R v Pilcher

[2023] NZHC 1547

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2021-041-1118

[2023] NZHC 1547

THE KING

v

BARRY REON PILCHER

Hearing:

20 June 2023

Appearances:

C R Stuart for the Crown

N M Graham for Mr Pilcher

Judgment:

21 June 2023

SENTENCING OF COOKE J

[1]                 Mr Pilcher you appear for sentence today, having been convicted by a jury in the Napier District Court on the following charges:1

(a)nine counts of sexual violation by unlawful sexual connection;2 and

(b)ten counts of sexual conduct with a child under 12.3

1      This is a redacted version of the sentencing for public release.

2      Crimes Act 1961, 128(1)(b) and 128B – maximum sentence 20 years’ imprisonment.

3      Crimes Act, s 132(3) – maximum sentence 10 years’ imprisonment.

R v PILCHER [2023] NZHC 1547 [21 June 2023]

[2]                 As you know your sentencing has been transferred to the High Court because the Crown seeks a sentence of preventive detention, and only the High Court can sentence someone to preventive detention.

[3]To determine the appropriate sentence for you I will address three matters:

(a)First, I will describe the facts of the offending. Sentencing is a public process, so I have to talk about the detail of what happened.

(b)Second, I will assess what your sentence should be if I do not sentence you to preventive detention. That involves two steps:

(i)the first step is to assess a starting point for the offending of the kind you have committed together with any adjustment for any mitigating and aggravating factors for your offending;

(ii)the second step is to engage in any uplifts or discounts from that starting point that reflect factors personal to you.

(c)Finally I will consider whether it is necessary to sentence you to preventive detention given the risks that you pose to the community.

The offending

[4]                 Mr Pilcher, you were found guilty by a jury of sexual offending against two young girls. I will now describe the nature of that offending, but I reiterate to those present that the victims of the offending have name suppression and that their identities should not be publicised.

[5]The following facts are apparent from the jury’s verdicts.

Ms JK

[6]                 The first set of sexual offending is against Ms JK. You sexually offended against her, between 2009 and 2015. During this period, Ms JK was between four and 10 years old.

[7]                 In 2009, when Ms JK was four years’ old and asleep on the couch, she woke up to you putting your hands down her pants and inserting your fingers into her vagina. She cried because of the pain, and you put your hand over her mouth to keep her quiet. You promised to give her a Christmas present if she did not tell anybody about what happened.

[8]                 Later, between 2010 and 2011, your family moved house, and your offending against her escalated. You offended against her whenever you had the opportunity. At various times you touched her genitalia, you inserted your fingers into her vagina, you made her masturbate you, you performed oral sex on her, and you made her perform oral sex on you. Ms JK was only six or seven years old.

[9]                 In 2012, after living away for a short period of time your offending against her intensified further. You offended against her whenever you had the chance, sometimes daily, sometimes, two to four times a week. You touched her vagina, inserted your fingers into her vagina, you made her masturbate and perform oral sex on you, and you did so on her. You also anally penetrated her. She was only eight years old.

[10]             There was a break in your offending in 2014 when Ms JK was placed under her grandmother’s care. But in 2015, when she was on a kapa haka trip to Christchurch, you accompanied the group and stayed at the same motel. You approached Ms JK, then 10 years old, wrapped your arms around her, playing with her hair, put your hands down her pants, under her underwear, and rubbing her genitalia. You said, “do you miss this?”.

Ms OM

[11]             Your second set of sexual offending is against Ms OM. In 2020, you offended against Ms OM twice when she was seven years old. On the first occasion you went into her bed, put your hands under her underwear, and touched her genitalia. On the second occasion Ms OM got into bed after having a bad dream. She fell asleep and woke to you touching her genitalia under her underwear.

[12]             Your offending has had a significant impact on your victims. You have heard Ms JK speak to that, having found the strength to read out her victim impact statement.

Starting point

[13]             As explained I first address what the finite term of imprisonment should be. That is the sentence that will be imposed if I do not sentence you to preventive detention.

