R v Shirley

[2012] NZHC 2602

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-020-1308 [2012] NZHC 2602

THE QUEEN

v

MATTHEW JAMES SHIRLEY

Hearing:         9 October 2012

Counsel:         J Rielly for the Crown

E J Forster for Mr Shirley

Judgment:      9 October 2012

SENTENCE OF WOODHOUSE J

Solicitors / Counsel:

Mrs J Rielly, Elvidge & Partners, Office of the Crown Solicitor, Napier

Mr E J Forster, Barrister, Hastings

R V SHIRLEY HC NAP CRI-2012-020-1308 [9 October 2012]

[1]      Mr Shirley, you may be seated while I explain the sentence.

[2]      The critical question on this sentence is whether you should be sentenced to a long but finite period of imprisonment or whether you should be sentenced to preventive detention.  And you are, of course, well aware of that.  I want to state at the outset that I am not going to sentence you to preventive detention.  I need to take some time to explain the reasons.  I want to explain those reasons to you because I really do hope that you listen with care to what I have to say and then in due course take advantage of all of the assistance that will be available to you, and which you have said you will take advantage of.  I also have to explain this sentence to others – most directly to the victims of what are appalling offences by you.  And I have to explain why I am doing this to the community as a whole.

[3]      You appear for sentence on four charges to which you pleaded guilty.  These are sexual offences against two young girls, aged 10 and 11.

[4]      There are two offences of sexual violation, one by rape and one by unlawful sexual connection.   These offences have a maximum penalty of 20 years imprisonment.  There are two offences of doing an indecent act on a child under 12. The maximum penalty is 10 years imprisonment.

[5]      You were to be sentenced in the District Court, but that Court referred the sentence  to  this  Court  to  determine  whether  a  sentence of preventive  detention should be imposed.  It is completely understandable why the District Court did that.

Facts

[6]      The victims are sisters.  I will refer to them as A and B.  When these offences occurred, in April 2012, A was aged 10 and B was aged just 11.  They live with their mother.

[7]      You had known their mother for some time.   In April 2012 you arrived in their home town and asked their mother if you could stay with her.  You had been

released from prison about three weeks earlier and told the mother that you had no means of supporting yourself. There was a friendship between you and the mother.

[8]      On a Wednesday in April the mother told you that she was going out the following Friday and she would get a babysitter to look after the children.  You told her that you would babysit. You told her she deserved a night out.

[9]      During the afternoon of the Friday, at the house, you drank 15 pre-mixed cans of bourbon and cola over the course of the afternoon and evening.   Shortly after

10:00 pm the mother went to leave.  The children were in bed.  You were asleep at the kitchen table.  The mother woke you and told you that the children were asleep and she was leaving.

[10]     Soon after the mother left you went into A’s bedroom – the 10 year old – where she was sleeping with other children.  You shook her awake, and then asked if she was alright.  You then rubbed her back and stomach under her clothing and then rubbed her buttocks.  She pushed your hand away. This was the first indecent act.

[11]     You then began rubbing her vaginal area and pushed a finger into her vagina through her underwear.   You continued doing this for approximately 20 seconds before she pushed your hand away, jumped out of her bed and got into the bed of one of her siblings.  This caused you to leave the bedroom.  That was the first unlawful sexual violation.  And as I have said Mr Shirley, that by itself carries a maximum penalty of 20 years imprisonment.

[12]     You then raped B.  B was lying on her bed watching television and painting. You sat on the bed and asked if you could watch a movie with her and whether her mother had any sex movies. You then asked her if she had ever had sex to which she replied “no, it’s disgusting”.  You asked her if she wanted to have sex with you and she said she did not.  You began pleading with her to have sex but B continually said no.

[13]     You then went into the mother’s bedroom, got a condom and returned to B’s

bedroom.  You pulled your pants down in front of her and put the condom on.  You

then removed her pants and underwear, turned her over on her back, opened her legs and you raped her.

