R v N

[2015] NZHC 1204

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-15620 [2015] NZHC 1204

THE QUEEN

v

AN

Hearing:	26 May 2015
Appearances:	D G Johnstone and G M Woods-Child for Crown S D Cassidy for Defendant
Sentence:	26 May 2015

SENTENCING REMARKS OF M PETERS J

Solicitors:           Meredith Connell, Auckland

Public Defence Service, Manukau

Copy for:           National Intellectual Disability Care Agency, Northern Region

R v AN [2015] NZHC 1204 [26 May 2015]

[1]      Mr N, you are for sentence on seven counts to which you pleaded guilty in the Auckland District Court on 7 November 2014.

[2]      In table form, the nature of the offending showing the dates it spanned, is as follows:1

Count	Date Range	Offence	Penalty
5	05.01.04 – 04.01.06	Sexual violation of A by rape.	20 years’ imprisonment.
6	22.01.04 – 21.01.05	Indecent assault of B, a girl under the age of 12 years.	10 years’ imprisonment.
7 (Rep)	22.01.04 – 19.05.05	Indecent assault of B, a girl under the age of 12 years.	10 years’ imprisonment.
8 (Rep)	20.05.05 – 21.01.10	Did an indecent act on B, a child.	14 years’ imprisonment.
9 (Rep)	22.01.08 – 21.01.10	Sexual violation of B by unlawful sexual connection.	20 years’ imprisonment.
10	22.01.10 – 21.01.11	Did an indecent act on B, a child.	14 years’ imprisonment.
11 (Rep)	01.01.04 – 31.12.05	Sexual violation of C by unlawful sexual connection.	20 years’ imprisonment.

[3]      Counts 7 to 9 and 11 of those offences are representative charges which means that the Crown’s case was that the offences occurred more than once in the period concerned.  Those are the indecent assaults on B, a girl under the age of 12; an indecent act on B, a child; sexual violation of B by unlawful sexual connection and then, in relation to a different complainant, count 11, sexual violation of C by unlawful sexual connection.

[4]      I discharge you on counts 1 to 4 pursuant to s 147 Criminal Procedure Act

2011.

1      Counts 5, 9 and 11 are brought pursuant to ss 128(1)(a) and 128B Crimes Act 1961, counts 6 and

7 pursuant to s 133(1)(a) Crimes Act 1961 (no longer in force) and counts 8 and 10 pursuant to s 132(3) Crimes Act 1961.

[5]      You are for sentence in the High Court because the Crown seeks a sentence of preventive detention.   Each of the offences for which you are for sentence is a “qualifying offence” for the purpose of considering a sentence of preventive detention.2

[6]      When preparing to sentence you today I have had the benefit of very good submissions made by the Crown, and by your lawyer, Mr Cassidy.  I have also read numerous expert medical reports, including from Mr G Wyatt, and Drs Pillai and Skipworth.  I have also had the benefit of hearing from Mr Wyatt today who assures me that, whatever orders I make, you will not be left to languish in the corner of a secure facility.

[7]      The Crown proposes, and Mr Cassidy agrees, that I should first consider the sentence that I would impose for the present offending, leaving aside the possibility of preventive detention.   That is the first step.   The second step is to consider whether I have jurisdiction to impose a sentence of preventive detention. As a matter of law that would require me to be satisfied that you are likely to commit another “qualifying offence” if you were to be released after the expiry of the finite sentence which I would otherwise impose.

Three strikes

[8]      The three strikes provisions of the Sentencing Act 2002 (“Sentencing Act”) do not apply given that even the most recent of the offences, being count 10, may not have been committed after 1 June 2010.3

Background

[9]      The charges on which you are for sentence were laid on 6 December 2012 and  you  pleaded  guilty  to  the  offending  approximately  two  years  later,  on

7 November 2014.

[10]     It is apparent from the summary of facts which I have read that you stood as an Uncle to the three complainants, all of whom had regular contact with you as they were growing up, whether because they lived at the same address in the case of complainants A and C or because they had regular contact with you in the case of B.

