R v Reid

[2017] NZHC 2947

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2016-041-144

CRI 2016-041-586 [2017] NZHC 2947

THE QUEEN

v

ALISTER JAMES REID

Hearing:	29 November 2017
Counsel:	J Reilly for Crown S Jeffersen for Defendant
Sentence:	29 November 2017

SENTENCE OF SIMON FRANCE J

[1]      Mr Reid, you appear for sentence following two trials at which you were convicted of numerous offences, including two charges of sexual violation against separate victims.  The District Court transferred your case to the High Court so that the sentence of preventive detention could be considered.

[2]      For the benefit of those present, preventive detention is an alternative to imposing a fixed jail sentence.  Instead, the offender can be kept in jail for as long as it takes for the Parole Board to be satisfied he can be safely allowed back into the

community.  What the law requires is that first I identify what the sentence would be

R v REID [2017] NZHC 2947 [29 November 2017]

if I choose a fixed sentence, and then decide whether that offers enough protection. If not preventive detention will be the outcome.

[3]      To assist with this decision, I have been provided with reports from experts, submissions from the lawyers, and copies of decisions in similar cases.  These have all been considered.  I start with the facts.1

[4]      The offending falls into two distinct time periods:

(a)      the years 2003–2005 where the focus is on how you treated young persons living in your household; and

(b)then 2013 just after you had been released from a lengthy jail term in August.   You have been convicted of assaulting one of the young persons, and raping her; and also of anally raping her male partner.  I note that you continue to deny your offending, but the sentencing proceeds on the basis of the verdicts.

Offending 2003–2005

[5]      There were three young people all living in your household who were the subject of offending by you.   Before outlining that offending, I observe that more generally you created a fearful inappropriate environment where the children were exposed to drugs and drug activity and where you discussed completely inappropriate adult topics with them.

[6]      Victim 1 was 14 years old.   You introduced her to methamphetamine and indeed injected her with the drug.  This became a repeated action on your part.  This was a terrible thing to do.   The reports I have show you are a regular user of methamphetamine and you believe you are in control of it rather than it controlling you.  You express a commitment to keep using it.  This blindness to the harmfulness

of this drug led you to create addicts of these children from their young teenage years.

1      Warning given to media about need for care not to identify victims. Explain to those present why referring to victims as victim 1 etc to maximise privacy.

[7]      Victim 1 was also the subject of numerous assaults during this period. On one occasion her nose was broken.  On another occasion, she was kicked and punched while lying on top of her brother to prevent the same type of assault happening to him. The charges of which you have been convicted are representative charges (which means here that it happened often) of:

(a)       wilfully ill-treating a child;

(b)      administering methamphetamine; and

(c)       injuring with intent to injure.

There is also a single count of injuring with intent to injure.

[8]      Next, there are three convictions concerning the younger brother. They are all violence charges, with one representative count of injuring with intent to injure.

[9]      The third victim was a friend of victim 1 who lived in the household.  She too was subjected to the drug abuse but not the violence.  She considers, and there can be no doubt, that she became addicted as a consequence. The impact on the lives of these young women becoming dependent on methamphetamine at a young age due to your callous administration of the drug was, as one would expect, completely damaging to their subsequent lives.  Both have experienced difficulties as they journey through adulthood.  Cause and effect is sometimes difficult to establish, but you should have no doubt Mr Reid that your actions towards these young women were terrible, and have greatly affected their lives for the worst.

[10]     After this period, you were sentenced to jail.  Victims 2 and 3 thankfully left your life not to return but victim 1 stayed in touch, no doubt still under the influence of the control you had established. And so, we come to August 2013 when you were released from prison and again took over victim 1’s life.

[11]     You pulled victim 1 back into your drug offending, travelling around various parts of the North Island.  By now she had a partner and children, and he was left to look after the children during this time.   You have been convicted of supplying

victim 1 with methamphetamine over this time, but I accept by now it is supply to a consenting adult, albeit one whose dependency you created. The victim says she went with you to keep you away from her partner and children.