[14]             The Court of Appeal decision of R v AM applies.4 That case provides guidance on the application of the sentencing principles under the Sentencing Act, tailored to sexual offending cases such as yours.

[15]             In identifying the appropriate starting point, I consider the following aggravating features are present.

[16]             First, the scale of offending. The offending against Ms JK can be characterised as extended abuse over a prolonged period of time. The offending against Ms OM occurred on two occasions. In both cases, the offending at its lowest seriousness involved touching of the young girls’ genitalia under their clothing. That escalated over time in respect of Ms JK, against whom you committed a broad range of sexual acts, from digital penetration, oral connection with her genitalia, and penile penetration of her mouth and anus. For a period of around two years, you subjected Ms JK to this spectrum of behaviour daily, or at least two to three times per week.

[17]             Second, both of your victims were vulnerable because of their age and your position in relation to them. Your offending against Ms JK begun when she was four, and you were 19, and continued until she was 10 and you were 25. Your offending against Ms OM began when she was six or seven and you were 30 or 31. Their youth and their relationship you made them extremely vulnerable, and your offending was a fundamental breach of the trust that these children were entitled to place in you as an adult, and father figure in their early lives.

[18]             Thirdly, there was harm to the victims that is inherent in this kind of offending. The psychological trauma and impacts, in particular as felt by Ms JK, are likely to be lifelong. The emotional harm to both is significant and enduring.

4      R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.

[19]             Fourthly, although your offending depended on opportunities to offend becoming available it can properly be described as premeditated. Your offending against Ms JK in particular was not opportunistic. There was pre-meditation involved, particularly as its frequency and seriousness increased. You offended when your partner was absent, and compelled her to stay silent through bribery and threats.

[20]             The guideline judgment in R v AM places offending of this kind in bands. Both the Crown, and your counsel, place this offending on the boundary line between rape band three (which involves 12–18 years’ imprisonment) and band four (which involves 16–20 years’ imprisonment). For the Crown, the suggested starting point is in the range of 16 to 17 years’ imprisonment, and your counsel suggests a starting point of 15 to 16 years’ imprisonment.

[21]             The Court in R v AM explained that band three is appropriate for “offending which involves two or more of the factors increasing culpability to a high degree” or “more than three of those factors to a moderate degree”.5 In explaining band four, the Court said that the same sorts of factors as are present in the higher end of rape band three would apply, but that band four will involve “multiple offending over considerable periods of time rather than single instances of rape”.6 They said that “paradigm case of offending within this band is that of repeated rapes of one or more family members over a period of years”.7 The Court referred to the case of R v N — in which the offender forced his step-daughter, aged seven to nine years, to endure rape, sodomy, digital penetration and oral sexual connection over a period of two and a half years — as being in the lower end of band four.8

[22]             I see that case as to be comparable and also see your offending as being at the lower end of band four. You engaged in violations against Ms JK for four years, and there are two victims. The violations fell short of rape, there is at least one instance of anal intercourse disclosed by Ms JK. In these circumstances and given the vulnerability of both victims due to their age and the familial context of the offending,

5      R v AM, above n 4, at [105].

6 At [106].

7 At [109].

8 At [109].

and the other aggravating factors I have described, I would place this offending in the lower end of band four. A starting point of 16 years’ imprisonment is appropriate.

Personal circumstances

[23]             The next step is to look at factors personal to you. That has two aspects. First there can be factors personal to you that mean the starting point should be uplifted. Next there can be personal factors that mean that the starting point should be reduced.

[24]             As to the factors that may increase the starting point you have previous convictions for sexual offending committed when you were 13 and 15 years old. These convictions were for unlawful sexual connection against a male under 12 years old, and indecent assault of a female under 12 years old, occurring in 2001 and 2002 respectively. For this offending you completed a two year residential youth rehabilitation programme in 2005, and later enrolled in the STOP programme, but you failed to complete that programme.

[25]             That kind of prior history of similar offending might, in some circumstances, warrant an increase. But I do not do so for two reasons. First, this offending occurred when you were yourself a very young person, and had your own vulnerabilities. You should not be penalised twice for youth offending of this kind. Secondly, it seems to me that this kind of background is more appropriately considered in the context of protecting the community and accordingly with the minimum period of imprisonment, and potentially in terms of preventive detention. You also have a history of property, driving and firearm offences. But I do not consider that history warrants an uplift either.