[11]     It is apparent from the summary that the complainant in count 5 was between

13 and 14 years old, and you were 19 or 20 when that offending was committed. There was  clearly a  degree of violence on  your part  and  your  acts  caused the complainant pain and suffering.

[12]     Complainant B was the victim of repeated offending by you.  She was only three years old in the period spanned by counts 6 and 7 and you were 18.  She was aged between four and eight in the period spanned by count 8 and between seven and eight on count 9.  The summary records that the sexual violation charged in count 9 occurred approximately twice on every second weekend when she visited her father.

[13]     The offending in count 10 occurred when the complainant was nine years old, as was the complainant in count 11.

[14]     The offences to which you have pleaded guilty are serious.  Your actions will have  long  lasting  effects  on  the  complainants  and  on  their  families  and  it  is something that they should never have had to contend with.

[15]   I have also had the benefit of hearing a victim impact statement from complainant B’s mother who talks about the serious effects, on a day to day basis, that your offending has had on her daughter and on her family.   She is naturally extremely concerned as to what the future holds and she considers that you betrayed her trust and the family’s trust, as indeed you did.

[16]     Equally, however, I am required to take into account the matters to which Mr Cassidy has referred me which is your well documented intellectual disability and the various factors which arise from your own background such as substance abuse from an early age and the significant abuse that you suffered, sexual and

otherwise, as you were growing up.   It is mandatory that I take these matters into account in sentencing you and in considering how best to deal with you.

Criminal history

[17]     Your criminal history includes one other relevant offence, being a conviction for indecent assault.  It says on the criminal history that offence was committed on a female aged between 12 and 16 but in fact, when one reviews the file, and I am grateful to the Crown in this respect, it appears that the victim was about two years old.

[18]     The assault occurred on 20 June 2005 and you were convicted and sentenced in March 2006.

[19]     I have the notes of Judge C S Blackie who sentenced you on that occasion. The Judge had a variety of reports, as I do, prepared by medical and other specialists, which the Judge considered gave a thorough assessment and investigation of your background and needs.4

[20]     Judge Blackie recorded that, in a report dated 22 March 2006, Mr Wyatt, Compulsory Care Co-ordinator of the Regional Intellectual Disability Care Agency, recommended  that  the  Court  make  an  order  pursuant  to  s 34(1)(b)(ii)  Criminal Procedure (Mentally Impaired Person) Act 2003.   The Crown endorsed that recommendation and your counsel, Mr Winter, accepted it.   The Judge made the order accordingly.  The effect of that order was to commit you to a secure facility as

a care recipient.5   Such an order is made instead of passing sentence.

[21]     As I understand it, the initial term of this care order was two years but it was extended in 2008 for a further year.  It expired in August 2009.

[22]     In March 2007, the order was transferred to a supervised care order which allowed you some leave overnight and on weekends.

[23]     In August 2008, you began attending the SAFE programme for adult sexual offenders.   This involved a combination of individual and group sessions twice a week.  You failed, however, to complete that programme when you returned to the community.

[24]     Counts 5 to 8 of the current offending occurred in the period prior to your placement under the care order, so before Judge Blackie made that order.  There is, however, some overlap between other counts in the current offending and the time at which you were subject to the care order.  So, you were offending while you were subject to that care order.

Procedural history

[25]     As  I understand  it  from  the  submissions  of defence  counsel,  there  were discussions with the Police in early 2013 regarding a resolution of all the offending with which you were then charged and which was alleged to have occurred after

2005/2006.   That resolution was proposed on the basis the Police not pursue the offending alleged to have been committed prior to you being in care.

[26]     Those discussions followed a report that the defence had obtained as to your fitness to stand trial.

[27]     In  March  2014,  the  Crown  itself  obtained  a  report  from  a  Dr  Wyness, following which they said they wished to proceed to trial against you on all charges.

