R v Palmer HC Hamilton CRI-2010-019-5901

[2011] NZHC 983

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-019-5901

THE QUEEN

v

JOSIE DEAN PALMER

Appearances: R B Annandale for the Crown

K L Tustin for the Prisoner

Judgment:      7 April 2011

SENTENCING NOTES OF PRIESTLEY J

Counsel:

R B Annandale, Almao Douch, P O Box 19173, Hamilton 3244. Fax: [phone]

Email: [email protected]

K L Tustin, P O Box 9035, Waikato Mail Centre, Hamilton 3240. Fax: [phone]

Email: [email protected]

R V PALMER HC HAM CRI-2010-019-5901 7 April 2011

[1]      I sentence  you this morning on four counts.   They are indecent assault, burglary, theft, and conversion of a motor vehicle.   They carry, respectively, maximum penalties of seven years, 10 years, three months, and seven years imprisonment.

[2]      Your offending was all related and all took place in or around your victim’s

home in July 2010.

[3]      Within days  you indicated your pending guilty pleas and pleaded guilty, effectively at the earliest available opportunity, on your appearance in the District court.

[4]      The District Court appears to have entered convictions.  Because the Crown sought preventive detention, in the light of the health assessors’ reports the District Court declined jurisdiction.

[5]      For technical reasons relating to s 153A of the Summary Proceedings Act

1957 it is doubtful whether the lower court had jurisdiction to convict.1   Thus, with the agreement of counsel, I reconvict you now on all four charges.

[6]      In terms of the “three strikes” legislation contained in ss 86(A)-86(I) of the

Sentencing Act 2002 the notice of a first warning, which was given to you on 17

August last year when you pleaded guilty to the charge of indecent assault, will need to be re-administered to you today.   The Registrar will do that at the end of my sentencing remarks.

[7]      The real difficulty which sentencing you poses is that if I accede to the

Crown’s request to sentence you to preventive detention under s 87 I must impose a

minimum period of imprisonment of not less than 5 years.2    That minimum period could not possibly be reached by either a finite sentence or a minimum term of imprisonment if I were to sentence you conventionally.  So the focus will have to be on whether preventive detention is the correct sentencing option.

Your offending

[8]      On the evening before your offending you were extremely drunk.  You had consumed 16 premixed drinks.   You and approximately 10 accompanying males gate-crashed your victim’s home.  After a period you all left.

[9]      The victim went out and returned in the early hours of the morning.   She found a window in her home had been jemmied open and items of property stolen. You were not charged with that.  She went to sleep on a mattress on the floor.

[10]     Sometime between 6 am and 9 am you entered the dwelling, which was locked.   That is the burglary.   You removed a set of car keys from the victim’s bedroom and also helped yourself to her mobile phone, a beanie, cigarettes, and a lighter.  That is the theft.  You then lay down on the mattress beside your sleeping victim.   You crawled under the covers and touched her buttocks with your hand. That constitutes the indecent assault.

[11]     Your victim woke up and rolled away.   You pretended to be asleep.   You suggested you had been there for some time.  You left the premises and then got into the  parked  vehicle,  the  keys  of  which  you  had  taken,  and  started  it.    Another occupant of the house confronted you.  You remained in the car seat until the police arrived.  The stolen items were found in your pockets.

[12]     In  terms  of  your  overall  culpability  for  each  of  theft,  car  conversion, burglary, and indecent assault, the offending I have described sits towards the lower end of the scale.

[13]     Your victim, who was 21 at the time, was understandably shocked and angry. She subsequently became concerned about her own safety in her own house, appreciates that matters could have been a lot worse had she not woken up and became anxious and somewhat scared.

Presentence report and personal circumstances

[14]     Leaving aside for the moment your previous convictions, you have really spent most of the last 11 or 12 years in jail or subject to official oversight.  You are

34.  Your childhood was unremarkable, although the health assessors, to whom you gave more detail, saw it as dysfunctional.   You were not brought up by your biological  parents.     You  were  not  abused.     You  have  had  previous  stable relationships.   You have two children in their early or mid teens with whom you have  had  no  contact.    Before  your  current  remand  you  were  employed  as  a scaffolder.

[15]     I have received a letter this morning from Ms Martin, a woman about a year your senior who was in Court here today supporting you.  It would seem that she was in a relationship with you for approximately 12 months.  She has three children.  She had no concern about your attitude or your personality as a person with whom she was living.   She notes that she feels you need more support.   She was obviously concerned that at a time when she was not there you cut loose and went back to alcohol consumption.