[14]     In the course of this you began putting your tongue in her mouth.  This was the second indecent assault.   When this happened she pushed you causing you to withdraw your penis.   You then removed the condom and reinserted your penis without the condom in her vagina.

[15]     You then left the bedroom, throwing the condom into a rubbish bin.  B sent a text message to her mother.   You told the victims not to tell their mother and to pretend they were asleep.  The mother returned quickly.  When she confronted you you denied the offending.  Your victims did not make full disclosures to their mother until the following day because you made sure you were present while their mother was trying to talk to them.  When you were told to leave the house the following day, which you did, both girls made full disclosures to their mother.

[16]     When spoken to by Police you denied any involvement in the offending. You stated you had never been left alone in the house with the children and that the children and their mother were lying.  However, you pleaded guilty to all charges in June 2012, prior to committal.

[17]     A forensic medical examination of B was conducted.  She described pain in her vagina, both internally and externally.

Victim impact statement

[18]     Their mother has provided a victim impact statement for her daughters.  As would be expected, your crimes against them have affected them badly in various ways.  I do accept that you understand that.  I will simply note some aspects of this. They do not want their mother to leave the house, even for a short period.  They are showing aberrant behaviour of a sexual nature, although it should be noted – and the mother notes – that they have been sexually abused in the past and not by you.  B, after being quiet for the first week or so, then started to behave in undisciplined ways, including towards her mother, and in ways that I infer she did not behave

before.   This has required counselling but her behaviour has not improved.   Her relationships at school and with friends have also been adversely affected.   The emotional and psychological effect on both girls has been such that their mother has had to give up her main job in order to be there to support her daughters.   This demonstrates in a different way the major harm you have caused.  In addition, it now means that the family is struggling financially.  The mother is worried that the girls will now see the world on the basis that bad things happen to them.  She says, at the end of the statement:

What I do know is that he – meaning you – has caused damage to my girls that can’t be measured.  I brought Matt Shirley into our home at a time when my husband was in jail and [I] was in need of adult company.  I put my trust in him with my kids and will forever have to live with the guilt of leaving him alone with them.  He has caused lasting problems for me and my girls with trust.  There is not a day that goes by that Matt Shirley’s actions don’t cause some issues within our home.

Personal circumstances

[19]     I come to your personal circumstances, and I can only provide an outline.

[20]     I have received and read the pre-sentence report and two reports provided under  s 88  of  the  Sentencing Act  to  assist  in  deciding  whether  a  sentence  of preventive detention should be imposed.   There is a report from Mr Morrison, a registered psychologist, and from Dr Young, a consultant psychiatrist.

[21]     The  reports  from  Mr  Morrison  and  Dr  Young  in  particular  provide background information about your life as well as assessments of the risk of your re- offending.  It is apparent from this information that your upbringing was appalling. This included sexual abuse of you from a young age and  your being forced to consume alcohol also from a young age.

[22]     The things that were done to you obviously were not your fault.   But the consequence of these things is that they have not only been harmful to you but, together with other factors which have shaped your personality and your attitudes, they have resulted in your behaviour which has been seriously harmful to others – seriously harmful to others.

[23]     At the age of 26 you have a substantial list of previous offences, commencing with alcohol related offences dealt with in the Youth Court in 2002 and 2003.  In the period  from  August  2005  to  December  2011  you  have  received  eight  sets  of sentences totalling on my count, effectively, 6 years and 6 months imprisonment.  Of particular concern is a conviction in 2007 for unlawful sexual connection with a 13 year old girl.  I will come back to that in a moment.  The other convictions are for different  types  of  offences,  but  the  number  and  frequency  of  the  convictions indicates a significant disregard for other people and of Court orders.  In addition, as noted in the pre-sentence report, the majority of your offending has followed consumption of alcohol, but despite special conditions imposed on some sentences to try to address the alcohol problem you have not taken the opportunity to deal with it or you have been unable to deal with it.