[28]     At  your request,  Judge Andrée Wiltens  gave a  sentence indication  at  the Auckland District Court on 6 November 2014.   The indication was given on the basis that the Police would not pursue counts 1 to 4 but that you would plead guilty to counts 5 to 11 and avoid the need for a trial.  I record that at the time the Judge gave his indication, count 10 was a charge of sexual violation by unlawful sexual connection.

[29]     In that sentencing indication, which I have read, the Judge noted that the Crown might seek a sentence of preventive detention but he proceeded to give an indication  on  the  basis  that  a  determinate  sentence  would  be  imposed.     In

undertaking that assessment the Judge had regard to the very serious nature of the offending, of the fact that it involved young children, that it took place over a lengthy period, that you were in a position of trust and the children were vulnerable because of their age and because they trusted you.  The Judge also had regard to the effect of the offending on the children and their families.

[30]     The Judge referred to R v AM which is a “tariff” case,6 and having regard to the totality of the offending, the Judge adopted a starting point of 15 years’ imprisonment.   The Judge allowed a discount of 20 per cent for your early guilty plea and the fact that such a plea would, as I have said, make it unnecessary to have a trial  and  make  it  unnecessary  for  the  complainants  and  their  families  to  give evidence.  The Judge also said he would take into account your co-operation with the prosecution, your young age when the offending took place and your intellectual disability.

[31]     Both counsel are satisfied that I should proceed on the basis of the sentence indication given by Judge Andrée Wiltens because that is the basis on which you entered your guilty pleas.

[32]     After the indication was given, but while you were considering the matter, count 10 was amended and reduced in its seriousness.  It was amended from a sexual violation charge to a charge of an indecent act on a child.  The Crown acknowledges that this amendment would have reduced the starting point from, say, 15 years to

14 years.

[33]     Defence  counsel  submits  the  appropriate  starting  point  for  all  offending would be between 12 and 14 years’ imprisonment.  So, there are a couple of years between counsel but not a great deal.

[34]     Some counts preceded your sentencing on the June 2005 offending.  I have considered, as best I can, whether the order made by Judge Blackie affects the weight I should give to those counts in sentencing you today and you have heard my discussion with counsel.  It is apparent from R v Fissenden that each case must be

looked at on its merits.7     I do not propose to make a specific discount for the intervening sentence but I shall bear it in mind.

[35]     Given the sentence indication you received, I adopt a starting point for all offending of between 13 and 14 years.  I propose to allow a discount of, say, 12 to 15 per cent for the factors identified by the Judge, namely your cooperation with the prosecution, your intellectual disability and other matters, and a further 20 per cent for your guilty plea.  That would give me an end sentence of nine years, six months’ imprisonment.

Preventive detention

[36]     I turn now to consider the matter of preventive detention.

[37]     The Court may impose a sentence of preventive detention if the following criteria are met:

87       Sentence of preventive detention

…

(2)      This section applies if—

(a)       a  person  is  convicted  of  a  qualifying  sexual  or  violent offence (as that term is defined in subsection (5)); and

(b)       the  person  was  18  years  of  age  or  over  at  the  time  of committing the offence; and

(c)       the  court is  satisfied  that the  person is  likely to  commit another qualifying sexual or violent offence if the person is released at the sentence expiry date (as specified in subpart 3 of Part 1 of the Parole Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.

[38]     The criteria referred to in s 87(2)(a) and (b) are met.   The issue is as to s 87(2)(c).   As I have said, I may not impose a sentence of preventive detention unless I am first satisfied that you are likely to commit another qualifying sexual or violent offence if you are released at the sentence expiry date which in this case would be in nine years, six months’ time.

[39]     I consider the following matters relevant to that assessment.

[40]     First, as I have said you attended the SAFE programme for sexual offenders but you did not complete it.

