offending is that you would have been very aware of this at the time, and you chose to take advantage of it. I accept that detaining her by taking her far away to the remote Riverhead quarry is also an aggravating feature. I also accept that the use of a weapon and the fact that you struck Ms F around her head with it is an aggravating factor. And I accept, as discussed earlier, that the harm to Ms F extends beyond the physical harm. To that extent, the “harm to the victim” is also an aggravating factor.
[33] I do not, however, consider the “degree of violation”, an aggravating factor raised in R v AM13 and referred to by the Crown, to be relevant in the present case. The Court of Appeal’s judgment is clear that this factor is relevant to the force and nature of penetrative sexual violation, when that was not present in this case.
[34]No mitigating factors of the offending have been suggested.
[35] Both Ms Lummis and Mr Ryan have also addressed sentencing in other cases of abduction with intent to have sexual connection.14 While I accept that the degree of premeditation in the cases to which they have referred could be said to be more serious than in this case, the length and extent of detention in this case is more serious, as is the vulnerability of the victim.
[36] Reflecting that offending of this kind will vary in an infinite number of ways, but recognising that sentencing should, as far as possible, be consistent with sentences for similar offending,15 I consider that a starting point of nine years’ imprisonment is appropriate for your 2017 offending. I have particular regard to the premeditation, extent and duration of the detention, the vulnerability of the victim and the serious violence-related aggravating factors.
13 At [52].
14 R v Bond CA 302/95, 8 November 1995; R v Parker CA 286-97, 2 October 1997; and R v Burne
CA 367/01, 20 June 2002.
15 Sentencing Act 2002, s 8(e).
1992 offending
[37] I now turn to your offending in 1992. Given the historic nature of these charges, and that there have been changes to the maximum penalty for some of the charges since you committed them, I do need to address some legal issues in this section of my sentencing.
[38] The Crown submits that the relevant sentencing approach to the 1992 offending should be taken from R v A, a judgment of the Court of Appeal released in March 1994, so after your offending.16 I do not, however, consider, that approach to be appropriate. The guidance provided by the Court of Appeal in R v A followed Parliament raising the maximum sentence of imprisonment for rape from 14 years to 20 years, albeit only one year after the offending in this case. However, as noted more recently by the Supreme Court in Morgan v Superintendent, Rimutaka Prison, s 6(1) of the Sentencing Act 2002 and s 25(g) of the New Zealand Bill of Rights Act 1990 are both directed at the maximum penalty prescribed for a generic offence.17 Those sections provide in substance that an offender should have the benefit of the lesser penalty in the event a penalty has been varied between commission of an offence and sentencing. In R v W, the Court of Appeal, applying Morgan, considered guideline judgments and confirmed that they could apply retrospectively but only where the maximum penalty remains unchanged.18 But between you committing your 1992 offending and the Court of Appeal passing judgment in R v A, the maximum sentence of imprisonment for rape rose by six years and the guidance from the Court of Appeal responded accordingly. It is therefore appropriate to have regard to guidance that applied to the 14-year maximum, in the 1987 case of R v Clark, to which both counsel have referred today.19
[39] In Clark, the Court of Appeal said that “a figure of five years should be taken as a starting point in a contested case.”20 That figure is then to be adjusted in
16 R v A [1994] 2 NZLR 129 (CA).
17 Morgan v Superintendent, Rimutaka Prison [2005] NZSC 26, [2005] 3 NZLR 1 at [29] per Gault J, at [57] per Blanchard J, at [85]–[86] per Tipping J and at [112] per Henry J; Elias CJ dissenting.
18 R v W (2006) 23 CRNZ 531 (CA).
19 R v Clark [1987] 1 NZLR 380 (CA).
20 At 383.
accordance with aggravating and mitigating factors identified in the case, which the Court emphasised were not exhaustive.21
[40] In this case, the Crown identifies particular aggravating factors as being planning and premeditation, violence and detention, the vulnerability of the victim, the period of detention, the harm to the victim and the degree of violation. On this basis, the Crown submits the appropriate starting point on your 1992 offending is seven to eight years’ imprisonment.