[12]     Over this period in late 2013 you resumed assaulting victim 1 on a regular basis.  You caused her injury on occasions.  However, one incident stands out.  You and she were overnighting in a motel as regularly occurred on these drug trips.  You were under the influence of methamphetamine and for reasons not entirely clear decided to sexually assault her.

[13]     You used violence to subdue her, punching her with your fist and restricting her breathing.  You then raped her.  Following that event victim 1 was too scared to tell anyone and you continued to live with her and her partner until your arrest on other matters in December 2013.

[14]     As it happens, unknown to victim 1, her partner had also become a victim. He too was caught up in your drug dealing and on one occasion in November a drug deal went wrong and you became angry. When you and he returned to the house, victim 1 was asleep with the children.    In another room, you and he packaged methamphetamine and at your insistence injected the drug.  Shortly after, you forced the younger man on to the bed, punched him, and then anally raped him. It was a brief incident as the victim was able to break away.  The victim told no one but you used the incident as a means of power and control, reminding him when necessary of what could happen.

Victim impact

[15]     I have touched on the impacts on the victims.  The offending only needs to be described to make plain what these impacts would be. I do not detail them but indicate I have read them and had regard to them.  They are a reminder of what harm you can do, Mr Reid, and it is something I need to remember in deciding what to do today.

A finite sentence?

[16]     As I said the law requires me to first decide what sentence you would normally get and then assess whether given that length of sentence, preventive detention is needed.

[17]     In relation to the two sexual violations I would take a combined figure of

12 years. This reflects the fact that there are two victims, their relationship to you, and the violence you used.  I have little doubt that the anal rape of the young man was an act of anger, retribution and control.   It is an extension of the thuggery that has characterised your life; it is an extension of the desire to control and dominate that the other offending shows.  It illustrates that you will use whatever means you think it takes to achieve your purposes for I am in doubt this was offending driven by an ulterior motive of giving a message and exercising control.

[18]     I then turn to the earlier offending on the young people. I see the administering of methamphetamine and the regular injection of these young teenagers as the most serious. Given the inevitable impact this offending had on two young women, it merits an uplift of three years. There is then the repeated violence for which I add a year.

[19]     As for the other 2013 violence, I do not minimise it but I have already set a figure for the sexual assaults in that period, and for violence when the victim was younger.  I do not consider a further uplift is needed.  That leaves me with a figure of

16 years which I consider to be correct. For that reason, I do not add anything for your past offending.2

[20]     Accordingly, the fixed term of imprisonment that would be imposed, if that is what I do, will be 16 years.

Preventive detention

[21]     Before it is possible to impose a sentence of preventive detention, I must be satisfied that when released at the end of that 16 year sentence, it is likely you would

commit another offence of violence or sexual assault.

2      Only to otherwise then reduce it by a totality adjustment.

[22]     In making this judgment it is necessary to look at how you have acted before.

Prior to 2005 you had twice been sentenced to lengthy jail terms for drug dealing. The second of these was four years in 2001.  I am unsure of your release date but see you were offending again by May 2004 so obviously you were out by then.

[23]     In August 2005, you committed a burglary of a person who collected firearms. You used a child to assist you by going to the door pretending to sell something. The victim was tied up, blindfolded and threatened with a knife.  Firearms were stolen as well as the victim’s money card.  You received a sentence of eight years and were required by the Parole Board to serve all of it.  Obviously, you were not seen as safe to release early.

[24]     You were released because you had to be in August 2013 and I have already described  the  drug  dealing,  violence,  and  sexual  offending  you  committed  in  a four month period and for which you are being sentenced today.  However, that is not all the offending.   During this short period, having lost money on the pokies, you visited a particularly vulnerable person to extort money.   Again, the victim was threatened with a knife as you claimed he owed you $2,000. The victim was taken to a money machine but had no funds. Eventually the victim’s mother was forced to pay over $2,000.  For that offending you have already been sentenced to five and a half years’ imprisonment, which you are presently serving.

[25]     Looking at all this from the view point of likelihood you will offend in the future what can be said is that:

(a)      after your release in 2004, over about a one year period you committed smaller offences (theft and burglary primarily) before then committing a major offence of serious violence;

(b)      you were required to serve all of that sentence;

(c)      in just a four month period between your release at the end of that sentence and your re-arrest, you again dealt in drugs, you committed

assaults, you raped a woman, anally raped a man, and committed another serous offence of kidnap and extortion;

(d)you have continually been in jail since 2000, and the brief periods of release have both resulted in major criminal offending, some of which has had serious consequences on the victims.

