R v Selby

[2012] NZHC 3569

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2011-043-569 [2012] NZHC 3569

THE QUEEN

v

GRANT ALLAN SELBY

Hearing:         20 December 2012

Counsel:         J Marinovich for Crown

K R Pascoe for Prisoner

Judgment:      20 December 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, New Plymouth

Nicholsons, New Plymouth

R V SELBY HC NWP CRI 2011-043-569 [20 December 2012]

Introduction

[1]      Grant Allan Selby, you appear for sentence today on two counts of sexual conduct with a young person.  Each offence carries a maximum penalty of 10 years imprisonment.  One of the pleas was entered at the start of your trial, on 13 February

2012, and the other part way through, on 22 February 2012.  The conduct involved both anal and vaginal penetration of a 15 year old girl.

[2]      You were found not guilty on charges involving alleged sexual violation of the female complainant and a male complainant aged 12 years.  Nevertheless, you admitted in evidence conduct with the boy that would have amounted to a crime had you faced a charge of sexual conduct with a young person, rather than one of sexual violation.

[3]      You came before me for sentence on 29 June 2012, with your co-offender Mr Charnley.    While  I  sentenced  Mr  Charnley  on  that  day,  I  adjourned  your sentencing to obtain more information about your risk of reoffending.

[4]      Notwithstanding  the  limited  number  of  offences  on  which  you  were convicted, and the absence of prior offending of this type, I harboured real concerns about the risk that you would reoffend.  Primarily this was due to your cognitive and learning difficulties.  They meant that you were  unable to understand that what you did was wrong or why it was wrong.   In those circumstances, I was considering whether to sentence you to preventive detention  to protect young members of the community from you.

[5]      Sentencing was adjourned so that you could undertake a programme through Taranaki SAFER Family Centre to address the underlying causes of your offending. You were remanded in custody for a period to 3 August 2012.  Thereafter you were remanded on bail, involving electronic monitoring, at a family member’s home, from where you attended the programme.  I have now received a report from Mr Stevens, the treatment provider.  I shall refer to that in some detail later.

Facts

[6]      I do not propose to say much about the nature of the offending.   I covered that fully in the remarks made on 29 June 2012.[1]

[1] R v Selby [2012] NZHC 1541 at paras [7]–[15] and [17].

[7]      The events in issue occurred at a gathering that took place at your home on Saturday 19 February 2011.   Both the male and female complainant had come to your home at your instigation.  You had obtained permission from their mothers on the Friday night.

[8]      So far as the male complainant was concerned, you admit engaging in an act of anal intercourse.  Your evidence was that involved penetration of your anus by the male complainant. You also accepted that you sucked his penis. You engaged in acts of anal and vaginal intercourse with the female complainant.

Sentencing issues

[9]      Before  the  last  sentencing  hearing,  to  enable  me  to  consider  whether  a sentence of preventive detention was required, I obtained reports from two health assessors, Dr Dean (a psychiatrist) and Dr Bellve-Wack (a psychologist).  Dr Dean also gave evidence in this Court on 29 June 2012.

[10]     The  purpose  of  the  sentence  of  preventive  detention  “is  to  protect  the community from those who pose a significant and ongoing risk to the safety of its members”.[2]  When considering whether to impose that sentence I am required to take into account:[3]

[2] Sentencing Act 2002, s 87(1).

[3] Ibid, s 87(4).

(a)       any pattern of serious offending disclosed by the offender's history;

and

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

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

(d)the absence of, or failure of, efforts by the offender to address the cause or causing of the offending; and

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

[11]     An assessment of risk, for this purpose, is one for me as the presiding Judge to make.  I am guided by the assistance received from the health assessors’ reports.[4]

Assessment of risk carries with it a corresponding obligation to evaluate the way in which the risk can be managed.

Personal circumstances

[4] R v Exley [2007] NZCA 393 at para [46].

[12]     At the time of the offending, Mr Selby, you were aged 47 years.  As a result of suffering from anoxia at birth you have experienced cognitive and learning difficulties.   You struggled at school with both reading and writing.   You remain largely illiterate.

[13]   While you have no history of psychiatric illness, it is clear that the circumstances of your birth have led to your intellectual impairment.   This means you lack the ability of many in society to understand fully the consequences of your actions.

[14]     In the context of the present offending, I was told that you suffered sexual abuse at the age of 15 years.  The circumstances of that were described to Dr Dean. It involved grooming and the supply of alcohol.  It is enough to say that there is a degree  of  similarity  between  that  and  the  offending  on  which  you  appear  for

sentence.

[15]     The experts agree that you have no history of sexual deviancy.  Nor is there any evidence of a pattern of sexual drive towards children.

[16]     The  experts  believed  that  you  appeared  to  have  a  desire  to  avoid  any temptation to engage in future sexual relations with children.  They considered that you  would  require  some  treatment  to  achieve  that  goal.    Particular  problems identified were your lack of insight into the nature of the offending in which you engaged, a complete lack of empathy for both the complainants with whom you engaged in sexual conduct and your inability to understand why it would be inappropriate for you to be released into the community to live with a man who also had a history of sexual offending against children.