[24]     The sexual offending in 2007 occurred after consumption of alcohol by you and also by the 13 year old victim.  The victim was known to you.  She was staying with her friend at the friend’s house when you went to visit the friend’s mother.  Late in the evening you and the victim were alone in the kitchen.  You must have known her age.   You knew her friend was 13.   You started kissing her and rubbing her genital area through her clothing and then under her clothing.   You asked if she wanted to have sex and it seems that she agreed.  Sexual intercourse took place in a bedroom over a period of about five minutes.  At that point movements from other occupants of the house were heard.  You jumped into another bed, told the victim to pretend she was asleep and yourself pretended to be asleep.

[25]     This offence resulted in a sentence of imprisonment of 9 months.  A health assessor’s report was provided in 2008 for the purpose of considering an extended supervision order under the Parole Act.  The assessment then was that you were at a medium to high risk of sexual re-offending.  However, it was recommended that an application for an extended supervision order not be made because there had been no previous sexual offending.  Although there may have been apparent consent by the victim  to  that  earlier  offending,  there  are  nevertheless  concerning  similarities between that offending and the current offending.

Sentence

[26]     Coming to the question of sentence, Mr Forster on your behalf quite properly acknowledges that this offending must result, at the least,  in a lengthy term of imprisonment but he submits that this is not a case requiring a sentence of preventive detention.  I will consider the length of a finite sentence before considering whether preventive detention should be imposed and explaining my reasons why it will not be imposed.

[27]     A Court of Appeal decision called AM1  sets out ranges of imprisonment, which are called bands, for serious sexual offences depending on the gravity of the offence.  I will assess this firstly in relation to the rape.  Both counsel submit that the rape, in terms of the gravity, comes within band 2 of the Court of Appeal case.  The range of imprisonment in band 2 is 7 years to 13 years.  The Crown submits that the starting point for this sentence should be 10 years imprisonment and that this should be increased by 2 years to take account of the other offences that occurred on the same date.   This is before considering a further increase for prior offences and related matters and a reduction for your guilty pleas.

[28]     Mr Forster submits that the starting point for the rape should be 8 years imprisonment.  He further submits that there should be no increase to take account of the other offences, and in particular the offences against victim A.  He put this on the basis that, and I quote, “both charges are part of a continuum and are really part and parcel of the lead charge” of rape.  I do not agree except to the extent that one set of offending, against the 10 year old victim, was followed by further and even more serious offending against the 11 year old.  Mr Forster’s point would be relevant to the question whether there should be cumulative sentences for the offences against each victim – that is to say, the sentence for the offences against victim A to be added to the sentence for the offences against victim B.   I do not intend to impose cumulative sentences.  For that reason there must be an increase on the starting point for the rape to take account of what are separate offences, and in particular because

two of the other offences were against another victim.

1 R v AM [2010] NZCA 114 (CA).

[29]     I agree that the offending comes within band 2.   The Crown submits that there are four aggravating features of the offending, which put it within band 2 and also  indicate  the  starting  point  within  band  2.    These  are  planning  and  pre- meditation, the vulnerability of the victims, the harm to the victims and breach of trust.   Mr Forster accepts that there was vulnerability, breach of trust and defencelessness but submits that they all represent the same aggravating factor of the offending.  He further submits that there was no planning or pre-meditation – that it arose from being intoxicated.

[30]     I am satisfied that vulnerability, harm and breach of trust are present and distinct and that they apply to each of the victims.  There was also at least a degree of pre-meditation but alcohol is clearly the driving force – or the immediate impetus. The psychologist and the psychiatrist make that clear in their reports.

