R v Nichol

[2018] NZHC 2739

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2015-004-13170

[2018] NZHC 2739

THE QUEEN

v

KEVIN NICHOL

Hearing:	23 October 2018
Appearances:	MB Smith for Crown G Anson for Defendant
Sentence:	23 October 2018

SENTENCING NOTES OF TOOGOOD J

R v NICHOL [2018] NZHC 2739 [23 October 2018]

Introduction

[1]    Kevin James Nichol, you appear for sentence on seven charges of indecent assault on a child,1 having pleaded guilty following your acceptance of a sentence indication given to you on 6 July 2018. On the basis that the Crown does not offer any evidence on charge 5 in the Charge  List,  I discharge  you  on that charge under s 147 of the Criminal Procedure Act 2011.

The background facts

[2]    The charges on which you are to be sentenced spread over a period of five- and-a-half months in 2012, and involve five separate occasions. The three complainants are all related and they were aged nine or ten years old at the time of the offending. The circumstances were that you groomed the three young boys by offering them sweets, money and food. There is also a suggestion that alcohol may have been involved and that one boy, at least, was given a personal Play Station console. On more than one occasion through the latter part of 2012, you accepted responsibility for looking after the complainants overnight after arrangements were made with their caregiver.

[3]    On the first incident of offending, you masturbated the younger of the complainants by handling his penis. You tore off the boy’s t-shirt, pinned him down and simulated intercourse by rubbing your penis against his chest and stomach. You also kissed the boy on the lips and put your tongue in his mouth. The boy described the incident as your “treating him like his girlfriend”. That offending gives rise to three of the seven charges.

[4]    The second incident involved you taking down the pants of a sleeping boy, and attempting anal intercourse. Contact between the boy’s anus and your penis was made but no penetration occurred. The third incident involved touching the complainant’s buttocks and crotch over the top of pyjamas that he was wearing.

1      Crimes Act 1961: s 132(3): maximum penalty of ten years’ imprisonment.

[5]    The fourth incident again involved you pulling down the pants of a sleeping boy and penetrating the boy’s buttocks with your penis close to the anal entry. Later that night the boy suffered some discomfort which lasted several days. The fifth incident involved you pinning the complainant against the side of a couch and wall with some force, and there was again penile and anal contact although without penetration.

The impact on the victims

[6]    Your victims are now 13 to 15 years old. Needless to say, they would like to put you and your offending behind them; but long-term emotional disability to the victims is inherent in offending of this kind,2 and this case is no different. Your three victims have suffered, and continue to suffer, psychological harm because of your abuse and two of them require continuing counselling. It is likely that all three will continue to suffer well into adulthood as a result of what you did to them.

Purposes and principles of sentencing

[7]    In sentencing you, I must impose a sentence on you that holds you accountable for the harm done to the victims of your offending and that promotes in you a sense of responsibility for, and acknowledgement of, that harm.3 The sentence must be adequate to denounce your conduct;4 to deter you and others from committing this type of offence;5 and to protect the community.6

[8]    Bearing in mind the need for consistency in sentencing, it is necessary for the Court to take into account the seriousness of the type of offence and the gravity of your offending.7    I must also have regard to the sentencing purpose of assisting your

2      R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [44]. The Court of Appeal notes the importance of psychological and other non-physical harm. Although this guideline judgment is for unlawful sexual connection, I consider that such harm is inherent in indecent acts to young children.

3      Sentencing Act 2002, s 7(1)(b).

4      Section 7(1)(e).

5      Section 7(1)(f).

6      Section 7(1)(g).

7      Section 8(a) and (b).

rehabilitation and reintegration,8 and impose the least restrictive outcome that is appropriate in the circumstances.9

Approach to assessment of appropriate sentencing

[9]    Mr Nichol, I will follow the standard three-stage approach that I used during your sentence indication.10 This means I will first explain the starting point; I will then make any necessary adjustments for personal aggravating or mitigating factors and, finally, I will apply a discount for your guilty plea.

Starting point

[10]   In my sentence indication, I recorded the view that I take the last of the offending as the lead offence and regard it as being among the most serious kind of indecent assault. I note six aggravating factors in your offending that led me to that conclusion:

(a)The use of force and overpowering your victim.

(b)Contact between penis and anus, which falls just short of unlawful sexual connection.

(c)The vulnerability of the victims;11 not only was one victim asleep at the time, but there was also a significant age disparity between your victims and you. You would have been aged around 62 years old and, as I have said, the victims were only nine or ten.

