R v Parker

[2018] NZHC 2035

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-055-662

[2018] NZHC 2035

THE QUEEN

v

CLAUDE DAVID PARKER

Hearing:

10 August 2018

Counsel:

M S Williams for Crown

P T R Heaslip for Defendant

Judgment:

10 August 2018

SENTENCING NOTES OF WHATA J

Solicitors:

Kayes Fletcher Walker (Auckland) for Crown

R v PARKER [2018] NZHC 2035 [10 August 2018]

Introduction

[1]    Mr Parker, you have been found guilty by Judge Moala on one charge of assault with intent to commit sexual violation and one charge of indecent assault. The maximum penalty for the assault with intent to commit sexual violation is 10 years. The maximum penalty for indecent assault is seven years. However, the Crown has sought preventive detention. On that basis, I will first fix a determinate sentence. I will then address whether you should be sentenced to preventive detention.

[2]    Before I move to the substance of my sentencing, I wish to record that when you first appeared for sentence I asked you whether you might be prepared to undergo a programme of rehabilitation prior to commencing your sentence, as participation in that process and your response to it might provide some assistance to me in forming a view as to whether you should be subject to preventive detention. You agreed, and I instructed further reports from the three assessors who have already provided reports about you as to what such a programme might look like. As I will explain later, they identified such a programme.

[3]    Unfortunately, however, I am advised by Corrections that as you are a remand convicted prisoner, you do not meet the criteria for rehabilitation programmes. This effectively precluded the opportunity, expressly envisaged by s 25(1)(d) and (e) of the Sentencing Act 2002, for an adjournment of sentencing to “enable a rehabilitation programme … to be undertaken” and therefore to enable the Court to “take account the offender’s response” to that programme.

[4]    As a Judge sitting in the criminal jurisdiction I am unable to direct Corrections as to their exercise of their powers under the Corrections Act in dealing with such matters as rehabilitation. But the effectiveness of s 25 as a tool for sentencing is undermined by the policy just mentioned. It has implications which extend well beyond the present case. In saying this I mean no criticism of Corrections. Their management task is very complex and large. But, Mr Parker, it means I must sentence you without the full benefit of understanding your response to the rehabilitation recommended by the three assessors.

Facts

[5]The following facts are drawn from Judge Moala’s judgment.

[6]    On the night of the offending, the victim, your flatmate, was left alone with you at your residential address. She decided to go to her bedroom to clean up before her partner came home from work. Not long after she went into her bedroom, you entered the room and pushed her down onto the bed. She landed face-down. You managed to turn her on the bed so she was lying on her back and you got on top of her. She said to you, “What the fuck are you doing?” You responded, “I’m going to fucking rape you, bitch”. She then told you, “Get the fuck off me now or I’m going to fuckin’ tell on you”. Throughout the incident, she repeatedly told you that she would tell on you.

[7]    You used your hands to pull her pants and underwear down to her knees. You then tried to get your fingers into her vagina but you could not because of the way she was moving around on the bed. You used your fingers to try to rub her vagina and tried to push your fingers inside her. At the time, she was holding her thighs together and moving around and trying to get up.

[8]    She again told you to get the ‘F’ off. You licked her face and tried to kiss her. You pulled down her pants and underwear. She could feel your penis on her. You were lying on top of her and tried to push your penis inside her vagina. She kept fighting you off. She crossed her legs together and squeezed her thighs tight to keep her private parts from you. Throughout the incident, she was yelling and screaming at you. You ended up getting off her because she kept yelling at you. You then tried to bribe her with methamphetamine and money. She refused to agree to any bribe from you.

Victim Impact

[9]    Understandably your offending has had a significant emotional impact on your victim, exacerbated by her underlying mental health frailties. I note in this regard, Judge Moala found that the victim was unwell for periods in 2015 and, at the time of the offending, she was under a compulsory treatment order and she was being given

monthly injections for her anti-psychotic medication. She suffers from, among other things, schizophrenia, bipolar disorder, depression, and anxiety.

Personal circumstances

[10]   Mr Parker, I now turn to your personal circumstances. You are 50 years of age, of Ngati Porou. You have over 130 prior convictions, many of them, however, are minor. Two are particularly relevant here:

(a)A 2003 conviction for a rape which took place in 1996; and

(b)A 1997 conviction for kidnapping – relating to abduction for sexual connection.