[41]     Secondly, I have considered reports prepared by Mr Wyatt and Drs Pillai and Skipworth.  The first reports indicated that you had been uncooperative.  There were also some errors in the reports that were not the fault of the authors and so I asked all concerned to re-interview you, and to amend their reports as required.  It is apparent from the revised reports which I have received recently that you were much more cooperative “second time around” and generally adopted a much more mature approach which recognised the gravity of your offending and your situation.

[42]     Dr  Skipworth  assessed  you  as  currently  posing  a  high  risk  of  sexual offending,  having  regard  to  the  Static  99R  assessment  factors  and  the  matters assessed in the SVR-20 test, both of which are tools for risk assessment for sexual offending.8

[43]     That said, Dr Skipworth said there are:9

… important limitations in terms of the ability of the psychiatric profession to predict whether an individual such as [the Defendant] is likely to commit a further sexual offence.

[44]     Dr Skipworth added that these difficulties arise because there are limits to the prediction of risk in the future.  Predictions become less accurate the further into the future one looks.  In addition, the assessment tests to which I have referred derive from re-offending by groups and it is impossible to say which members of those groups have reoffended and which have not.

[45]     In conclusion on this point, Dr Skipworth says that:10

… providing a definitive view regarding [your] future risk of offending is

challenging.

8 Report of Dr Skipworth dated 4 March 2015, at [57].

9      At [44] – [48].

10 At [48].

[46]     Dr Pillai considered that you fell into the category of moderate to high risk of reoffending based on the Static 99 test and a greater likelihood of further offending having regard to the SVR-20 test.

[47]     That was, however, within a five year period and the Doctor was not able to express any as to what risk you might present five years plus hence.  The Doctor also expressed the view that your offending was of a type which may be amendable to further psychotherapeutic intervention.   That is an encouraging sign and one for which you should be grateful.  It is also Dr Pillai’s view that the SAFE programme has limitations when it is community based, as it was in your case.

[48]     Dr Pillai also expressed the same reservations as Dr Skipworth as to the reliability of an assessment as to future risk based upon current factors, rather than those that would prevail in nine years, six months’ time if you were to be released from prison then.

[49]     Accordingly, on present information if you were released now – and there is no prospect of that – you would pose a real risk to the community but the medical experts are not in your case able to predict what you would do in the future.

[50]     The third matter I take into account is this.  There is no record of you having offended in this way since January 2011.  It is not apparent to me whether Drs Pillai and Skipworth took that period or hiatus into account but to the extent you have offended at all since January 2011, it has been entirely unrelated.

[51]     Having considered all of these matters, I am not satisfied on the information before me that you would be likely to commit another qualifying sexual or violent offence in nine years, six months’ time.   I do not have jurisdiction to impose a sentence of preventive detention in the absence of that and accordingly propose to sentence you to a finite term.

Other orders

[52]     I have also considered whether I should make any other orders.  The Crown very helpfully addressed the other options and your counsel commented on them in his submissions.

[53]     It is in that context also that I heard from Mr Wyatt who is very helpfully present in Court today.   Having canvassed the issues thoroughly with counsel and having heard from Mr Wyatt, I do not propose to make any other orders at the moment.   I simply propose to sentence you to a period of imprisonment.  That is, however, on the basis of Mr Wyatt’s clear expectation that your file will be looked at in the future and that his Agency will keep a watching brief on you.  You can expect intervention and rehabilitative care in the future.

Sentence

[54]     I turn now to the sentence of imprisonment.   The Crown has proposed a minimum period of imprisonment of five years.  There is no objection to that from your counsel and nor could there be.   I propose to impose a minimum period of imprisonment of five years.

[55]     If you would stand please Mr N:

(a)       on counts 5, 9 and 11, I sentence you to nine years, six months’

imprisonment;

(b)on every other count I sentence you to a term of imprisonment of seven years;

(c)       I impose a minimum period of imprisonment of five years on each of those offences.

[56]     Stand down.

..................................................................

M Peters J