[41] Mr Ryan also refers to R v Clark, together with sentencing in similar cases around the time of your offending.22 By reference to aggravating factors, and implicitly accepting a number relied on by the Crown, Mr Ryan submits that a starting point is seven years imprisonment is appropriate.
[42] Your 1992 offending was clearly premeditated, evidenced by the fact that you first picked Ms G up in your car, dropped her on Rosebank Road, and then took the time to hide and then ambush her from behind a tree. There is an element of detention, which would ordinarily be an aggravating factor to the rape charge, but I am conscious not to “double-count” that matter, as your offending also involves the charge of abduction with intent to have sexual intercourse. There was a moderate degree of violence over and above that inherent in the offences themselves, with Ms G put in a headlock and punched a number of times on her head and face. Ms G was a vulnerable victim, in the sense she was a stranger to you, alone on the street at night. I do not place significant weight however, on the period of detention and the degree of harm to the victim, or the degree of violation. I should emphasis that this is not in any way to discount or undermine those factors either generally or in this case, but in my view, they are not materially aggravating in the case relative to what is inherent in serious charges of this nature.
[43] Neither the Crown nor the defence suggested any mitigating factors in relation to your 1992 offending.
21 At 383.
22 R v Brown CA 308-87, 15 April 1988; R v Fepuleai CA 248-89, 18 September 1989.
[44] Assessing all the matters just discussed, I consider that an appropriate starting point for your 1992 offending is seven years’ imprisonment.
Conclusion on starting point and adjustment for totality
[45] Both the Crown and defence agree, as do I, that cumulative, rather than concurrent, sentences are appropriate as between your 1992 and 2017 offending — which means the two sentences must be added together, rather than served at the same time. The offending relates to separate victims, separated by many years.
[46] The Crown accepts, however, that cumulative sentences will need to be adjusted to reflect what is known as the “totality” principle, namely that a total term of cumulative sentences ought not to be wholly out of proportion to the gravity of the overall offending.23 Unadjusted, your total, cumulative starting point would be 16 years’ of imprisonment. The Crown, though adopting a slightly higher starting point that I have adopted, submits an adjusted starting point of around 14 years’ imprisonment would be appropriate. Mr Ryan submits that a total starting point of 12 years’ imprisonment is appropriate. Given I have adopted a slightly lower overall starting point than the Crown, I adopt a total starting point for both the 1992 and 2017 offending of 12 years’ imprisonment.
Aggravating and mitigating factors relating to offender
[47] I turn now to whether any adjustments, up or down, ought to be made to this starting point for aggravating or mitigating factors relating to you personally, rather than to the offending itself.
[48] In terms of the aggravating factors, you have a number of relevant prior convictions, including for rape and indecent assault. Some of your prior offending remains subject to suppression orders, and thus while I have carefully read the materials relating to it and taken it into account, I do not discuss it in detail in these sentencing notes. But most proximate to your 1992 offending, in 1985, you had been
23 Sentencing Act 2002, s 85(2).
convicted and sentenced to five years’ imprisonment for rape, sodomy and indecent assault.
[49] The Crown submits that an uplift of 12 to 18 months for your prior relevant offending is appropriate. The defence submits that an uplift of 12 months is appropriate. Conscious that you have already been sentenced for your prior offending, I adopt an uplift of 12 months, to take your overall sentence at this point to 13 years’ imprisonment.
[50] In terms of personal mitigating factors, Mr Ryan refers to your upbringing, which was characterised by regular violence from your father, as well as your recent health issues.
[51] While it is clear that you had a troubled early upbringing, particularly in connection with your father, I do not consider this to be of a nature which warrants a discount by way of mitigation. Such discounts are infrequent and generally it is necessary to show that prolonged abuse has materially contributed to the offending.24 Though the two health assessors’ reports prepared for this hearing do mention your abuse, by way of violence, at an early age, there is no suggestion that abuse had a close nexus, or a material contribution, to the current offending.