[11]   I return to this offending later. You also have many non-sexual violence convictions, but none since 1995.

[12]   I have the benefit of a PAC report. It notes that factors contributing to your offending include a sense of entitlement, poor problem-solving, impulsivity and an inability to manage emotions. It observes that the only significant blocks of time you have not offended over the past 32 years is when you have been subject to a sentence of imprisonment. The report concludes that you are at a very high risk of reoffending and that you are a high risk of harm to others.

[13]   I also have five health assessments about you – two by Dr Sharma (a registered psychologist),  two  by  Dr  Goodwin  (a  forensic  psychiatrist),  and  a  report  by Ms Isaacson (a clinical psychologist).   The initial assessments by Dr Sharma and   Dr Goodwin are unhelpful to me because you refused to participate in interviews for the purposes of those reports. I propose, therefore, to focus on the reports which involved your active participation. While these reports are specifically prepared for the purposes of an assessment for preventive detention, they provide useful insights into you and your background.

[14]   You self-report as having been subjected to regular mental and physical abuse as a child. You have a distinct memory of feeling hungry all the time and you felt like

a social outcast at school, recalling regular teasing from peers about your scruffy appearance. You said that your lack of self-worth turned for the worst after you sustained a facial injury while working on a farm at the age of 15. You then joined the Mongrel Mob at the age of 17. You said that your gangster image helped you to have girlfriends. You self-reported having many casual relationships and two long-term partners.

[15]   You became a full patched member of the Mongrel Mob in your 20s but you tried to withdraw from the gang after 20 years as you were sick of all the beatings you would get from other gangs, and the in-house gang beatings.

[16]   Your previous sexual offending is also described in the health assessments. The first incident occurred in 1996. You and an associate abducted a woman and you made comments about having sex with her without her consent. During this time, a dog handler arrived and the victim immediately sought assistance. You were acquitted on a charge of attempted sexual violation but sentenced to three-and-a-half years’ imprisonment on the ground of abducting the victim. The second incident also occurred in 1996, although no conviction was obtained until 2003. You entered the house of the victim while she was alone and asleep. You punched her and you used a knife to threaten her. You raped her.  You were sentenced to 12 years in prison, with  a minimum parole period (on appeal) of six years.

[17]   The mental health assessments examine the risk of reoffending presented by you. All three clinicians reach broadly the same conclusions about your risk profile applying standard static and dynamic assessment tools, concluding (in short) that you present a moderate to high risk of sexual reoffending.

[18]   On the key factors relating to preventive detention, Dr Sharma makes the following observations (which appear to be broadly consistent with Dr Goodwin’s assessment), in summary:

(a)You have a long history of anti-social offending against vulnerable young females with mental health conditions. The sexual offences have

been facilitated by anti-social attitudes for self-control and a sense of entitlement.

(b)Your offending has caused significant emotional distress.

(c)Your offending has been continuous since age 14 and increased in volatility and your motivation for change appears to be poor.

(d)You have not generally engaged in programmes to address your needs.

(e)External containment is the only way in which your risk for reoffending can be managed at this point in time.

[19]Ms Isaacson, however, offers a slightly different view. She notes:

(a)Your skills to withstand negative influences when released are fragile and you quickly gravitated back to an unbalanced lifestyle on release, including substance abuse. While the index offending has demonstrated a capacity for serious offending, a pervasive and persistent pattern of serious offending is not evident.

(b)Your expressed motivation to positively succeed within society is sincere, although your skills to do so are unsophisticated and weak.

(c)In terms of your risk of reoffending, you are assessed as being amongst a group of offenders for whom change and reintegration back into society would be slower and more challenging. It is recommended a combination of natural maturation, development of positive community support, strengthening your connection with cultural identity and reconnecting with your family, together with engagement in specialist Corrections rehabilitation programmes, could support you to realise underlying pro-social potential.

(d)You have not engaged in specialist, intensive treatment to address your risk of sexual recidivism. Ms Isaacson says, within a strength-based

and culturally responsible approach, you are deemed capable of meaningful engagement in the therapeutic context.

(e)The report concludes that you have some potential to realise your underlying cultural and pro-social values and attitude within specialist focused treatment, robust relapse prevention and reintegration planning. Ms Isaacson concludes that a lengthy prison sentence may provide adequate protection of the community.