[31]     The Court of Appeal decision in AM refers to other cases which, to an extent, provide  a  guideline  for  determining  the  starting  point.    In  addition,  the  Crown referred to sentences in cases known as Ringrose,2  Grant,3  and T.4    Ringrose is not really comparable and the sentences in Grant and T were imposed before the review of sentencing levels by the Court of Appeal in AM.  And in AM the Court of Appeal noted that some of the earlier sentences might in fact be pitched too high.   The circumstances of two other cases – Smith5  and Tupuola6  – are, at least to an extent, more comparable.

[32]     Having regard to other sentences of relevance, and in particular, applying the Court of Appeal guidelines to the facts of this offending, and taking account of all relevant principles and purposes of sentencing set out in the Act, I am satisfied that the starting point for the rape should be 9 years imprisonment.

[33]     I am also satisfied that this should be increased by 2 years to take account of the other offences.  Of the other offences the sexual violation of victim A is the most

serious, and that is not to say that the other offences are not serious in themselves.  If

2 Ringrose v R [2011[ NZCA 634.

3 R v Grant [2009] NZCA 415.
4 R v T HC Hamilton CRI-2007-019-2828, 28 September 2007, Ronald Young J.
5 Smith v R [2011] NZCA 447.

6 Tupuola v R [2011[ NZCA 639.

you were being sentenced for that other offence of sexual violation by itself the starting point, based on the AM case, would be around 4 years.  And I agree with the Crown’s submission.   An increase of 2 years takes the sentence to 11 years imprisonment.

[34]     A further increase in the sentence of 18 months is required because of the previous sexual offence in particular, but also offending while on release conditions and because of the broad quality of some of the other earlier offences.   The end sentence, before taking account of your guilty plea and any other mitigating matters, would therefore be 12 years 6 months imprisonment.

[35]     Mr Forster submitted that in addition to the guilty plea you have shown genuine remorse.  Mrs Rielly, as I understood her submission, did not quarrel with that to a significant extent but submitted that there should be no added deduction for expressions of remorse.   Reading the two – and independent – reports from the psychiatrist and the psychologist, and reading the letter I received from you this morning, I do accept that in your particular way there is a degree of genuine remorse. And, as I have earlier indicated, in a complicated way an understanding of the harm you  have  inflicted  on  innocent  people.    It  is  not  a  matter  where  a  substantial reduction can be allowed, but I recognise it and there will be a reduction of 3 months imprisonment.

[36]     And that flows into the next matter – in addition, to your credit, you did plead guilty at an early stage.   An early plea in cases such as this is of particular significance because the victims are saved the ordeal of giving evidence.   To a slightly lesser extent, their mother also avoids the ordeal of giving evidence.  You would be entitled – and you are entitled – to a reduction of the sentence of 25%, which is the maximum.   That would result in a finite sentence of 9 years and 2 months imprisonment.

Preventive detention

[38]     Mr Morrison, the psychologist, conducted four interviews over a total of 5 ½ hours.   He also reviewed a range of information, including six earlier reports by psychologists.  This includes the report in 2008 to assess whether there should be an extended supervision order following the earlier sexual offence.

[39]     Mr Morrison expressed the opinion that your offending appears to reflect some effort on your part to demonstrate that you have authority over individuals rather than your just being a non-entity whose opinions are disregarded by others. He said, and I quote:

It appears that for Mr Shirley to be certain he can achieve such authority, he selects victims who are compromised by substances and/or age as he is unlikely to be able to make an older female bow to his will.   When he offends, it is likely that these times represent the very few occasions [in] Mr Shirley’s life whereby he has had control over another, as it is typically the reverse for  him and  as such  it is  very probable that  he  evaluates these occurrences in a positive manner.

[40]     However, following this statement, and of importance, Mr Morrison said:

It is to Mr Shirley’s credit that he acknowledges that the gratification he receives from such dominance when he is sexually offending is so alluring that he has no regard for his victim’s distress instead focusing solely on his own physical needs.  He now needs to address the beliefs that underpin and maintain his offending and develop a meaningful plan for an offence free life for him not to be [any] longer considered as posing an elevated risk of sexual offending against female children …

Addressing this has never happened in the past and you have never been helped to address it.

