R v S

[2013] NZHC 1572

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

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF PRISONER PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2012-083-1009 [2013] NZHC 1572

THE QUEEN

V

S

Counsel:                  L C Rowe for Crown

D M Goodlet for Prisoner

Sentencing:              27 June 2013

SENTENCING NOTES OF WILLIAMS J

[1]      S, it is my task to sentence you on eight counts of sexual conduct with a child under 12, one count of rape, and five counts of attempted sexual violation, being attempted rape and attempted digital penetration of a child under 12.

[2]      Those charges relate to three child victims.  You pleaded guilty to all counts and your sentencing has been transferred to this court in light of the possibility that you may face a further sentence of preventive detention.

[3]      Sentencing for you is complicated by the fact that you are already serving a sentence  of  preventive  detention  as  a  result  of  separate  sexual  offending  that

occurred during the same time period to which these current charges relate.

R v S [2013] NZHC 1572 [27 June 2013]

[4]      That sentence included a minimum period of imprisonment of seven years. You will be eligible for parole in relation to those matters on 13 December next year.

[5]      The Crown argues that a second sentence of preventive detention should be imposed – suggesting essentially that if preventive detention was appropriate for your previous offending, it must also be necessary for this offending because the offending was worse.  Although, in a later submission from Mr Rowe that position was somewhat modified.

[6]      In any event, your lawyer says that the focus should be on the appropriate minimum period of imprisonment  – effectively arguing that the current charges should be sentenced – or resentenced – on a totality basis in combination with your sentence for the offending that you are currently in prison for.

[7]      Your first victim was a girl.  She suffered under your offending from the ages of six to 10. You met the then partner of her mother. You befriended her mother and gained the mother’s trust.   You carefully wove your way into their lives.   You behaved sexually towards that child from an early stage, stroking her inappropriately, having her place her hand in the area of your penis over your clothing, touching her in her genital area.  Then you graduated over time to more serious sexual conduct with this particular victim – further touching, attempts to kiss and then this lead count of rape.

[8]      The second victim was also a girl – a child of a person you met through the first victim’s mother.  She was also between six and 10 when you offended against her.   Once again, your MO was to gain the trust of the parents and eventually because her mother worked on nightshift, you were actually given occasional care of this child.

[9]      So  when  you  had  the  child  in  your  care,  your  offending  began.    You repeatedly tried to penetrate the victim’s vagina with your finger and with your penis, but each time you were unsuccessful.  You touched her around her vagina and on her breasts.  There were four separate attempted rapes and one attempted digital violation that were identified in respect of that particular victim.

[10]     The third victim – a boy – was abused by you when he was between six and eight years old.  His mother was also known to the first victim’s mother.  Once again, you won the trust of the mother.   She let you stay as a boarder oblivious to the danger you represented to her son.  It was while she was at work that you did what you did.  You attempted to get him to perform oral sex on you.  You had him lie down on the bed and then you according to the summary of facts “dry humped” him.

[11]     As  you  know,  the  damage  you  inflicted  on  these  young  children  was traumatic for them and will stay with them for the rest of their lives.  One of the girls speaks of self-harming, including attempting suicide.   The victims no longer trust men.  They have no confidence or self-esteem.  S, you did this to them and that is what you need to understand.  The boy says he is trying to forget and would rather not have to remember it at all.  These victims bottle these terrible experiences up and try to  suppress  them,  but  they always  surface  again  almost  always  as  negative behaviour of some kind or another, unless and until they are dealt with through counselling and healing.  Sometimes this can take years S, and you caused this.

[12]     But the victims are not just the three children that you offended against. Their mothers are also traumatised.  Their families are traumatised.  The parents of course blame themselves for not seeing you coming as they say.  They are afraid of leaving their children alone.   The circle of people – good people – that you have damaged for your own personal gratification is wide S.

[13]     You are 50 years old and you have a long and sad criminal history.   The important  offending in  that  history for my purposes relates  to  sexual  offending against other victims. At the same time you were committing these crimes for which I  have  to  sentence  you  today,  you  were  also  committing  crimes  against  other children.

[14]     In 2008 as I have said, you pleaded guilty to offending against your son who was aged between nine and 11 at the time, and a six year old boy whose mother you befriended.

[15]     You have also been sentenced to sexual offending on earlier occasions.   In

1992 you were imprisoned for sexual violation of your stepson and you served a

15 month sentence for that.   In 1996 sexual offending against four victims:   your step-children and two of their friends led to you receiving a 10 year prison sentence.

[16]     So your current offending sits within a long history of this kind of sexual offending against  children.    Indeed  in  your interview with  the psychiatrist,  you confirmed  that  you  had  had  these  ideas  since  you  were  quite  young,  22.    As Dr Lehaney says, you have consistently sought out opportunities to offend against children, you have offended against those children repeatedly, and you have only stopped when you have been caught.  You have served long sentences, but you have begun reoffending within months of release.

[17]     Your own background is, as is so often the case, as damaged as the damage you inflicted on your own victims.  Sexual abuse at home at the hands of an older family  member,  raped  by  a  family  friend,  and  abused  at  a  boys’ home.   Your offending and your traumatised childhood are obviously connected S.  You have a long history of mental health issues – admissions to psychiatric facilities, diagnosis of depression, bipolar mood disorder, anti-social and borderline personality disorder traits and you have a history of drug dependency.  You are, in a sense, a mirror of your victims. You are, in a sense, yourself a victim.

[18]     Before I address the question of preventive detention, I must determine a finite sentence.  I turn to that question now.