[20]   As mentioned before, I also now have a combined report of the three assessors. It records that you remain untreated and your risk of sexual recidivism has been assessed within the moderate to high range (by Dr Goodwin and Ms Isaacson) and the high-risk range (by Dr Sharma). The report also records that you were motivated to receive treatment during your previous incarceration, but that it was only available to you shortly before your release and you were reluctant to transfer out of your intended release area. Subsequently they say you failed to develop rapport within your psychological sessions.

[21]   The health assessors agree that you must receive specialist, intensive, culturally responsive treatment to address your risk. They recommend you undertake the Adult Sex Offender Treatment Programme at either Springhill or Waikeria prison, followed by a Drug Treatment Programme, potentially within Te Tirohanga National Programme which provides tikanga based services.

Section 27 report

[22]   I also now have the benefit of a s 27 report prepared by Te Runanganui O Ngati Porou. The report writers note you were happy to speak with them and share your story and whakapapa. The report confirms the observations in the s 88 reports regarding your difficult childhood, and documents the abuse you suffered at the hands of your grandmother. You told the report writer you believe your upbringing is related to your subsequent involvement in gangs. The report also helpfully notes that you remain connected to your Maori identity and that you have tried to engage with your Maoritanga. The report discusses the positive experiences you have had through engagement with Ngati Porou marae.

[23]   You, however, also say that you do not believe you have been supported culturally and requested a ceremony where a tohunga can uplift bad energies. The report also notes that you have some whanau support and they would like to reconnect with you.

[24]The report concludes with the following recommendations:

(a)You would benefit from participating in trauma counselling provided by a specialist from your iwi;

(b)You would benefit from the ceremony which you requested to uplift bad energies; and

(c)You would benefit from a whanau hui to allow people from your iwi to stay connected with you.

Approach to sentencing

[25]   Turning to then my assessment, Mr Parker, I must sentence you in accordance with the purposes and principles of sentencing set out in the Sentencing Act. Particularly (though not exclusively) relevant to you are the purposes of accountability, denunciation and deterrence, protection of the community and your rehabilitation.

[26]   In sentencing you, I must first identify a starting point for your sentence that is comparable to other starting points for offending of a similar kind. I must then consider any personal aggravating or mitigating factors that should bear on your sentence.

[27]   The Crown submits that a starting point in the order of six years would be appropriate. Mr Heaslip suggests a starting point in the order of five years. The difference between them rests on their respective assessments of the aggravating features of your offending. For my part, I find the following factors are aggravating:

(a)You were dealing with a vulnerable person. She was in her home and suffering from mental health conditions that not only made her vulnerable to your predation but they were factors used by you as part of your defence.

(b)The extent of the violation – yours was a persistent, invasive attempted rape which included an indecent assault.

(c)The behaviour after the offending – your attempt at bribery is an aggravating factor.

(d)Harm to the victim – the harm to her because of the offending was and remains significant.

[28]   Counsel have referred me to two cases which are helpful for the purposes of fixing a start point. The first is Pesefea.1 In that case, the offender arranged to be alone with a 14-year-old victim, attempted to rape her but was unable to do so because of her underwear. But, in any event, simulated sexual intercourse until he ejaculated. The starting point there was six years. The second case is R v Tutu and Carter.2 This involved an attempted sexual violation by rape of an intoxicated victim at a party. She was sleeping or unconscious. The starting point was five years in that case. The age of the victim in Pesefea was a particularly aggravating feature, not present here. The combination of factors in your offending, however, places your offending in a higher, more severe category than the Tutu offending. I therefore adopt a starting point of five-and-a-half years.

[29]   In terms of aggravating personal factors, the extent of your prior criminal offending, including your prior sexual violence offending, demands an uplift. The Crown seeks an uplift of nine months. By contrast, Mr Heaslip suggests an uplift of six months. An uplift of six months, or about 10 percent, on the start point is proportionate in my view.

1      Pesefea v R [2016] NZCA 35.

2      R v Tutu and Carter HC Napier CRI-2010-041-000163, 4 February 2011.

[30]   I therefore commence with a starting point of six years. I have considered the indecent assault for the purposes of fixing this start point sentence for the attempted rape, so no separate uplift is required for this offending.