[41]     Relevant to this, in terms of my overall assessment, is something recorded by

Mr Morrison earlier in his report.  I will read this:

Mr Shirley said he was well aware of how the victim of his sexual offending felt as he had experienced similar distress when he was the victim of coerced sexual activity.   He believed his actions had – and I quote – “probably wrecked [the victim’s] life saying his abuse had such an outcome for him. Mr Shirley thought she will no longer trust people and she may commit crime or suicide as a consequence of what had happened to her.

Mr Shirley stated that he expected to get a sentence of preventive detention because of his criminal history and was prepared for this outcome.   He explained that a Judge would consider that he does not learn from previous experiences and was not going to change.  Mr Shirley complained that every time he got into trouble he was sent to gaol whereas he should have been sent to a rehabilitation facility where he would have acquired the resources to manage his behaviour.  He explained that prison should be the setting for intervention as in the community there were too many distractions and temptations and treatment was therefore not a priority.  Mr Shirley said he [has] not been given the opportunity to show to others the ‘good person’ that he is, saying he was a ‘caring and loving person’ who ‘would do anything for anyone’.  He stated that he had friends who could testify as to the quality of his character.

[42]     Mr  Morrison  used  two  instruments  to  assess  the  risk  of  your  further offending.  The conclusion is that you are at a high risk of further sexual offending based on those tests.  He said:

It is likely that potential victims would be adolescent or younger girls that Mr Shirley has exclusive access to and as such would be vulnerable to coerced  sexual  activity  that  could  include  rape.    It  is  probable  that  Mr Shirley would be intoxicated by alcohol during such offending.

[43]     As I have said Mr Shirley, you have never received any form of counselling or other intervention to address sexual offending.  In this regard Mr Morrison said, in his concluding paragraph:

He will be eligible for intensive psychological intervention at a special treatment  unit  (Te  Piriti  or  Kia  Marama)  for  those  persons  who  offend against children.   If he chooses to avail of this treatment option, this will provide him with an opportunity to address needs that should assist with reduction of risk and development of skills to manage risk.  Mr Shirley has indicated a willingness to undertake such treatment although given his past treatment failures, a measure of caution must be exercised as to whether a successful outcome will be achieved.  If he chooses not to engage in such intervention, it is unlikely that there will be any reduction of his assessed risk of similar offending.

But you have never had that choice up to this point.

[44]     The psychiatrist, Dr Young, conducted two interviews, over a total of about 1

½ hours.  It appears that he read one earlier report, produced in 2002.  He conducted an interview with your father.

[45]     Dr Young reviewed a range of matters before recording his opinion.  As this is reasonably concise I will read a substantial part of it.  He said, firstly, under the heading “Regarding mental health”:

Matthew Shirley has a diagnosis of alcohol  dependence and also shows evidence of the consequences [of] childhood sexual abuse.  In particular, he has  intrusive  memories  and  dreams  about  sexual  abuse,  an  emotional reaction towards the alleged abuser and a level of psychological distress manifesting particularly as anxiety.  It is likely, but cannot be established at this interview, that aspects of his sexual functioning are abnormal.  There is no history of Matthew Shirley receiving formal treatment for the psychological effects of sexual abuse.   Attempts to treat the alcohol dependence have been made in the past and have to date been unsuccessful.

[46]     Dr Young then expressed an opinion as to the risk of your committing a further qualifying sexual offence.  Part of his opinion is as follows:

It  is  likely  that  Matthew  Shirley’s  experience  of  sexual  abuse  in  the childhood has had a pathogenic effect on his sexual behaviour as an adult.  It is possible that this behaviour has manifest[ed] itself in the context of the offending.   As Matthew Shirley has yet to receive treatment for the consequences of sexual abuse, it is difficult to prognosticate firmly as to whether this treatment would be effective and consequentially reduce the risk of offending behaviour recurring in the future.

