R v Smith HC Auckland CIV 2007-004-026384

[2008] NZHC 2638

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-004-026384

THE QUEEN

v

DELVIN EDGAR SMITH

Hearing:         22 October 2008

Appearances: K Glubb for  Crown

G Newell for accused

Judgment:      22 October 2008

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Auckland

G Newell, PO Box 106 444, Kingston St, Auckland

R V SMITH HC AK CRI 2007-004-026384  22 October 2008

[1]      Mr Smith, you appear for sentence this morning having pleaded guilty in the Auckland District Court on 28 February 2008 to some seven charges alleging sexual offending.  There are three counts of indecency with a boy under 12 years for which the maximum penalty is 10 years.  There are also three charges of sexual violation by unlawful sexual connection in respect of the same victim.  The maximum penalty for that is 20 years.  And there is a further charge of sexual violation by unlawful sexual connection involving a second young victim.

[2]      On 24 April 2008, the District Court declined jurisdiction pursuant to s 90 of the Sentencing Act 2002 and you were remanded for sentence in this Court, the District Court Judge having accepted that a sentence of preventive detention was potentially appropriate.

Factual background

[3]      The offending involves two victims;  the first is your son, A, who was at the time of the offending aged between 9 and 11 years.   The conduct covered by the charges involving him spans a period of about 18 months, between August 2003 and March 2005,  and  occurred  in  three  different  cities;  Wanganui,  Levin,  and  New Plymouth.

[4]      A was raised in the Hutt Valley by his mother, from whom you separated before he was born.   In May 2003, you were released from prison in Wanganui having completed a lengthy period of incarceration there.  Thereafter, for the next three months or so, you visited A regularly in the Hutt Valley for the apparent purpose of getting to know him.

[5]      From about mid-August 2003, A travelled to Wanganui to stay with you for the weekend or the school holidays every month or two.   During these visits, you sexually abused him on five or six occasions.  You masturbated in front of him;  then you engaged in simulated sexual intercourse, usually with him on top of you, and usually with both of you unclothed.  Typically, you would then perform oral sex on him.  Although you asked him to reciprocate, he always refused.  This behaviour is

the subject of representative counts of unlawful sexual connection and of indecency with a boy under 12 years of age.

[6]      There are specific charges relating to incidents in Levin and at Mt Egmont where your behaviour followed the same pattern.  These incidents support separate charges of unlawful sexual connection and of indecency.  Ultimately, A threatened to tell his mother about what was occurring and indeed in January 2007, his mother came to know of it and a Police investigation followed.   You were located on 26

November 2007 but refused to discuss the matter with the Police.

[7]      By then you had regrettably found another young victim, D.  He was just six years old at the time.  In November 2007, you befriended his mother who was living in a motor camp with D, and his baby brother.  Over a period of some weeks you spent a great deal of time in the company of this family.   You befriended them, taking them on trips, providing some money and generally assisting them.  Naturally enough, your assistance was appreciated by D’s mother but, of course, your involvement with this family created grooming opportunities.

[8]      On 14 December 2007, D’s mother secured a Housing New Zealand home in Auckland.  She moved into this house on 15 December, with your assistance, and later that evening attended a family birthday, you having encouraged her to go out and to leave her two young children in your care.  During the three hour period of her absence, you woke D, removed some of his clothing, and kissed, licked and sucked his lower body, including his genitals.  Although D objected, you repeatedly assured him that you loved him but concluded by warning him not to tell his mother, otherwise she would be mad at you.

[9]      When D’s mother returned home she found you lying asleep on D’s bed with him.  She noticed immediately that D’s sleep was disturbed and that he appeared to be having a nightmare, in the course of which he appeared to be trying to push something away from his genital area.   D’s mother’s suspicions remained aroused and two days later he disclosed to her in detail what had occurred.  You were spoken to by the Police about that incident on 15 January 2008 and declined to make a

statement.  It is of particular note that this offending occurred very soon after you had been approached by the Police regarding the offending involving your son.