[52] In terms of your health, I am told you have recently be diagnosed with bladder cancer. The health assessor reports also state you have type two diabetes. The law does permit a discount for factors such as health, not to recognise them in themselves, but to take into account the fact that they are likely to make serving a sentence of imprisonment more difficult than would have been the case for a person who enjoys good health.25 Generally, however, any discounts applied are limited.26
[53] I do not have anything before me other than the general comments about your health, both in the PAC Report and the two health assessor reports. No medical report or evidence is before me directed to your current state of health, future treatment options and prognosis, including in the context of a custodial sentence. Further, you
24 R v Whiu [2007] NZCA 591 at [32].
25 See, for example, M v R [2013] NZCA 325 at [52].
26 At [54].
have been remanded in custody since, I understand, February 2017, and there is no information available to me to suggest that there have been any particular health- related issues for you as a result of you being in custody for this time.
[54] In all these circumstances, while I recognise that you do have some health issues which I am prepared to take into account in sentencing, I am unable to apply anything other than a very modest discount. I adopt a discount of three months.
[55] You did not plead guilty to your offending. Therefore this brings your end finite sentence to 12 years, nine months’ imprisonment.
Minimum period of imprisonment
[56] I now consider whether I should impose a minimum period of imprisonment. A minimum period of imprisonment is imposed where the Court is satisfied that the usual period for being eligible for parole (one third of the total sentence) is insufficient for holding the offender accountable, denouncing the conduct, deterring the offender or other persons from committing the same or similar crimes and/or protecting the community from the offender.27
[57] Mr Ryan, quite properly in my view, accepts that a minimum period of imprisonment is appropriate in this case.
[58] A minimum period of imprisonment must not exceed the lesser of two thirds of the full term of the sentence or ten years’ imprisonment.28 The Crown submits that the full two thirds minimum period of imprisonment available should be imposed. Mr Ryan on the other hand, submits that a minimum period of imprisonment of not more than 50 per cent of your finite sentence is appropriate.
[59] I accept the Crown’s position. In my view, and having regard to the relevant purposes and principles of sentencing,29 your 2017 offending in particular was sufficiently serious that a minimum parole period of two thirds is warranted. That
27 Sentencing Act 2002, s 86(2).
28 Section 86(4).
29 Sentencing Act 2002, ss 7, 8 and 9.
offending involved a particularly vulnerable victim, serious violence, a lengthy detention and serious consequences to the victim.
[60] The Crown submits that I may also impose a minimum period of imprisonment in respect of the 1992 offending, because although such minimum periods were not introduced until 1993, they may apply retrospectively.30 However, the Court of Appeal has held, in 2011, that there is no jurisdiction to impose a minimum period of imprisonment for offending which took place before 1 September 1993.31 On this basis, the minimum period of imprisonment can only apply to the sentence for the 2017 charges, leading to a minimum period of six years.
[61] Accordingly, your end finite sentence would be 12 years, nine months’ imprisonment, with a minimum period of imprisonment of six years.
Should preventive detention be imposed?
[62] Having arrived at what I consider to be an appropriate finite sentence for your offending, I now turn to consider whether I should instead order preventive detention. As you are aware, the Crown has sought an order for preventive detention under the Sentencing Act 2002.32 Again, this is somewhat complicated by the fact that some of your offending pre-dates that Act. This calls into play transitional provisions in the 2002 Act, so again I must address some legal issues in this section of my sentencing.