[31]   In terms of personal mitigating factors, both the mental health assessments and s 27 report provide insight into your background. Your upbringing was very difficult, including self-reported physical abuse as a young child. You therefore gravitated to gangs to fill the void left by your whanau. There are regrettably mixed messages in the reports as to your willingness to engage in rehabilitative programmes, whether through correction-based systems or tikanga-based systems. You have not engaged successfully with those programmes or systems in the past. But there is evidence that you have sought out connection to your hapu and iwi when you were younger, and that you sought help in 2004 and 2013.

[32]   Your recent commitment to undergoing rehabilitation in advance of sentence and to reconnecting to your Maoritanga and whanau also suggest at least some preparedness to change. All of this is relevant as it bears on the underlying reasons for your offending and what might be done about it for rehabilitative purposes. I would therefore afford you a five percent discount for these factors, acknowledging that there remains room for hope that you can stem, with help, the risk of reoffending.

[33]   Accordingly, were I to fix a sentence on a determinate basis, I would fix that sentence at five years, eight months. In addition, I would also impose a minimum period of imprisonment of 50 percent for a finite sentence, considering the ongoing risk you pose to the community.

Preventive detention

[34]   I turn to the issue of preventive detention. In considering whether to impose a sentence of preventive detention, I must consider:3

(a)Any pattern of serious offending;

3      Sentencing Act 2002, s 87(4).

(b)The seriousness of the harm to the community caused by the offending;

(c)Information indicating a tendency to commit serious offences in future and the absence of, or failure of, the efforts by the offender to address the cause or causes of the offending;

(d)The principle that a lengthy determinate sentence is preferable if this provides adequate protection to the community.

[35]In terms of these factors, I am satisfied that:

(a)Your present sexual violence offending is part of a pattern of serious offending commencing in 1996. Significantly your time in prison in large part separates the incidents of this type of offending.

(b)The harm caused by your offending is clearly serious.

(c)The overwhelming impression left by the mental health reports is that you represent a substantial risk of sexual violence reoffending.

(d)Your previous attempts at rehabilitation and treatment have, for the most part, failed.

[36]   Balanced against this, Ms Isaacson concludes that considering all available information, you do not present with a pervasive pattern of sexually inappropriate behaviours or attitude. She clearly links lengthy periods of incarceration with an inability to cope and reintegrate with normal society and notes that with targeted culturally appropriate treatment, there is scope for mitigating the risk you present. The s 27 report also suggests that reconnecting to your whanau and Maoritanga may help you address your underlying needs. I am told this could not realistically occur unless a finite sentence was imposed.

[37]   Nevertheless, I have come to the view that, based on the information available to me, the combination of the serious risk presented by you, and your lack of successful engagement with treatment processes to date, means that a cautious approach is

required. In reaching this view, I have also had regard to the fact that your present offending occurred reasonably soon after your release for the rape offending. And I just do not have enough information to be satisfied that the risks presented by you are capable of management or adequate mitigation by way of a finite sentence. Rather, I consider it remains necessary that you demonstrate the capacity for change and preventive detention provides a proper mechanism for ensuring this.

[38]   Mr Parker, I regret that a less punitive response is not available to me. I would have much preferred to sentence you after you had completed a rehabilitative treatment plan so that I could have more surety as to whether you present the type of ongoing risk that preventive detention is designed to address. Unfortunately, however, while the reports identify a potential for change, that potential remains too intangible against the very real pattern of your serious sexual offending.

[39]   I would also add this. I would implore Corrections to reconsider, in your case, their policy of deferring rehabilitative treatment. It seems to me unfair to you and unreasonable that you are not given the opportunity to demonstrate your capacity for change while serving your sentence at the earliest opportunity.

[40]   In any event, on the basis of the foregoing, I impose a sentence of preventive detention. I am satisfied, however, that the statutory five-year minimum period of imprisonment in s 89 of the Sentencing Act is sufficient having regard to all the information available to me, including the insights provided by Ms Isaacson.

Sentence

[41]   Mr Parker, please stand. On the charge of assault with intent to commit sexual violation, I sentence you to preventive detention, with a minimum period of imprisonment of five years. For completeness, I also sentence you to two years’ imprisonment on the indecent assault charge, to be served concurrently.