[26]             I next consider personal mitigating factors. I must take into account your personal, family, community, and cultural background.9 Before sentencing you today, I have been provided with a number of reports, some of which are directed to the question of preventive detention. I have also been provided with a cultural report under s 27 of the Sentencing Act.

9      Sentencing Act, s 8(i).

[27]             It is apparent from the reports, that you have suffered significant and prolonged sexual abuse yourself from a very young age. You began using solvents at the age of five, and this continued throughout your childhood into your teenage years, leading to drug use. Your sexual offending began an extremely young age. This is against a background of systemic familial dysfunction, characterised by childhood neglect, physical abuse and cultural disconnect. This can be seen as associated with social and cultural depravation of the kind described in the cultural report. While that does not relieve you of personal responsibility, Mr Pilcher, it does help me understand how you have got to the point of where you have offended against the victims. These are credible personal background factors which contribute to impaired choice and diminished moral culpability. To reflect that, I apply a discount of 10 per cent to your sentence.

Minimum period of imprisonment

[28]             You would normally be eligible for parole after serving one third of this sentence,10 unless the Court imposes a minimum period of imprisonment — where the Court is satisfied that such would be necessary to either hold you accountable for the harm done to the victim and the community, to denounce your conduct, deter you, or protect the community from you.11

[29]             The Crown submit that the maximum MPI of two thirds is appropriate, whereas the defence submit that a MPI of approximately half would be appropriate. I agree with the Crown on the basis of accountability for the harm done to the community, and protection of the community, that an MPI closer to two thirds is appropriate in your case.

Summary

[30]             So in summary, if I sentence you to a finite period of imprisonment I would adopt a starting point for your offending of 16 years’ imprisonment. This would be discounted by 10 percent for your personal mitigating factors, to arrive at an end

10     Parole Act 2002, s 84(1).

11     Sentencing Act, s 86(2).

sentence of 14 years and 5 months’ imprisonment, with a minimum period of imprisonment of nine years.

Preventative detention

[31]             I now consider whether you should be subject to a sentence of preventive detention. The Crown submit that the Court should impose a sentence of preventative detention under s 87 of the Sentencing Act.

[32]             A sentence of preventive detention is designed for the protection of a community, rather than to punish you. In the words of s 87(1) of the Act it is to protect the community from those proposing a significant and ongoing risk to the safety of its members.

[33]             The sexual offences for which you are sentenced are all qualifying offences for this sentence. You were also over the qualifying age at the time of the offending. The requirements in s 87(2)(a) and (b) are therefore met. The issue in deciding whether to impose a sentence of preventative detention in this case, is whether the Court is satisfied that you are likely to commit another qualifying sexual offence if released at the expiry of the finite sentence.12 If so satisfied the Court needs to go on to decide whether this sentence is appropriate.13

[34]             The following factors must be considered when the Court is assessing whether you are likely to commit another qualifying sexual offence and in deciding whether to impose that sentence:

(a)any pattern of serious offending disclosed by your history;

(b)the seriousness of the harm to the community caused;

(c)information indicating a tendency to commit such serious offences in the future;

12     Sentencing Act, s 87(2)(c).

13     R v Dittmer [2003] 1 NZLR 41 at [79].

(d)the absence or failure of efforts by you to address the cause or causes of the offending; and

(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[35]I accordingly address each of those factors.

Pattern of offending

[36]             One of the issues that has been raised when assessing your pattern of child sex offending is that, apart from the offending for which you are now being sentenced and the earlier offending that occurred as a young person, there are reports of you having engaged in sexual offending against other children. They arise because of information made available to the experts who have provided reports to the Court about your risk. Some of the information comes from reports made to Oranga Tamariki that are on your case file, and some arise from what you yourself reported to psychologists in association with the programme you engaged in when being sentenced for your first offending. Your counsel has questioned whether the Court should take into account, or put weight on this material, as some of this information was revealed voluntarily as part of your counselling.