[63] In relation to your 1992 offending, the Supreme Court has made it clear in Mist v R that a sentence of preventive detention may be imposed on pre-2002 offending only if the offender qualified for such a sentence under both s 75 of the Criminal Justice Act 1985 (which was the Act in force at the time of your 1992 offending) and the Sentencing Act 2002.33 Under s 75 of the 1985 Act, as it stood in 1992, it was necessary for the offender to have been not less than 21 years of age at the time of the commission of the offence, to have been convicted of an offence of sexual violation,34
30 The Crown relied on s 2(4) of the Criminal Justice Amendment Act (No 2) 1999.
31 Davies v R [2011] NZCA 546, [2012] 1 NZLR 363 and R v Brand CA 398/02, 7 April 2003.
32 Sentencing Act 2002, s 5(3).
33 Mist v R [2005] NZSC 77, [2006] 3 NZLR 145 at [69]; see also R v C [2003] 1 NZLR 30 (CA) at
[3] and Sentencing Act 2002, s 153 (relating to transitional provisions).
34 Crimes Act 1961, s 128 (as it stood in 1992).
or to have been convicted of a specified offence, which includes rape,35 on at least one other occasion since turning 17 years old. Where those requirements were met, the High Court could impose preventive detention “if it was satisfied that it was expedient for the protection of the public that [the offender] … should be detained in custody for a substantial period”.36
[64] I am satisfied, Mr Mitchell, that in relation to both the 1992 and 2017 offending, save for charge 4 in relation to Ms G, abduction (which was not then a specified offence under the 1985 legislation) that there is jurisdiction to impose a sentence of preventive detention. You were over the ages of 18 and 21 when the offences were committed and had previously been convicted for a qualifying offence that was committed after you turned 17, namely your conviction for rape in 1985.37 You have been notified that a sentence of preventive detention will be considered and two health assessors’ reports have been provided to assist me determine if that is the appropriate sentence.38
[65] In relation to your 1992 offending, and as I noted earlier, I must determine whether I am satisfied that it is expedient for the protection of the public that you should be detained in custody for a substantial period.39 In relation to your 2017 offending, I must determine whether I am satisfied you are likely to commit another qualifying offence if released at the sentence expiry date.40
[66] In making my assessment, I must have regard to five factors, which ultimately echo earlier guidance on the approach under the 1985 Act. Those five factors are:41
(a)any pattern of serious offending disclosed by the offender’s history; and
(b)the seriousness of the harm to the community caused by the offending; and
35 Criminal Justice Act 1985, s 75(4).
36 Section 75(2).
37 Section 75 and Sentencing Act 2002, s 87(2)(a) and (b).
38 Section 88(1).
39 Criminal Justice Act 1985, s 75(2).
40 Sentencing Act 2002, s 87(2)(c).
41 Sentencing Act 2002, s 87(4). For guidance under the 1985 Act, see R v Leitch [1998] 1 NZLR 420 (CA) at 429
(c)information indicating a tendency to commit serious offences in future; and
(d)the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[67] I note at the outset that several of the factors require me to examine your entire criminal history.42 Accordingly, I record that I have had full regard to historical offending before the courts which remains subject to ongoing suppression, but as noted earlier, say no more about that offending in my reasons.
[68] Before addressing the five factors, I first summarise the health assessors’ reports that have been provided to assist me.
Health assessors’ reports
[69] Reports have been prepared by Dr Jeremy Skipworth and Ms Anne Huddleston, both of whom are experienced in their field and work for Regional Forensic Psychiatry Services. Both writers conducted two interviews with you, and also spoke with a member of your immediate family. They were provided records of your criminal history, including summaries of facts and sentencing notes where relevant.
[70] Dr Skipworth is a Consultant Forensic Psychiatrist, and Clinical Director of the Auckland Regional Forensic Psychiatry Services. Dr Skipworth noted two limitations to his risk assessment — the difficulty of predicting with accuracy an offender’s behaviour after what may be a lengthy period of imprisonment and the nature of the prediction depending on the extrapolation of conclusions based on statistics. Notwithstanding those limitations, Dr Skipworth applied what is called the Static-99R risk assessment instrument, and assessed that you are at high risk of reoffending. He noted he was further limited by your reluctance to discuss previous convictions in an open and honest fashion, and he doubted the truthfulness of some of your claims. In Dr Skipworth’s professional opinion, you require motivation to accept
42 R v Ebbett CA 56/88, 28 September 1988.
you have a problem and your current denial of your offending makes it unlikely you will be seen as eligible for sex offender rehabilitation. He considers the high risk of further sexual offending is particularly in relation to vulnerable adult females who are strangers to you.