[16]     You have a quiet and almost compliant disposition.   Your counsel, whose submissions I found focused and extremely helpful, refers to you as having been “an inmate all your adult life” with no “flight instinct”.   You wait around after your offending to be caught, enter guilty pleas immediately, and seem to re-offend while still subject to a sentence.  You willingly acknowledge your faults and your sexual fantasies.  Ms Tustin refers to you as “institutionalised”.

[17]     You have written a letter which I have read.  You express regret for the terror and trauma you have caused your victim.   You have acknowledged shortcomings and failings.  You hope that you might be given a chance of rehabilitation on a sex offender programme.  You claim to have developed some insight and say you want to be a good man.

Previous offending

[18]     I now turn to your previous offending which is really lying at the heart of my sentence today.

[19]     You do not, compared with so many offenders before the courts, have a long criminal list.  There were drink driving and driving whilst disqualified convictions (totalling four) in 1995 and theft from a motor vehicle in the same year which was met with a supervision sentence.  Those driving offences obviously point to alcohol abuse and general irresponsibility with alcohol ranging back now for 15 or 16 years.

[20]     Things began to unravel as a result of a rape in 1999.  You entered the home of a sleeping woman at night, by unlocking the door through a cat flap.  You had apparently become infatuated with your victim who did not know you.  You kept her under surveillance for about 18 months.   You went into her bedroom.   She was asleep.  You removed your clothes and raped her whilst she was asleep.  It was only in the post-coital phase that she woke up.  You were 22 at the time.

[21]     You were sentenced to 10 years imprisonment.   You pleaded guilty.   The sentence of 10 years was upheld by the Court of Appeal.  The maximum sentence to which you were liable at that stage was one of 25 years imprisonment by virtue of the now repealed Home Invasion legislation.   The impact on your victim was considerable.   You were released on parole.   That release, I am told, occurred in January 2006.   For the next three months you were subjected to back end home detention.   Two days after that home detention  supervision ceased, again when drunk,  and  this  is  in  April  2006,  you  climbed  up  the  outside  of  your  victim’s building, along sills and ledges, and entered her home through an unlocked window. Your victim was a stranger to you.   You entered her bedroom.   She found you

crouching next to her bed staring at her.  You then, after a short discussion left the house.  Half an hour later you entered the house again by climbing along window ledges.  The District Court Judge who sentenced you to 15 months imprisonment, cumulative on your rape sentence, referred to the similarity between the 2006 burglary and your 1999 offending.   He saw that similarity as concerning.   You denied any sexual intent but your counsel accepted the Court could properly draw the inference that the crime you intended, having got into the house, was a serious sexual offence.

[22]     Turning to your current offending, you were released from custody on 25

January 2010.  You were subject to release conditions until 26 July.  The offending took  place  eight  days  before  the  expiration  of  those  release  conditions.    By consuming alcohol you were acting in contravention of your release conditions, for which you have been sentenced to a two month term in the District Court earlier this year.

Finite sentence

[23]     Were I to be sentencing you in a conventional way I would have to have regard to aggravating and mitigating factors.   Aggravating features include your victim’s vulnerability, the home invasion aspect, the obvious planning and premeditation,  and  offending  whilst  subject  to  release  conditions.    Mitigating features, and factors relevant to lower culpability include the lack of violence, the short duration of the indecent assault, and your early guilty pleas.  Obviously, given the similarity to your previous offending there would need to be an uplift.

[24]     In their submissions on this aspect counsel were not be far apart.  I would use the indecent assault as the lead offence.   The Crown sees a start point of approximately two years and nine months to three years three months imprisonment with a substantial two year uplift to reflect your previous criminal history to somewhere around four years three months to five years three months.  Ms Tustin for her part would see the start point as somewhere between three and a half and four and a half years as being appropriate with possibly the end sentence in much the same range.

[25]     So I signal now what my approach to a finite sentence would be.   The appropriate start point to reflect totality would in my view be three and a half years. I would uplift that by six months to reflect the aggravating factor of your offending whilst still subject to pre-release conditions, and uplift by a further 12 months to reflect the similarity between your offending in your 1999 and 2006 convictions.  I would give you some credit for your guilty plea (and without entering into the jurisprudential argument about appropriate discounts for pleas entered before the

Supreme Court judgment in Hessell3) I would probably end up with an end sentence

for the lead charge of indecent assault of four years imprisonment.

[26]     Section 86(2) factors, and in particular the need to protect the community from you, would result in my imposing the full two thirds minimum term of imprisonment which would be an MPI of two years and eight months imprisonment on a four year finite sentence.