(d)There is a significant degree of premeditation and grooming.12

8      Section 7(1)(h).

9      Section 8(g).

10     R v Taueki [2005] 3 NZLR 372 (CA) and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

11     Sentencing Act 2002, s 9(1)(g) and R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [42].

12     Section 9(1)(i) and R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [37].

(e)A breach of trust.13 The victim’s caregiver, however unwisely, having entrusted you with the care of your victim and you assumed, therefore, some responsibility.

(f)Finally, there is the harm and effect to the victim which is inherent in offending of this kind.

[11]   There are no mitigating features of your offending and taking into account the aggravating features set out, I consider the gravity of your offending, for that one offence, justifies a starting point of eight-and-a-half years’ imprisonment out of a maximum of ten years.

[12]   I consider there should be a further uplift of three years to reflect the totality of your offending; all of which reflects several, if not all, of those aggravating factors I have already mentioned. That brings the total starting point to one of 11 and a half years’ imprisonment.

Personal matters

Aggravating factors

[13]   It is significant that you have a number of previous convictions which include convictions for sexual offending. Your history highlights a pervasive sexual attraction towards younger males; children. One previous conviction involved at least one of the complainants in this case, but other child complainants and adults also. Your name and details have been placed on the Child Sex Offender Register and also on the Victims Notification Register (VNR). You were convicted and sentenced last year, in December 2017, to three years’ imprisonment for indecent assaults committed in 2015 and 2016, and you are still serving that sentence.

[14]   I consider a further uplift of six months is necessary to recognise the extra need for deterrence in your case because of your criminal history.14 It is a long history of

13     Sentencing Act 2002 s 9(1)(f); R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [50]; and Anson v R [2014] NZCA 135.

14     Section 9(1)(j).

offending of this kind. In imposing an uplift of six months for your prior offending, I take into account that the sentence imposed will be served cumulatively on the 2017 sentence which ends on 22 December 2018. This uplift means that the finite sentence is one of 12 years’ imprisonment.

Mitigating factors

[15]   At the time of the sentence indication the Court was not in a position to assess personal mitigating factors which might warrant a reduction from the starting point.  I have since had the benefit of the Probation Service’s provision of advice to the Court and the Parole Assessment Report.

[16]   Mr Anson has submitted, on your behalf, that the personal mitigating factors which might be taken into account are your age and health issues, he also touches on expressions of remorse. I acknowledge that at your age a sentence of imprisonment is likely to be more difficult than for a younger offender. I acknowledge also that you have had a head injury and other health issues which make imprisonment more difficult for you than for others. I consider, however, that the allowance that I indicated I would give, and I am prepared to give, for your guilty pleas is a generous one considering the authorities; and in those circumstances, I do not consider it appropriate to make any further allowance on account of the matters Mr Anson has quite properly drawn to my attention. So far as remorse is concerned I am not satisfied that an expression of remorse of the kind that you have offered is sufficient, and it seems tempered by the fact that you still demonstrate lack of insight into your offending and, in particular, the effect of your offending on your victims.

[17]   The Provision of Advice to the Court report refers to your limited remorse and notes that you are in denial about the offending, stating that some of the offending was consensual. It describes you as attempting to shift blame to your victims and that you feel as though you are a victim yourself.

[18]   Dr Sharma’s report has noted that you say you were a victim of sexual abuse around the age of 12. That is described as arguably blurring boundaries between appropriate and inappropriate behaviour and leading to a distorted perception of others’ sexual interest in you. Dr Sharma describes you going on to re-enact your own

victimisation. I am prepared to take that into account to a degree, but you knew full- well what you were doing, that it was wrong and, of all people, you should have known the effect it was likely to have on these boys.

Guilty plea discount

[19]   You were due to stand trial in July 2018. On the eve of the trial you sought and were granted a sentence indication, which you accepted. Notwithstanding the lateness of your plea, I accepted that the discount should be more than nominal because your pleas meant that you spared the victims from giving evidence at your trial, which would have been a seriously traumatic experience for them. I have noted that the more serious allegations against you were not pursued in response to your pleas of guilty, but I determined that a discount of around 15 per cent is appropriate on account of your pleas. As I have said, that is a generous allowance and it results in an end sentence of ten years’ imprisonment.

Preventive detention

[20]   There remains the question of whether a sentence of preventive detention would be appropriate. I have indicated to you, through Mr Anson this morning, that I do not intend to impose that type of sentence and I need to explain why. Before a sentence of preventive detention is imposed a Court must be satisfied that you would be likely to commit another “qualifying sexual offence” once you are released from prison at the end of the finite sentence.15 That is always a difficult assessment for the Court to make; and two qualified health assessors, who provided me with reports to help me with this task, similarly find the assessment difficult. Their opinion is that if you were released from custody immediately you represent a high risk of committing further serious sexual offences; but they have the difficulty, as I do, of being able to assess the risk you pose if you receive appropriate rehabilitative treatment.