[71] Ms Huddleston is a Senior Clinical Psychologist. She also applied the Static- 99R risk assessment instrument and assessed you as being in the highest risk category of reoffending. Ms Huddleston applied two other risk assessment tools. According to what is called the STABLE 2007 measure, your risk of sexual reoffending is assessed as very high, and she observes that you will need significant and lengthy treatment to address your underlying risk factors. According to the Violence Risk Scale, concerning the prediction of future risk of violence, you were assessed in the moderate range. The overall picture, she concluded, was that you were at a significant risk of future sexual and violent offending, there being what appears to be an “entrenched pattern”.
[72] I turn now to the factors I must address when considering a sentence of preventive detention.
Is there a pattern of serious offending?43
[73] In my view, there is a clear and disturbing pattern of serious sexual offending by you, over a period of some decades. Having considered your full offending history, there is also a clear similarity between the nature of your offending, including its predatory nature, offending against strangers, seeking out vulnerable victims, associated violence, threats of further violence if instructions are not carried out, and in more recent times, removal of your victims to remote locations to prevent detection. Particularly in relation to your earlier offending, it occurred in reasonably quick succession.
[74] I am conscious of the fact that there was a gap of some 25 years between your offending in 1992 and 2017. However, despite that passage of time, the clear sexual
43 See R v Priske CA 266/87, 2 June 1998, R v Hapakuku (1991) 7 CRNZ 571 (CA), R v Ebbett CA 56/88, 28 September 1988, R v Taite (1998) 16 CRNZ 10 (CA) for matters relevant to this factor.
motivation to your 2017 offending demonstrates that your sexual deviancy has not diminished over time, and in a sense, the seriousness of your offending has escalated, while accommodating your advancing age. This reflects the particular vulnerability of your victim, the serious degree of violence involved and the use of a weapon to inflict significant harm. I also note it occurred shortly after you moving out from living for a long period with close family members, with you noting to Ms Huddleston the freedom that it gave you.
Seriousness of the harm to the community
[75] There is no doubt that your offending is of the utmost harm to the community. Your offending includes preying on vulnerable female victims, who are often alone at night, and engaging in serious sexual and/or violent offending against them.
Information indicating a tendency to commit serious offences in the future
[76] I have already summarised the health assessors’ professional opinions, which are relevant to this factor. Taking those into account, and assessing this factor against your prior offending and your denial of almost all your offending, I have no doubt that there a is a real and significant likelihood that you will commit serious offences in the future. As Mr Ryan has raised in his written submissions, you are now 60 years of age. But age does not invariably reduce a person’s risk of sexual offending.44 In your case, your advancing age has clearly not reduced the risk, and your most recent offending, save for the fact that your victim managed to escape, could well have been your most serious. Ultimately, the pattern of offending has extended over practically the whole of your life, from teenage years to now. Absent significant and successful rehabilitation, there is no basis for me to conclude that it will stop.
Efforts by the offender to address the offending
[77] In assessing whether efforts have been made to address the offending, denial of the offending is highly material because while it is maintained, effective treatment is impossible.45 Thus the imposition of an indefinite sentence motivates reform.46
44 Hartley v R [2014] NZCA 162; Rubick v R [2016] NZCA 8.
45 R v T CA 249/99.
46 R v Matete CA 100/06, 17 October 2006.
[78] Both health assessors noted your unwillingness to accept any responsibility for your actions, and thus as Dr Skipworth noted, you stated to him that you see no purpose in participating in sex offender rehabilitation. He observed that your attitude to intervention is not indicative of a genuine acceptance that you have a problem.
[79] Ms Huddleston’s report concurs with that view. She noted you were unwilling to substantively engage on the 1992 and 2017 offending. She said that you also minimised the seriousness of past offending and did not express any victim empathy.