[37]             I accept that care needs to be taken in relying on that information because of factors of that kind. Neither has any further offending ever been proved. But it would be wrong not to take it into account when considering the overall pattern of your offending and your risk to the community. Under s 88(3) of the Sentencing Act Parliament has said that the Court may take into account such information. It is also not just one-sided, as the fact that you were open about other child sex offending you had engaged in is an important part of you understanding and addressing the reasons for your offending, and your ability to avoid it in the future.

[38]             There is clearly a pattern of serious child sexual offending arising from all the information:

(a)At six years old, in 1993, you became known to the authorities when you are described as having scratched the outside of a school friend’s vagina.

(b)In 1994, at age seven, you were reported as having been found by a family member having sexual intercourse with a seven-year old girl who was a family friend.

(c)Between 1995 and 2002, when aged between eight and 15, you have said that you sexually abused 15 young people, and engaged consensually with five other children. The victims were males and females, aged between 18 months and 14 years.

(d)In 2001, you were reported to have touched a female three or four year old cousin with your penis. That year, you were convicted of indecent assault of a six year old girl by touching her genitalia and breasts, and sexual violation of an eight year old boy by performing oral sex on him and by engaging in anal intercourse. You entered a residential programme for that offending in 2005, but did not engage with the programmes on release as then required.

(e)Your offending against Ms JK then occurred between 2009 and 2015.

(f)The offending against Ms OM then occurred between 2020 and 2021.

The seriousness of the harm to the community caused by the offending

[39]             Your offending is extremely harmful to the community, in particular to children. Ms JK has explained the severe impacts on her in her victim impact statement read today.

Information indicating a tendency to commit serious offences in future

[40]             When considering whether to impose preventive detention, the Court must consider reports from at least two appropriate health assessors (that is registered

psychologists or registered psychiatrists) about the likelihood of the person committing a further qualifying sexual or violent offence.14 I have received two reports, one from Dr Greg Young, and the other from Ms Kelly Fisher. These reports involve detailed and careful assessments, including the factors relevant to your risk of reoffending, and potential causes of your offending. Both consider you as having a high risk of reoffending.

Absence or failure of efforts by offender to address the cause or causes of offending

[41]             As indicated you completed an intensive two year residential rehabilitation programme in 2005. You opposed the transition plan in May 2005 and did not engage in the STOP programme. You failed to complete or engage in departmental risk assessments in 2007 and 2012.

[42]             Dr Young said that you engaged adequately when you were in rehabilitation but disengaged very rapidly once you left. Ms Fisher has noted that there were responsivity barriers to your engagement in rehabilitation, these include wavering motivation, an increase in denial of your offending, or continued difficulties identifying relevant internal processes that resulted in your offending.

Lengthy determinate sentence is preferable

[43]             Lastly, I note the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.  Whilst  not  expressly referred  to  in   s 87(4), the Court should consider the availability of an Extended Supervision Order and whether it would provide adequate protection for the public.15

[44]             That is an order under s 107I of the Parole Act 2002 that supervises you in the community at the end of your sentence. If subjected to an Extended Supervision Order, you may be placed on effective home detention, and made subject to any of the special conditions in s 15 of the Parole Act 2002, for the remainder of the term of the order, which can be initially up to ten years. The order can require intensive

14     Section 88(1)(b).

15     R v Mist [2005] 2 NZLR 791 (CA) at [100]–[101]; T (CA502/2018) v R [2022] NZCA 83 at [30].

monitoring.16 The conditions can deal with participation in treatment programmes,17 non-association with any particular class of persons,18 prohibitions on entering or remaining in particular areas,19 requirements to submit to electronic monitoring,20 or intensive monitoring.21 An application can also be made for a further order at the end of the first period of the order, so it can last for more than 10 years.

Conclusion on preventive detention

[45]             Given these factors I need to consider whether you are likely to commit a further serious sex offence at the end of the finite sentence, and then stand back and consider your case overall and decide whether preventive detention is the appropriate sentence. Your lawyer submits that there is insufficient evidence to support these conclusions and that insufficient evidence is available to say that community safety can only be protected by imposing preventative detention. You have not engaged in treatment since you were a teenager, and there are a number of treatment areas that you can engage in as an adult that will reduce your risk.