[21]   The Sentencing Act 2002 sets out a number of factors that I am obliged to take into account in determining whether or not a sentence of preventive detention is

15     Section 87(2). The other two factors are not in contention: Mr Nichol is over 18 years of age, and he has committed a qualifying sexual offence (indecent assault).

appropriate, and I have considered all of them.16 There is undoubtedly a pattern of serious offending in your history and so far as the harm to the community is concerned, the abuse of vulnerable members affects not only the victims themselves but also the community as a whole. One factor is information which indicates a tendency on your part to commit serious offences in the future, and this factor is key to the decision I have to make. Dr Duggal is a forensic psychiatrist; in his view, you would be in the high-risk category for reoffending if released into the community now but, as I have said, he is unable to give a clear view as to the effect of rehabilitative treatment on you.

[22]   Dr Duggal notes that your risk of sexual re-offending beyond release from prison has the potential to be diminished by rehabilitative activities. In the past, you have not engaged in such because you have continued to deny your offending, and particularly because of time constraints nearing the end of one of your sentences. There is some hope in the Parole Assessment Report which describes you as being motivated to attend a Child Sex Offender Treatment Programme. Although one might question your motives, that suggests that you retain a lack of insight into your offending; but that is what you would derive if you undertake treatment positively. The important point at this stage is that you appear to be willing to engage.

[23]   I have also been assisted by the report of Dr Sharma, a registered clinical psychologist, who is of the opinion that you have a moderate to high risk of sexual reoffending and because your current offences occurred after you were 60, there is no evidence that your advancing age is a moderating factor. I understand, however, that your medical condition may have that effect.

[24]   I give weight also to the principle that a lengthy finite sentence is preferable if this provides adequate protection for society. If I sentence you to a finite sentence, as I propose to do, it is likely that you will be subject to an extended supervision order (ESO) if the Chief Executive of the Department of Corrections applies for one before your release. This would allow the Parole Board to impose special conditions on you when you are released from prison, including GPS monitoring for over seven years

16     Section 87(4).

past your statutory release date.17 Included in the order would be a condition to attend Safe Network which is designed to prevent a relapse into offending. You have already been subject to such an order but it is currently suspended due to your remand in custody. An ESO can provide real comfort that a high-risk offender will be properly monitored to reduce the risk of further offending.

[25]   I am mindful also, as I have said, that a ten-year sentence would be imposed cumulatively on the current sentence. Unless you are rehabilitated to the point where the Parole Board is satisfied that you no longer pose a threat to community safety, you will serve that sentence in full. The sentence expiry date for that cumulative sentence would be when you are about 78 years old. That is a factor, combined with the likelihood of an ESO being imposed, that leads me to believe that the protection of the community can be managed sufficiently to make a finite sentence realistic. Those are the reasons, therefore, I have decided that it would not be appropriate to sentence you to preventive detention without giving the appropriate rehabilitative programmes, previously untested, an opportunity to work. I am satisfied, therefore, that preventive detention would be an unjust sentence and that a finite sentence of the length as indicated is sufficient to protect the community from you.

Minimum period of imprisonment

[26]   If an offender receives a determinate sentence of imprisonment of more than two years, the Court may order that the offender serve a minimum period of imprisonment, which is a minimum period no longer than the one-third of the length of the sentence that is the default period under the Parole Act 2002,18 by which date you would be at least eligible for parole. The Court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum is insufficient either to hold you accountable for the harm done, denounce your conduct, to deter you and others, or protect the community.19

[27]   Your offending is serious. You have previous convictions for offences of this type which indicate a special need to protect the community from you. Therefore, as

17     Section 107P(1) Parole Act 2002.

18     Sentencing Act 2002, s 86(1).

19     Section 86(2).

I indicated to you in July, I intend to impose a minimum period of imprisonment of five years.

Sentence

[28]Please stand, Mr Nichols.

[29]   On each of the charges of indecent assault on a child, I sentence you to ten years’ imprisonment, to be served cumulatively upon your current sentence, with a minimum period of imprisonment of five years.

[30]   Because of the nature of your offending and the timing of it you come within the three strikes regime and I am obliged to give you the warning I now give you. Given your convictions for indecent assault on children, I am going to give you a warning about the consequence of another serious violence conviction. These consequences will be set out in writing and a notice to be given to you, and Mr Anson will assist you to understand them. If you are convicted of any serious violent offences other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release. If you are convicted of murder after this warning then you must be sentenced to life imprisonment, that sentence to be served without parole unless it would be manifestly unjust, and in that event the Judge must sentence you to a minimum period of imprisonment.

[31]Please stand down.

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

Toogood J