[17]     I was moved by those observations because the most chilling part of the trial, for me, was  listening to  the matter of  fact  and  emotionless  way in  which  you described what happened with both the female and male complainant in terms that made it clear that you had no understanding at all of why your actions were wrong and the impact of them on the complainants.

(b)      Additional information from Mr Stevens

[18]     During  the  period  of  the  adjournment,  Mr  Stevens  has  seen  you  on  12 occasions, for one hour on each.  He confirmed my own impression at the trial that you are “a boy in man’s clothing” with “the intellect of [the] two complainants most probably way ahead of” you. That is why you did not see them as victims whom you were exploiting.  Rather, you considered that the three of you were “doing naughty things rather than ... acting out criminal behaviour”.

[19]     I think it will be helpful for everyone here today if I were to use Mr Stevens’

own words to describe your responses to the treatment programme:

I have been impressed by Mr Selby’s determination to learn the Cycle of Offending and how that pertained to him personally.   He can demonstrate understanding of Relapse Prevention strategies and is very proud to show his understanding of the ACE plan a mnemonic for Avoid, Change (change thinking/behaviour) and Escape.  He engaged the assistance of his sister to help him learn that and keeps a copy as a reminder.

The  Good  Way/Bad  Way  treatment  model  developed  by  Wellington WellStop clinicians Lesley Ayland and Bill West 2004 was initially designed to use with intellectually impaired adolescent sexual offenders but now used widely throughout the western world not only for mentally impaired adolescents and adults but also main stream sexual and other offenders. That model fitted well for Mr Selby who quickly understood the concepts and how his Mr Sneaky, Mr Bully and Mr Just Do It can control all our lives if we let them take charge.  He would be advantaged to have more exposure to that model.

Working with Grant Selby requires patience with the need to constantly reinforce most modules of learning.  Helping him to understand the concepts of identifying behavioural and cognitive characteristics of his “old me” and then identifying, developing and practicing the behavioural/cognitive characteristics of his “new me” are challenging and fair to say that is a work in progress.   Few of the words used so far in this paragraph are understandable to Grant Selby and my years of working with child victims of sexual abuse and children acting out sexually inappropriate behaviour have helped me frame concepts in language they and Mr Selby can understand.   His want to learn is palpable and the delight he expresses on grasping a concept and integrating that into his way of being is wonderful to observe.

[20]     I think everyone listening to that will gain some appreciation of why you did not know that what you did was wrong, when it is necessary for someone to use terms such as “Mr Sneaky”, “Mr Bully” and “Mr Just Do It”, to explain to you why it was it was wrong.

[21]     In relation to what appeared to be your lack of empathy for the victims, Mr

Stevens said this:

Medical science in understanding brain development has made considerable progress since 1999 with the advent MRI imaging and the ability to see the brain working has seen a quantum leap forward in our understanding of brain development.  While I have considerable training on this subject I am not qualified to offer medical opinion.   I can state that modern science suggests the brain is not fully mature under age twenty five years and that the last organ of the brain in that maturity known as the ‘third eye’ and located in the frontal cortex above and almost between the eyes is the organ that provides us with empathy.

Anyone who has worked with children or adolescents knows that to expect much in the way of empathy from them is a pipe dream and best we can do is help them to understand the meanings of responsibility and consequences. Given  the  mental age  Mr Selby operates  at  I see it  as  unlikely he  has empathic qualities and my approach has been to reinforce the meanings of responsibility and consequences something he now well appreciates.   Like children he is not without flashes of empathic feelings but those are more from what has been modelled for him than his own empathic abilities.

Competing contentions

[22]     Mr Marinovich, for the Crown, has submitted that I should take a starting point for sentence of between four years six months and six years imprisonment, ending (after taking account of mitigating factors) with a sentence of between three years six months and five years two months imprisonment.

[23]     At the other end of the spectrum, Ms Pascoe, on your behalf, submits that based on your unusual personal circumstances, the efforts you have made to rehabilitate, the time spent in custody and on restrictive terms of bail, a lenient sentence of either supervision or intensive supervision should be applied.

Analysis

[24]     Mr Selby, I am now satisfied that you should not be regarded as a candidate for preventive detention.  There is no pattern of serious offending disclosed by your history; the risk assessment for future offending is low, provided you continue the good work undertaken with Mr Stevens; you have made efforts to address the cause of your offending; you now have a degree of insight and the lack of an emphatic

response has been explained to you.[5]

[5] Compare with the factors set out in s 87(4) Sentencing Act 2002.

[25]     In those circumstances, I am not satisfied it is necessary to impose preventive detention “to protect the community from [a person who poses] a significant and ongoing risk to the safety of its members”.[6]

[6] Sentencing Act 2002, s 87(1).