An essential component of treatment will be treatment of Matthew Shirley’s dependence on alcohol. … In the light of the seriousness of the dependence and the seriousness of the offence, the only appropriate goal of treatment would be complete abstinence from alcohol.  In the past Matthew Shirley has not been able to benefit clearly from alcohol rehabilitation.  However, it is possible that when confronted by extremely serious consequences – and I interpolate Mr Shirley that you are now being confronted by them and they are going to be imposed on you – he may be able to make a greater commitment to rehabilitation and it may be successful.

[47]     Dr Young’s conclusion is somewhat equivocal.  He said that he was unable to make a “categorical prediction” about whether you are likely to commit a further qualifying sexual  offence.    He says  that  if  you  were,  and  I quote,  “to  respond favourably to treatment of both the consequences of sexual abuse and alcohol dependence, then that risk would be substantially reduced”.

[48]     Under s 87(4) of the Sentencing Act there are five factors which must be taken into account when considering whether to impose a sentence of preventive detention.  I will note these and the essence of my conclusion on each.

(a)      Firstly, any pattern of serious offending disclosed by your criminal history.   There is a pattern up to a point, because there has been repetition, and the offences I am dealing with involve an escalation of the seriousness of this offending against young girls – that is to say, looking back to the 2007 offence and the current offending.  However, there was a gap of approximately five years between the earlier offending and the current offending, although over part of this period you were serving time in prison.

(b)Secondly, the seriousness of the harm to the community caused by the offending.  It goes without saying that it is significant.

(c)      The  third  matter  is  information  indicating  a  tendency  to  commit serious offences in the future.   Mr Morrison’s report is unequivocal that there is high risk based on the particular tests that he used.  The probation officer in the pre-sentence report came to the same conclusion.    Dr  Young  is,  to  an  extent,  equivocal.    However,  I interpret what he says as meaning that there is in fact at the least substantial risk of re-offending if you do not respond positively to the treatment that both he and Mr Morrison have talked about and which is available and which you have not received in the past.

(d)The fourth matter is the absence of, or failure of, efforts by you to address the cause or causes of the offending.  There have been failures to  address  dependence  on  alcohol  although  there  has  been  no treatment in a controlled environment, as I understand it.  Addressing this problem is critical.  There has been no treatment directed to the sexual offending, as I have stated before.   The absence of such treatment is significant.   The programmes earlier referred to have a high rate of success with people who offend against young people.

(e)      The final factor that must be taken into account is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[49]     The ultimate question, in terms of the legislation, is whether I am satisfied that you are likely to commit another qualifying sexual offence if you are released at the sentence expiry date of a sentence other than a sentence of preventive detention. In other words, am I satisfied that you are likely to commit another sexual offence if I impose the finite sentence that I earlier assessed?  When considering this I am also bound to have regard to the fact that on your release from a finite sentence, an extended supervision order may be imposed.

[50]     A sentence of preventive detention is not a sentence of last resort.  And it is not a sentence imposed for punitive reasons.  It is imposed to seek to reduce as much as possible a risk of harm to others which would be materially higher if a different sentence is imposed.  A number of factors point to the imposition of a sentence of preventive detention.  In addition to those I have already referred to, there are further factors appearing in particular in Mr Morrison’s report, but I am not going to list them.

[51]     There are countervailing factors.  Some of these I have also touched on but I

will repeat them by simply listing a range of considerations which in the end have persuaded me not to impose a sentence of preventive detention:

You have never received controlled treatment for the alcohol abuse and a

lengthy period in prison may substantially assist in that regard.

You have never received treatment to address the sexual offending, which includes the underlying psychological problems you have from your own childhood abuse.  The prognosis from the programmes for addressing these

problems is good.

You appear to have an understanding of the fact that you do have serious problems and an acceptance that they have to be addressed.  Am I right about that?  And you have acknowledged to me that I am.  And I hope that is an honest acknowledgement that you will follow up.

