R v Neil
[2014] NZHC 2378
•30 September 2014
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-004-1892 [2014] NZHC 2378
THE QUEEN
v
PAUL CHRISTOPHER KEITH NEIL
Charge:
Plea:
Doing an indecent act on a child;
Breach of parole conditions (2)
Guilty
Counsel:
RMA McCoubrey and N Copeland for Crown
E Priest and LL Hughes for PrisonerSentenced:
30 September 2014
SENTENCING NOTES OF BREWER J
Solicitors: Meredith Connell (Auckland) for Crown
Public Defence Service (Auckland) for Prisoner
R v NEIL [2014] NZHC 2378 [30 September 2014]
Introduction
[1] Mr Neil, you appear for sentence on one charge of doing an indecent act on a child aged five years and two charges of breaching your parole conditions. The maximum penalty for the indecent act charge is 10 years’ imprisonment. For the charges of breaching parole, the maximum penalty is one year imprisonment. You pleaded guilty to the indecent act charge on 24 March 2014 and to the charges of breaching parole three weeks earlier.
[2] You are in this Court for sentence because a sentence of preventive detention is possible.
Background
[3] You are already subject to a sentence of preventive detention. You spent
14 years in prison on that sentence, and you were released with conditions on
22 March 2010. On 1 March 2014, four years after your release into the community, you went to the Parnell Swimming Baths. This was a breach of your release conditions. Once at the baths, you changed into your swimming gear and went to the pool area. After a while you moved to the children’s pool area and sat in the fountain pool. You sat under and behind the pool’s waterfall, watched the children playing in the pool and chatted with them.
[4] According to your account, you became sexually aroused by looking at teenage girls. You noticed the victim, a five year old boy, had become separated from his family and was alone in the pool. You reached out to the victim, who apparently climbed over you as you sat in the pool, and grabbed his hand, placing it on your exposed and erect penis. The victim pulled away from your hand and ran to his father and told him what you had done. The victim’s father alerted pool staff who called the Police.
Victim impact statement
[5] There is a victim impact statement from the victim’s father. He says that,
thankfully, it does not appear the victim has suffered significant and ongoing
emotional harm. The father states that the biggest cost is the impact on him as a parent and his parenting of his children. He is more aware of the danger presented by strangers and has responded accordingly. In other words, an innocence has been lost.
Previous conviction history
[6] You are 45 years old and have a moderately extensive criminal conviction history. You have 31 previous convictions dating back to 1986 when you were
18 years old. The majority of convictions are for dishonesty offences. However, in
1991 you were convicted on two counts of indecently assaulting a female under 12. Four years later, you were sentenced to preventive detention following three further convictions for indecently assaulting a female under 12 and two convictions of unlawful sexual connection with a female under 12.1
Pre-sentence report
[7] The pre-sentence report records that while imprisoned you received treatment from psychologists and successfully completed the Te Piriti Special Treatment Unit Program, and attended relapse prevention maintenance groups run by Te Piriti staff.
[8] During your release period, and prior to the current offending, you complied well with your community based sentence conditions. Overall, your life was well structured. You were living alone in an apartment in Auckland City but had the support of your mother and other support persons. You were employed as a car groomer for three years, but you became increasingly bored with the work and unsure what to do next.
[9] You stated that in the period leading up to this offending you suffered from anxiety and depression. You admit “slipping up” and withdrawing from the help provided by your support people. You started visiting men’s toilets which, according to what you told the clinical psychologists, was for the purpose of obtaining sexual favours. You deny having any premeditation to commit this current offending, stating that it was impulsive. The report writer states that you presented as
remorseful for your actions and as motivated and willing to attend further relapse prevention programmes to assist you in reducing your risk of further offending.
[10] I have read the quite lengthy letter written by you dated 23 April 2014. It does seem to disclose genuine insight by you into the seriousness of your offending. You are aware you put yourself in a high risk situation where self-control would be difficult. You are glad you are out of the community and you express a desire to get back into Te Piriti and its sister unit as soon as possible to be in a safer environment and in order to engage in therapy.
The appropriate sentence
[11] There is no doubt that preventive detention is a sentencing option for you today. The Crown submits it is the option I should adopt.
[12] The approach I will take to your sentencing is to, first, consider what finite sentence would be appropriate for your offending and then look to see if, instead, a sentence of preventive detention should be imposed.
[13] I am not going to repeat what the Crown’s lawyer and your lawyer have submitted should be the appropriate sentence. In addition to what they have said here in Court today, each has filed thorough written submissions which I have read and I take into account. I am not going to go through the cases to which they referred me in their written submissions. I will note them in the record of this sentence,2 but I know that what is of importance to you is the outcome.