[19]     The lead offence in this case is the single count of rape of your first victim although in my mind that is followed closely by the multiple attempted rapes of the second victim.

[20]     In setting a starting point, factors are the age and vulnerability of the victim – here this is obviously a very significant factor;   the trust you were given by her mother  in  giving  you  responsibility  for  her;    the  harm  that  you  caused  both physically and psychologically – long term harm that I have already discussed;  and

the scale of the offending – the fact that it related to calculating behaviour covering a number of years culminating in the rape charge.

[21]     In my view a starting point of 15 years is appropriate.1

[22]     I must now consider the totality of your offending.   I acknowledge that a number of the factors I have pointed to refer to, the lead offence in this wider context, so I will be careful not to double count.   But some uplift is justified, particularly to take proper account of the attempted sexual violation of the second victim, who suffered both physically as she said in her victim impact statement and psychologically from the harm of your offending.  I must also consider an uplift for previous contemporaneous offending against other victims.   Overall I consider an uplift of two years for these factors is justified, bringing us to a starting point of

17 years.

[23]     You pleaded guilty – though not at the earliest opportunity.  A discount of

20 per cent is appropriate for that.  You have also expressed remorse and, for what it is worth, I believe there is a significant element of genuineness in your remorse. You do not like the fact that you are attracted to young children do you?  And you are sorry and ashamed for the harm that you have inflicted on them and their families. You have said you do not want to do these things, you are taking drugs to reduce these urges and they are having some positive effect, and you have said you would even accept chemical castration if it would stop your urges.  Your problem S is that you can’t help yourself.

[24]     On the other hand, your remorse was not so great as to lead you to confess to this round of offending when you were charged and sentenced in 2008.  I think there is some remorse there at a genuine level, but it is not complete.

[25]     In any event taking into account all of these matters I would deduct five years leaving a finite sentence of 12 years.

1      I rely here on the tariff case in R v A M [2010] NZCA 114, [2010] NZLR 750. I consider this offending to be top of Band 3 with one factor – age and vulnerability being present to a high degree and the other factors moderately so.

[26]     The next question is whether I should impose a second sentence of preventive detention on top of the one you are already serving.  You qualify for consideration for preventive detention because you are over 18 and as required by the statute.  The law also requires me to be satisfied that you are likely to commit another qualifying sexual offence if you are released at the sentence expiry date.  I have no doubt that you likely to do so.   Both the psychiatrist and the psychologist confirm in their reports and in their different ways from their different perspectives that you are very likely to reoffend on release, even having completed the necessary corrective courses some of which you have already done.   That is unless you are quite closely supervised.  And of course the sentencing Judge in 2008 took that same view and sentenced you to preventive detention for the first time.  So there is no question that the statutory criteria are met and you ought to be considered for that sentence.

[27]     Preventive detention is just what it says – preventive.  It is designed primarily to protect the community rather than to punish you.2   In my view, a second sentence of preventive detention cannot serve a protective purpose.  It is unnecessary because you are already serving a sentence of preventive detention.  The community is not further or better protected by imposing another one.  The Parole Board will already need to be satisfied that the community is safe before you can be released.  In my

view there is no rational connection between protecting the community and a second sentence of preventive detention.

[28]     A finite sentence is therefore going to be sufficient in your case.   But, if it were not for the pre-existing sentence of preventive detention, there is no question that I would have sentenced you to that sentence.  The real question is whether a minimum period of imprisonment should be imposed?  This cannot be a simple re- sentencing of all matters sentenced in 2008 along with the current charges.  This is a separate sentencing exercise.   But it is nonetheless necessary to be mindful of the fact that these current charges relate to offending that is contemporaneous with those

2008 charges.  I am mindful also of the fact that if I imposed a minimum period of say seven years, you would face effectively, a minimum period in prison of 14 years for contemporaneous offending.   That is unquestionably excessive.   I am mindful

also that the maximum allowable minimum period of imprisonment is only 10 years

2      R v C [2003] 1 NZLR 30 (CA).

in terms of the statute.  On the other hand you must of course serve at least a third of any sentence I impose before  you can be considered for parole even without a minimum period of imprisonment.  A third of 12 years is four years.  The effect of this would be to add approximately two and a half years to your current minimum period of imprisonment before you can be considered for parole.  That, in my view, is a just outcome.  It is to be remembered that you are currently serving a term of preventive detention and protection of the community must now be the paramount consideration.  Once you become eligible for consideration for parole in four years, protection of the community will be to the forefront of the minds of the Parole Board and that is where the decision for your release does and should lie.

[29]     S,  you  are  sentenced  therefore  on  the  lead  charge  of  rape  to  12  years’

imprisonment. You are sentenced on the lesser charges as follows:

(a)       On each of the seven counts of indecent act on a child under 12, two years’ imprisonment.

(b)      On each of the four charges of attempted rape of a female under 12,

four years’ imprisonment.

(c)       On the charge of attempted unlawful sexual connection with a child

under the age of 12, two years’ imprisonment.

(d)      On the charge of attempted sexual violation (digitally), three years’

imprisonment.

[30]     All of these sentences of course to be concurrent among themselves and with the lead sentence.

[31]     I also direct the release of both the psychiatrist’s and the psychologist’s report

to Corrections.

[32]     Please stand down.

ADDENDUM:

[33]     Pursuant  to  s  202  of the Criminal  Procedure Act  2011  I make an  order prohibiting publication of names, addresses, occupations or identifying particulars of

the accused.

Williams J

Solicitors:

Crown Solicitor, Wanganui

D M Goodlet, Wanganui for Prisoner