You do have some support outside prison although this is for the future.  You apparently have a good relationship with your father and your grandmother.  I have received supportive letters from your grandmother and from your aunt, both of whom have offered their support to the extent that they are able to

give it. And you have an older sister who offers her support.

You have a good work qualification and you have been in paid employment in the past.  You have also had conventional relationships with older people

or people your age.

You are aged 26, but that, in relation to all of the circumstances – many of

which I have covered – in real terms is still relatively young.

You recognise the harm that you have caused.   I regard that as particularly

important.

You appear to recognise that, if you are not going to spend most of the rest of your life in prison, you are the one who is going to have to change and who is

going to have to make the effort to change.

[52]     The  finite  sentence  is  a  lengthy  one.    And  I  will  impose  a  substantial minimum period of imprisonment for reasons I will come to.  At the end of this the Parole Board will also be able to impose an extended supervision order.  This is a matter which Mrs Rielly, for the Crown, quite properly acknowledged to be a matter of importance in determining whether there should be preventive detention or a finite sentence.  As a result these matters – the sentence and the high degree of probability of an extended supervision order – for the first time in your life you will be subject for a substantial number of years to significant constraints imposed, first, by the sentence and then by an extended supervision order.  And this will start from the relatively young age of 26.  There is risk, but I am satisfied that this is a proper way to deal with the matter.

Minimum period of imprisonment

[53]     A minimum period of imprisonment can be imposed if a sentence without a minimum period would be insufficient for any one or more of the purposes specified in s 86 of the Sentencing Act.  That is: holding you accountable for the harm you have done to the victims and to the community; denouncing your conduct; seeking to deter you; and protecting the community.

[54]     All of those matters apply in my judgment to justify a minimum period of imprisonment.   More detailed reasons have already been more than adequately covered in the matters that I have referred to up to this point.

[55]     The maximum period that can be imposed in your case, against the assessed sentence of  9  years  and  2  months  imprisonment  is  two-thirds of that  sentence. Having regard, Mr Shirley, to all of the matters I have already referred to, the minimum period of imprisonment should be 6 years.

Formal sentence

[56]     I will now impose the formal sentence and you should stand.

[57]     For the offence of rape you are sentenced to imprisonment for 9 years and 2 months, with a minimum period of imprisonment of 6 years.

[58]   For the offence of unlawful sexual connection you are sentenced to imprisonment for 3 years.

[59]   For the two offences of performing indecent acts you are sentenced to imprisonment for 18 months for each offence.

[60]     Those sentences are concurrent, so that the total is 9 years and 2 months with the minimum of 6 years.

[61]     Mr Shirley, in spite of the length of the sentence, from what you yourself have said in particular to Mr Morrison, also to Dr Young and to an extent in your letter to me, I apprehend that you consider that this is a real opportunity to address these problems and I sincerely hope that you take all the opportunity you will have to do it.  If you don’t do that and these problems occur again – I cannot say for certain – but the likelihood of a sentence of preventive detention is very high.

[62]     Mr Shirley, under an Act of Parliament when you are convicted for offences of this nature the Court is required to give you a warning.  You may have already received it, but there seems to be some doubt.  To an extent it is saying in different words – and the words basically directed by Parliament – what I have already said to you.  You are now subject to what is called ‘the three strikes law’.  I am going to give you a warning of the consequences of another serious violent offence, which includes offences of the type I have just dealt with.  You will also be given a written notice outlining these consequences which lists the serious violent offences, and it includes these serious sexual offences.  Firstly, if you are convicted of any serious violent offences other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.   It will be the full sentence.   If you are convicted of murder, committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust.  In that event the Judge must sentence you to a minimum term of imprisonment.   None of that, Mr Shirley, in any way diminishes the serious likelihood of a sentence of preventive detention if there is any further serious sexual offending by you.

[63]     Now you should stand down.

Woodhouse J