[26]     That leads me to the appropriate sentence to impose.   Mr Stevens put the point nicely in his report when he suggested that my “task in attempting to balance the needs and expectations of an affronted public, the needs of the two victims and their  families  while  endeavouring  to  ensure  [that  you  are]  set  on  a  path  of redemption and a non-offending future [is] like walking a tightrope over Niagara

Falls”.  Certainly, that is how I feel today.

[27]     The statutory provision that criminalises sexual conduct with a young person under the age of 16 years, notwithstanding consent or an apparent belief in consent, is premised on the need to protect young girls and boys from sexual predation by adults.   The circumstances of the offending will vary.   The age disparity, circumstances in which the offending occurs and the nature of the conduct in issue will all be relevant to determining a starting point for sentence.  That starting point must be assessed in the context of the maximum penalty for the offence, 10 years imprisonment.

[28]     In  this  case,  there  are  a  number  of  aggravating  factors.    There  was  a significant age disparity (approximately 32 years) between the 15 year old female victim and a 47 year old man.  The disparity was greater when one takes account of the admitted sexual conduct involving the male complainant, even though you were acquitted of sexual violation charges in relation to those acts.  The supply of alcohol to the young people, the fact that sexual contact occurred on more than one occasion, in relation to the vaginal intercourse it occurred while the young girl was having her period, and the presence of a co-offender, Mr Charnley.   They all add to the seriousness of the offending.

[29]     While I accept that you honestly believed that the two young people were consenting to sexual activity, that is beside the point. As I think you now understand, from your sessions with Mr Stevens, what you did was legally and morally wrong. Again, your response to the treatment programme is best put in Mr Stevens’ own words:

When first seen Mr Selby professed the view that both the 12 year old boy and 15 year old girl were complicit in what happened and gave reasons why that was so.  In effect he believed they were not only willing participants but especially in the case of the young woman to a large degree precipitated the sexual activity.

When the dynamics of power, difference in age, moral and societal responsibilities and legality as decreed by the law were explained to Grant Selby in a way he was able to comprehend he became almost speechless as the enormity of his unacceptable sexual behaviour and betrayal to both his victims dawned on him.  At that point he was able to understand the only person responsible for what happened is him and that realisation came as something of a shock.

[30]     Taking account of all aggravating factors,  I consider a starting point for sentence of four years imprisonment is appropriate.

[31]     So far as personal aggravating factors are concerned, while you have some prior convictions none are relevant to sentencing.  In particular, I make it clear that there are no prior convictions for sexual offending, whether against young people or not.  Nor is there any evidence of sexual offending outside of the single occasion on which these offences were committed.

[32]   In mitigation, I can take account of your efforts at rehabilitation, your intellectual disability and the remorse which I now understand you to express.  Of these factors, by far the most significant is the positive reaction to the treatment programme undertaken with Mr Stevens.

[33]     In a case like this, the primary sentencing goals are denunciation, deterrence, accountability and protection of the community.  On the latter point, I have already expressed the view that your risk of reoffending, provided you have satisfactory support mechanisms, is relatively low.  While Courts must be astute to respond to sexual offending of this type firmly, to meet the interests of the victim and the wider community, there are also societal benefits in creating an incentive for sexual offenders to address the underlying causes of their offending and to emerge back into society well placed to control urges that would otherwise cause harm to others.

[34]   I regard your intellectual disabilities as merging with your attempts to rehabilitate.  One led to the other.  It was necessary for you to receive appropriate treatment because, without it, you lacked the capacity to understand the harm that you had done.  Together, the two factors justify significant credit.  I allow 25% for them.  In addition, I add 5% to reflect what I now regard as genuine remorse and the best you can actually do to empathise with your victim.   I round that credit to 14 months.

[35]     I allow a further credit of two months to represent the time you have spent in custody and on restrictive terms of bail.   That means the overall credit for those mitigating factors is 16 months.

[36]     You are entitled to a credit for your guilty pleas.  While one was entered at the start of the trial and one during it, counsel for the Crown accepts that the pleas were offered in November last year.  That being so, I allow a credit of 15%, which I round to five months.

[37]     That leaves an end sentence of two years three months imprisonment.  I have considered, as your counsel has requested, whether it is appropriate to impose any sentence short of imprisonment.   I do not think that I can.   To do so would not adequately denounce the offending and hold you accountable for it.

[38]     The Crown has sought a minimum period of imprisonment.  In my view that is unnecessary having regard to the results of the rehabilitative programme.

[39]     The sentence to be imposed will allow the Parole Board to consider your release after you serve one-third.  You are not automatically entitled to release at that time.  Hopefully, when you are finally released the terms of parole can be crafted in a way which will enable you to continue making progress in your rehabilitation.  That will be for your benefit and for the benefit of the community as a whole.

Result

[40]     Mr Selby, on each charge you are sentenced to a term of imprisonment of two years and three months.

[41]     I direct the Registrar to forward to the Chief Executive of the Prison in which you will be held copies of the health assessors’ reports, Mr Stevens’ report, the transcript  of  oral  evidence  given  by  Dr  Dean  on  29  June  2012  and  my  own sentencing remarks, both on 29 June and today.

[42]     Stand down.

P R Heath J