[26]   The report prepared by a psychologist identifies you as a high risk of reoffending.   On one of the measures, the psychopathy checklist, your score was amongst the highest possible.

[27]     You were assessed by a psychiatrist who is unwilling to assess future risk but notes a possible or probable link between use of methamphetamine and offending.  In that regard it must then be noted that you remain in complete denial over the impact of the drug, and have been very clear you will continue to use it.

[28]     Based on these matters, and given you will only be 64 at the end of the sentence, I am well satisfied it is likely you will commit a qualifying offence upon release.

[29]     In terms of what is the correct outcome today, it is necessary to consider whether things might change with you.   To date there has been little therapeutic intervention but that is because you have declined the many opportunities:

(a)      in 2010 it was recommended you attend a programme (STURP) aimed at addressing your criminal tendencies but you would not attend;

(b)you were referred in 2011 to a short motivational programme offered by a psychologist but you refused consent;

(c)      following your release in 2013 you were referred for psychological assessment.  You attended one session with a psychologist and gave your consent to participate in an assessment. However, you declined to attend any further sessions, and as we know proceeded to commit this significant offending.

[30]     You have said to one of the present report writers that you would attend a Drug Treatment Unit or a STURP programme (this being the one you said no to in 2010). However, it is noted you did attend a Drug Treatment Unit in 2010 and the assessment then was that you engaged only to the extent needed to be considered as having done the course.

[31]     My assessment is that currently there is little prospect of you engaging in rehabilitation. Further, you remain committed to using the drug that seems most likely to be the trigger for your worst offending. You deny committing almost all the present offending, and this is another matter that significantly affects the chances of rehabilitation. It may be that faced with the prospect of a life in jail you change, but a sentence of preventive detention allows for that. You can still be released if you satisfy the Board that you have changed in your approach.  The liability to recall that comes with a sentence of preventive detention would in those circumstances provide a valuable incentive to maintain any new attitude.

[32]     The issue today is whether the lengthy term I have indicated, plus the prospect of controls beyond that (an ESO), afford enough protection.  At this point I place no weight at all on the utility of community based restrictions – your conduct in late 2013 shows how little regard you would have for any conditions. If you were still the same person, you would no doubt just do whatever you wanted and thought necessary until stopped.

[33]     In my view the most telling matter is your conduct in 2004/5, and then for four months in 2013, following your last two releases from jail.  You immediately went back to offending. You made it clear to the report writers you see the life of a criminal as a career choice that cannot now be undone, and your conduct in those two periods of release reflects that. What is most concerning is the escalation in the nature of your offending in those two windows of opportunity. Prior to 2000, there was serious drug offending but otherwise lots of property and lower level offending. But on both these occasions you have committed serious violent offences, and then in 2013 also sexually violated two adults. I am also concerned by the motivation behind the anal rape of the young man which I consider point to the steps you will go to in order to achieve your

purposes and exercise dominance and control. Currently your prospects of reforming are realistically non-existent.

[34]     Weighing all these factors I am satisfied the safety provided by the sentence of preventive detention is necessary and a finite sentence will not suffice.

Outcome

[35]     On the two sexual violations you are sentenced to preventive detention.   I impose for punishment purposes a term of six years non-parole which is the term I would have imposed on the finite sentence.3

[36]     I need to impose sentences for the other offending:

(a)       wilfully ill-treating a child x 2 – 18 months’;

(b)      administering methamphetamine x 2 – three years’;

(c)       injuring with intent to injure x 5 – one year’;

(d)      male assaults female (punch) – convicted and discharged;

(e)       male assaults female (choking) – one year’; and

(f)       supplying methamphetamine – six months’.

[37]     All  sentences  are  concurrent  with  each  other.    Because  the  sentence  is preventive detention no issue of cumulative sentences arises.

Simon France J

3      This is based on the 12 year figure for the sexual violations, and reflects the fact of two victims.