[80] These are serious matters. While you continue to deny your offending, and minimise the seriousness of any offending you are prepared to acknowledge, effective treatment is likely impossible. You have not, voluntarily or otherwise, engaged in any professional treatment in connection with any of your prior offending. While both counsel have acknowledged that programmes available in the 1980s were unlikely to be as broad as available now, the point remains that, given your denial of your offending, you have expressed no willingness to engage in any form of rehabilitative programmes, and indeed have in fact stated quite the opposite to one of the health assessors.
Lengthy determinate sentence is preferable if it provides adequate protection
[81] Finally, given that the above factors point strongly, in my view, to a sentence of preventive detention, I must consider whether a lengthy finite sentence, together with the possibility of an extended supervision order on release, would provide adequate protection to the public.47 Such an order “provides a potential safety valve” to protect the community upon release.48 The maximum term of an extended supervision order is 10 years49 and intensive monitoring conditions may last not more than 12 months.50
[82] The health assessors’ opinions suggest, and my view is that a finite sentence would not provide adequate protection. This is particularly because of your denial of
47 R v Mist [2005] 2 NZLR 791 (CA) and R v Parahi [2005] 3 NZLR 356 (CA).
48 R v Mist [2005] 2 NZLR 791 (CA) at [101] (emphasis added).
49 Parole Act 2002, s 107I(4).
50 Section 107IAC(3).
your offending, the resulting real risk of there being no successful rehabilitation and the very high likelihood of you committing serious sexual offences in the future. This is not, in my view, a “finely balanced case”, 51 or ongoing but “lower level” sexual offending, where a lengthy finite sentence and the possibility of an extended supervision order have been considered appropriate.52
[83] Factors I have weighed in particular in this context are your likely age at the time of potential release from a finite sentence, and your health at that time. In terms of the latter, you may well be in fine health, or at least in a similar position to when you committed your most recent offending, depending on treatment for your current medical issues. Further, you would be around or in your early 70s upon release (assuming the full term was served). In my view, given your serious offending at the age of 60, the pattern of similar serious offending across several decades, and the risk assessments carried out by the health assessors which take into account your age, I do not consider your age at the time of release from a finite sentence to sufficiently militate against a sentence of preventive detention. This is particularly so given that as matters currently stand, there is no comfort that you will successfully engage in rehabilitation programmes. Conversely, an indefinite sentence may be the strong motivator required for you to acknowledge the causes of your offending and take genuine steps to deal with them.
Conclusion on preventive detention
[84] For these reasons, I am satisfied that a sentence of preventive detention is the appropriate response to your 1992 and 2017 offending.
[85] In the context of a sentence of preventive detention, I must also impose a minimum period of imprisonment. Under the 2002 Act, the minimum period must be no less than five years.53 In assessing the minimum period, I must first assess whether that minimum period properly reflects the gravity of your offending, and second, whether that period is adequate for public protection purposes.
51 R v Parahi [2005] 3 NLR 356 at [33].
52 At [86] and [87].
53 Section 89(1).
[86] Given: the gravity of your offending; that you did not plead guilty (such that no discounts can be factored in at this stage); your age (which is at present not particularly advanced); and the risk you pose to the community; the statutory minimum period of five years is not sufficient. Focussing solely on gravity of offending, a period of somewhat higher than five years might be appropriate. However, I consider a more significant period of time is required for the purposes of the safety of the community. For this reason, I adopt a minimum period of imprisonment of 10 years.
Sentence
[87]Mr Mitchell, will you please now stand.
[88] On each charge, save for charge 4 (abduction in relation to Ms G), I sentence you to preventive detention, with a minimum period of imprisonment of 10 years. On charge 4, abduction of Ms G under s 208(b) of the Crimes Act as it stood in 1992, I sentence you to five years’ imprisonment, to be served concurrently.
[89]You may stand down.
Fitzgerald J
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