[27]     So, by going through this exercise I have demonstrated fairly graphically the chasm which would exist, particularly having regard to your July 2010 culpability, between an MPI of two years and eight months and the minimum five year term which must flow if I impose preventive detention.

Preventive detention

[28]     Two reports have been ordered which I have considered.  Both were written in November 2010.  The first is by Jessica Borg, a registered clinical psychologist with the Department of Corrections in Hamilton.   The second is by Dr Shailesh Kumar, a consultant psychiatrist with the Midland Regional Forensic Psychiatric Service of the Waikato District Health Board.

[29]     A minimum of two reports from health assessors is an essential prerequisite of imposing a preventive detention sentence.

[30]     Both assessors had access to and read all relevant background information including previous probation reports, sentencing notes, police summaries, clinical

3   Hessell v R [2010] NZSC135.

notes and assessments whilst you were in prison.   I note in passing there was a suicide attempt by you in prison in 2000.

[31]     Ms Borg has called into aid a wide variety of assessment tools currently in vogue  with  the Department  of Corrections  which are designed,  from  somewhat different starting points, to assess risk.  These include the RoC*Rol, the Automated Sexual Recidivism Scale (ASRS), Stable 2007, Acute 2007, and the Psychopathy Checklist/Screening Version.

[32]     The  report  writer  assessed  you  as  a  moderate  risk  for  further  general offending within 5 years of release, and a medium to high risk of sexual offending within 10 years of release.

[33]     You were deemed suitable to attend intensive programmes in prison (adult sex offender treatment programme).   Ms Borg pointed to the obvious similarities between  your 1999, 2006 and 2010 offending.   She commented you have used minimal force to achieve your sexual crimes and had fled the scene when confronted. Your polite explanation was that violence went against your sexual fantasies.  You self-reported negative emotions of guilt and remorse when caught.  It was of concern that the offending took place at night time when victims were likely to be asleep and that there was a degree of watching or following victims and a knowledge of where they lived.

[34]     Bizzarely, although one cannot criticise your candour, you informed Ms Borg during one of your interviews that after the first interview you had engaged in sexual fantasies about her.

[35]     Dr Kumar for his part expressed the normal and justified reservations over trying to predict a future risk.   He considered you presented some actuarial risk factors associated with sexual recidivism including what he described as a dysfunctional childhood and your rebellious behaviour.  Alcohol and drugs, as you well know, played a significant role in the past.   Risk factors relating to sexual recidivism  include  your  pre-occupation  with  sex,  your  vulnerability  to  sexually offend when your inhibitions were lowered through alcohol and drugs and your

reported pre-occupation with having sex with strangers.   He noted your sexual offences occurred when you had been in otherwise stable relationships or subject to special conditions and supervision.  Other risk factors relating to sexual offending, however, were absent including deviant practices, offending whilst you were sober, and your general openness and a degree of empathy and concern about your victims.

[36]     Dr Kumar concluded that even though previous psychological counselling seemed to have little effect, it was “possible that the provision of a more intensive sex offender programme through correctional or psychological services may reduce [your] risk of sexual offending”.

Evaluation

[37]     The Crown submits that a finite sentence and imposition of an MPI are inadequate and that preventive detention should be imposed.  Mr Annandale points to the past pattern of your offending, the sinister connotations and patterns noted by Ms Borg including nocturnal offending in a victim’s residence with victims who you were likely to have watched or followed.   There was a pattern of offending and proclivity which really only ceased when you were in custody.  There is a significant risk of harm to the community.

[38]     Counsel submitted it was not so much the gravity of the offending which I needed to consider but rather the focus on protecting the community and the risk that you imposed.  Counsel referred to dicta to that effect in R v Dean.4   Reference was made to R v Wainohu5 and R v Kitching6 where preventive detention was imposed in cases involving indecent assault and burglary.  The circumstances and backgrounds,

however, are somewhat different.

[39]     Ms Tustin for her part pointed out the possible downstream option of an extended supervision order being imposed at the end of a finite sentence.   After

discussion with counsel it seems there is no jurisdiction for me to reflect on that

4   R v Dean CA 172/03 17 December 2004 at [74].

5   R v Wainohu HC Hamilton CRI-2006-019-4772, 16 December 2007 Lang J.

6   R v Kitching HC Auckland CRI-2008-004-12022 7 August 2009 Winkelmann J.

because there would be no jurisdiction for a ESO to be imposed on you.   I note, however, in a finely balanced case, that could tip the balance against preventive detention, although Ms Tustin responsibly accepted that the ESO option was not an alternative to preventive detention where preventive detention was necessary for a deterrent and protective reasons.  The ability to recall, which is what will happen if I impose preventive detention, may well be the best way of managing future risks.