[46]             I am faced with a situation where the appropriate sentence is either a lengthy finite sentence of 14 years and five months’ imprisonment where you would only be released earlier than the full term if considered safe by the Parole Board, coupled with the possibility of you being subject to an Extended Supervision Order for at least    10 years following release, or a sentence of preventive detention which you would be subject to for the remainder of your life, and where you would only be released if assessed as being safe. I consider that the sentence of preventive detention should only be imposed if the statutory requirement is met, and there is really no other way society being adequately protected. As is said in s 87(4)(e) a preference must be given to a finite term of imprisonment if this provides adequate protection for society. But it is not a sentence of last resort, and neither should it be treated as a punishment.22

16     Parole Act 2002, s 107IAC.

17     Sections 107K(1) and 15(3)(b).

18     Section 15(3)(c).

19     Section 15(3)(e).

20     Section 15 (3)(f).

21     Section 15(3)(g).

22     R v C [2003] 1 NZLR 30 (CA) at [16].

[47]             There are a number of factors that strongly suggest that preventive detention is appropriate.

[48]             First you began your offending at a very young age. This involved quite serious offending against other children. That suggests that your sexual offending behaviour became a significant aspect of your personal development. It seems to me that it is possible that it involves entrenched behaviour that will now be quite hard for you to avoid repeating. It may be that it arises from your own sexual abuse as a child, although I note the opinion of Dr Young that care should be taken before reaching that conclusion, and that other motivations may be at play.

[49]             Secondly, your behaviour has been continuous and pervasive. You are now 36 and you are still engaging in the same conduct. When you were first caught you revealed very extensive other offending against other children over significant periods of time. Then after going through a programme as part of the sentence for that offending you have failed to comply with the plans after release, and then have gone on to reoffend. There have been gaps in the offending, but they really are just gaps on what is a continued pattern of offending. These gaps are explained by reduced opportunity. You have reverted to sexual offending against children, and have effectively engaged in that kind of offending continuously since you were yourself a child whenever the opportunity has presented itself. That reinforces the view that your behaviours may be entrenched.

[50]             The third factor is that you have been assessed as a high risk of reoffending under the risk assessment tools that are employed by the experts, and by the two experts who have expressed their opinions. Ms Fisher explains that under the revised ASRS risk assessment tool, which is a static risk assessment tool, you are assessed at level IV(a), which is described as an above average risk. Then under the VRS-SO risk assessment tool, which involves dynamic as well as static risk factors, you are in the well above average risk category. Ms Fisher considers that, overall you are properly considered to be in the well above average risk category for sexual offending. On one measure that assesses your risk of reoffending after five years as just over 40 per cent and at 10 years just over 57 per cent. In Dr Young’s report he comprehensively

considers the risk factors and indicates that the present risk of reoffending is high. The report from the probation officer also assesses your risk as high.

[51]             I also take into account the profound harm that has been occasioned by your offending, and would be involved if you were to further offend. There are two very young victims arising from the current offending, and two such victims of the previous offending for which you were convicted. There are then all the other child victims that were reported, or which you disclosed that you had offended against after your first convictions. This is a very significant number of children who have been no doubt profoundly adversely affected by what you have done to them. The risk to the community if you were permitted to be released without it being established that you were no longer a high risk is significant in my view.