[14] In my view, a starting point of 18 months’ imprisonment should be imposed on the lead charge of doing an indecent act on a child. I take into account that while the indecent act occurred only once and briefly, it was in a public place and while
your victim was separated from parental supervision. Further, even if the offending
2 R v C [2003] 1 NZLR 30 (CA); R v Greathead [2013] NZHC 2148; R v Parahi [2005] 3 NZLR
356; R v Tepania [2014] NZHC 2230; R v Miller CA409/94 22 May 1995; R v Gray HC Invercargill CRI-2005-025-507 6 October 2005; R v Keen HC Auckland CRI-2005-029-1001
22 November 2005; R v Mackrell (1998) 16 CRNZ 1; T v R [2013] NZCA 497; R v Kitching HC Auckland CRI-2008-004-12022, 7 August 2009; R v Rowe CA385/04 14 March 2005; R v Thorpe [2012] NZHC 229; Kennedy v R [2011] NZCA 569; Shaw v R [2014] NZCA 322; Stevens v Police HC Hamilton CRI-2007-419-133 11 December 2007; R v Leitch [1998] 1
NZLR 420.
was not specifically premeditated, you went to the children’s area deliberately and
deliberately put yourself in a high risk situation.
[15] There must be an uplift to reflect your previous serious sexual offending and to take account of the fact that the offending was committed whilst you were on strict parole conditions. I will incorporate in the uplift your blameworthiness for the breach of parole conditions charges. The uplift will be 18 months’ imprisonment, taking the starting point to three years’ imprisonment.
[16] Your pre-sentence report, risk assessment reports and the letter you wrote to the Court all indicate you are remorseful for your actions. I acknowledge your remorse, but I do not consider it, in the circumstances, sufficient to justify a discount on your sentence.
[17] Since your recall to prison, you have served just over six months. Normally, time spent in prison on remand prior to sentence is automatically credited against the sentence imposed. But that is not the case when a person is recalled to continue serving an existing sentence. I need to make allowance for this to avoid an element
of double counting. Not a one-for-one credit3 because there has to be accountability
for offending while on parole, and the recall is due to breach of conduct not because it is a punishment. I will allow two months, taking the starting point to two years
10 months.
[18] You are, however, entitled to the full discount available for your pleas of guilty. That discount is 25 per cent. This reduces your sentence, in the round, to two years two months’ imprisonment.
[19] Standing back and looking at the totality of your offending, I consider this sentence is a proper response to what you did.
[20] I consider that I must impose a minimum period of imprisonment. Normally, you would be eligible for consideration of parole having served one-third of your sentence. Given the circumstances of your offending, and your history, I think this
would be insufficient to meet the sentencing purposes of accountability, denunciation, deterrence, and community protection. The last purpose is, in your case, the primary one. The opinions of the health assessors as to your risk of further offending are the same. Both put you at a high risk of reoffending in a similar manner. I am quite satisfied having read all the background material that those opinions are correct. I, therefore, impose the maximum minimum period of imprisonment available, which is 17 months.
[21] That brings me to whether a sentence of preventive detention is more appropriate than the finite sentence of two years two months’ imprisonment with a minimum period of imprisonment of 17 months.
[22] There is a balance to be made here. It is between a sentence which fairly reflects the nature and seriousness of your offending and one which provides adequately for the protection of the community.
[23] On the one hand, you had been out of prison for four years before you offended again, and the offending was at the lower end of seriousness. You have insight into your offending and you certainly do not attempt to justify yourself. On the other hand, you are at a high risk of reoffending despite the rehabilitative programmes you undertook in prison.
[24] I have decided not to impose a further sentence of preventive detention. If I were to do so, there would be an automatic minimum period of imprisonment of five years. That would be a disproportionate response to the gravity of your offending in this instance. Further, you are already subject to a sentence of preventive detention. The Parole authorities have the ability to require you to continue serving that sentence until they are satisfied you no longer pose a risk to the community. A
second sentence of preventive detention is not required to achieve that result.4
[25] As the Crown has pointed out, a decision not to impose a second sentence of preventive detention cannot be driven solely by the lack of utility of a second sentence. I am required to fix the appropriate sentence for your offending
irrespective of any other sentence imposed. I have taken the view that because you were offence-free for four years, because the gravity of your offending on this occasion is at the lower end of seriousness and because of my conclusion that five years’ minimum period of imprisonment is too long, then I can emphasise the principle that a lengthy determinate sentence is preferable where this provides adequate protection for society. In your case it does, because you are subject already to a sentence of preventive detention.
Sentence
[26] On the charge of doing an indecent act on a child aged five years, I sentence you to two years two months’ imprisonment with a minimum period of imprisonment of 17 months.
[27] On each of the two charges of breaching your parole conditions, I sentence
you to six months’ imprisonment.
[28] All these sentences are to be served concurrently with each other.
Brewer J