[40]     Ms Tustin submitted that when looked at in its totality, although there are legitimate and real concerns over the likelihood of your re-offending, I cannot be satisfied  that  you  are  likely  to  commit  another  qualifying  offence  given  the inadequate nature of past interventions and your current acknowledgement and insights.  She referred to the fact that there had been no escalation of your offending over the last 11 years when you have been released and no violence deployed.  She submitted to me quite candidly that when you were instructing her today you were almost indifferent if preventive detention was imposed on you and felt you could live with that.  She reminded me that you are now feeling much better in yourself now that you are on new medication.  Finally, Ms Tustin responsibly pointed out to you that other options should perhaps be explored.

[41]     Turing to s 87 there is  no doubt that s 87(2)(a) and  (b) factors, being a qualifying  sexual  offence  and  your  age  are  engaged.    The  issue  for  me  is  the s 87(2)(c)  issue  of  whether  you  are  likely to  commit  another  qualifying  sexual offence on release at the expiration of a sentence.

[42]     Turning to s 87(4) factors, you have already displayed a pattern of serious offending being your proclivity to enter the homes of women who are strangers to you, by night.  The seriousness of that type of harm to the community is self-evident. The health assessors’ reports indicate that there is a medium to high risk or tendency for you to commit that type of offence in the future, although treatment programmes could well assist.  I need say no more on the pattern of your offending.

[43]     The next factor, the serious harm of your offending, I have already dealt with.  There can be little doubt that sexual offending against vulnerable victims in

their  homes  has  an  enormous  impact  on  both  the  victims  and  on  the  wider community.

[44]     I have also considered the subs (c) factor, which is grounded in the main in the health assessor’s report which point to a tendency to commit serious offences in the future.  The accuracy of those predictions is problematic but your past conduct does give legitimate cause for alarm as to what you might do in the future.

[45]     Your re-offending in 2006 and again in 2010 indicate that you have failed to address the causes of your offending in any substantial way.  On any analysis, this repeat and very similar offending points to treatment and self-motivation having failed; risk remaining unchanged; and similar repeat offending against vulnerable strangers in their home as likely.  It is quite apparent from the materials before me that you are compliant with the programmes when you are in prison but that your compliance  falls  away  markedly  once  you  have  been  released  out  into  the community.

[46]     Finally,  turning  to  s 87(4)(e)  which  is  usually  my  preferred  option  in approaching preventive detention cases, a lengthy finite sentence is not a viable option in this case.   The normal finite sentence available is inadequate to curtail community risk.  I consider that a four year finite sentence, coupled with an MPI of two years and eight months is insufficient to provide protection to society?

[47]     On release you will still be in your thirties.   The period of incarceration would be considerably less than the period for which you have been imprisoned (including the 15 month cumulative sentence) prior to your 2010 offending.   You were candid about your fantasies which you entertained last July and candid too that, had your victim not woken up, things could well have got worse.

[48]     Regrettably I consider that, despite your offending being at the lower end of the scale so far as indecent assault is concerned, the pattern of your past offending and your failure to address it run the risk of repetition on your release.  Thus being satisfied that the relevant s 87 features are engaged I still retain a discretion.   I remind myself, as your counsel submitted, that preventive detention is not a device

to get undesirable people off the streets.  But in this case Mr Palmer no other option is available which the Court can have any confidence will work.

[49]     Accordingly  and  in  the  exercise  of  my  discretion  I  intend  to  impose  a sentence of preventive detention.

Result

[50]     Stand up at this point please.

[51]     On the count of indecent assault I impose a sentence of preventive detention. I also, as required by the statute, impose a five year minimum period of imprisonment.    I  am  satisfied,  for  the  purposes  of  s 89(2)(b)  that  that  is  the appropriate minimum term for the purposes of the safety of the community in the light of both your age and the risk posed by you.

[52]     On the charge of burglary I sentence you to two years imprisonment.

[53]     I impose a term of two months imprisonment in respect of the conversion of the motor vehicle.

[54]     All  those terms  of imprisonment  are to  be served  concurrently with  the preventive detention sentence I have imposed..

[55]     It is my strong recommendation to the prison authorities that you be enrolled for an intensive sex offenders programme, and also undergo alcohol and drug rehabilitation courses.   Clearly between 2007 and 2010 programmes failed to help you on your release back into the community so I make the comment that more effort and attention to rehabilitate you is obviously going to be required.

[56]     [Judge gives prisoner statutory first warning].

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Priestley J