[52]             A sentence of preventive detention could only be avoided in these circumstances if it were recognised that there was a prospect of rehabilitation that could be successfully engaged in prior to your release. A finite sentence could be employed, during which treatment services could be made available to you which, coupled with the possibility of an Extended Supervision Order at the end of your sentence might allow the risk to be adequately addressed. There are some problems with reaching a conclusion that this could provide the necessary protection to the community in your case. When you were first convicted of child sex offending you had the advantage of engaging in such a rehabilitation programme. You were reported as making progress at the time. But you avoided complying with the plans on release, and then reverted to your offending. You have also now been assessed by Dr Young and Ms Fisher. They do not express optimism in terms of the ability to address your likely offending by such programmes, although both recognise that it is a possibility and Dr Young has noted that programmes available as an adult will provide a different opportunity than those available as a teenager. Both identify personality traits which suggest it may be difficult for you to overcome your tendency to engage in sexual offending, and note that you have failed to properly explain why you engaged in the behaviours in a way that would assist rehabilitation. Moreover both have identified that the sexual offending may be associated with a degree of personal insecurity, and arise as a result of stresses that you are placed under. I note that your general lifestyle has involved a lack of a stable environment and other criminality. That suggests an

inability to control your environment sufficiently to engage in meaningful control of your impulses.

[53]             There are, however, two other very important considerations. The first is that you are still relatively young. To persuade authorities that you can be safely released from a sentence of preventive detention is difficult. There would accordingly be a prospect that you would be in prison for the rest of your life when you are now only 36 years of age. That suggests that you should be given an opportunity to demonstrate that you can avoid reoffending. The second factor is that it is usually regarded as very important if someone like yourself, who has a pervasive pattern of child sex offending, has not had an opportunity to engage in rehabilitation. That was the critical factor in the case of RAJ v R where a 33 year old man who had engaged in a similar pattern of child sex offending against relatives had his sentence of preventive detention overturned by the Court of Appeal, including because he had not been given the opportunity to engage in treatment.23 As the Court noted this factor usually weighs in favour of a finite sentence, particularly if the offender has not served a sentence of imprisonment before.24

[54]             Here, of course, you did have a rehabilitation opportunity when you were placed in the intensive two year residential rehabilitation programme in 2005. But you were only 18 years of age when you engaged in that programme, and you did not successfully complete its requirements on release. It is well known that young persons of that age are still psychologically and socially underdeveloped, and at risk of impulsive and immature behaviours. So I do not think that this programme, at the age that you were at, can be described as a comprehensive opportunity for rehabilitation. The reality is that you were just too young at that stage. You have indicated to the report writers, and to me that you are willing to engage in such programmes. You have said in a letter to the Court that you openly admit that you have problems and that you need help to address them to get the help that you need to change your behaviours and not to reoffend. In their reports Dr Young and Ms Fisher have provided recommendations on how the extensive correctional interventions could be implemented to address your level of risk.

23     RAJ v R [2019] NZCA 581.

24     At [66] citing Jenkins v R [2015] NZCA 131 at [43].

[55]             I also consider that the ability to impose an extended supervision order at the end of a finite sentence would provide the necessary protection to the community if you remained a high risk. Such an order can be on a number of conditions, including electronic monitoring. It can initially be for a period of 10 years, but a further order can be made for further periods of 10 years if necessary. So it can involve a number of measures to protect the community if your risk remained high.

[56]             These factors mean that I have decided against imposing the sentence of preventive detention. But only just. Mr Pilcher it is important that you understand how close you have come to receiving the sentence of preventive detention. You will instead be sentenced to a term of imprisonment of 14 years and five months’. Your future is now squarely in your own hands. If you do not address your problems, and your risks of reoffending, there is little prospect of you being released by the Parole Board, and you will potentially serve the full period of 14 years and five months in prison. You will then be over 50 years of age. Even then, if you have failed to address your issues you can be subject to an Extended Supervision Order for at least a further 10 years — that is until you are over 60 years of age. And even then a further order can be made. That is your future unless you take meaningful steps to change.

[57]             Mr Pilcher would you please stand. On your convictions on nine counts of sexual violation by unlawful sexual connection and 10 counts of sexual contact with a child under 12 I sentence you to 14 years and five months’ imprisonment, and impose a minimum period of imprisonment of nine years. For the purpose of your criminal record the sentence of 14 years and five months will be entered on each of the sexual violation charges, and a sentence of seven years will be entered on each of the sexual contact charges, with all terms of imprisonment to be served concurrently. You will also be registered on the child sex offender register.

Cooke J

Solicitors:

Crown Solicitors, Napier

Nicola Graham Law, Napier for Mr Pilcher