Victim impact statements

[10]     Statements in writing have been made by A and by the mothers of your two victims.   The statements are distressingly familiar in tone and content.   A simply does not want to discuss your offending and has dealt with it in his own way, but he is plainly bitter about what occurred.  Each of the mothers is wracked by guilt about what happened.  Each blames herself for a decision to permit you to be alone with her son.

[11]     A is now 14.  He has had his problems.  They include anti-social behaviour incorporating a degree of minor criminal activity and a concern about maintaining ordinary relationships.

[12]     Your offending against D involved a single incident only and it is possible that the impact on him will be more limited.  However, offending of this sort will inevitably leave a mark on young victims;  often the true impact does not emerge until later in life.

Personal circumstances

[13]     You are 45 years old and of European descent.   The pre-sentence report discloses a somewhat unhappy and indeed unlucky upbringing on a rural South Island property.  Your mother died when you were just nine years old.  Your father resorted to violence from time to time and the family was in fear of him.  A five year old brother was killed in a road accident in your presence when you were just four years old and at 13 you were involved in a road accident in which another person was killed and the driver of your car permanently blinded.  At 16 you were involved in a serious motorcycle accident and at 21 you were thrown from a car and sustained severe head injuries.

[14]     You left school at the age of 14 years and thereafter took a variety of jobs but you were unable to hold down steady employment.   You yourself think that your problems with depression may have affected your performance at work.  You have had several long-term relationships with women and a number of more casual liaisons, but you have been unable to commit yourself to any of your partners.  Four sons have been born of these relationships, including A.

[15]     You have used cannabis for most of your life and in 2003 commenced using methamphetamine.  Alcohol has also played a part in your life.

[16]     You have a substantial number of convictions covering driving, dishonesty, and sexual offences, and some involving violence.   Your prior convictions total 86 in all.

[17]     I need to refer specifically and in detail to your past sexual offending which is of significant importance in light of your current offending.

[18]     On 14 August 1992, you were sentenced in the High Court at Wellington to a term of 15 months imprisonment on a charge of sexual violation.  The complainant on that occasion was your step-son. He was about 12 years old at the time and was one of three children from his mother’s previous relationship.  You and his mother had two further children of your own.  The Court has been provided with a summary of the facts relating to that offending, which took place during 1987 and 1988.  The statement discloses that on a number of occasions during the period concerned you sexually interfered with your step-son.

[19]     On the first few occasions the abuse took the form of manipulation by you of your step-son’s penis with your hand.  On later occasions you performed oral sex on him.   You asked him also to perform oral sex on you but he would not do that.  You admitted touching his penis with your hand in an indecent manner but said when apprehended four years later that you had no recollection of performing oral sex on him.    The  mere  recitation  of  these  facts  indicates  how  similar  to  the  present offending those earlier incidents were in character.  Heron J noted that the offending was unaccompanied by any threat or violence and that it was towards the lower end

of the scale.   He observed that your step-son appeared to be emerging from the experience without undue difficulty and ultimately imposed a term of 15 months imprisonment.   At the same time, he directed that you be seen by the prison psychological service.

[20]     Regrettably,  you  were  soon  before  the  High  Court  again,  this  time  in Auckland on 30 October 1996, for sentence in respect of further sexual offending against children.   The summary of facts is not available but the Court has been furnished with the sentencing notes of Morris J.  They are relatively brief.  However, it emerges from his remarks that on this later occasion there were four victims, two of whom were step-children and two of whom were friends of your step-children. On this occasion, there were both male and female victims.  You were sentenced on six counts, namely of indecent assault on a boy aged between 12 and 16 years; indecent assault on a boy under 12 years;  unlawful sexual connection with a male aged between 12 and 16 years;   indecent assault on a female under 12 years; committing an indecent act with a girl under 12 years; and attempted unlawful sexual connection with a male aged between 12 and 16 years. The range and scale of that offending is readily apparent from that simple recitation of the charges to which you pleaded guilty.

[21]     On that occasion, the Crown sought a sentence of preventive detention but Morris  J,  having  reminded  himself  that  preventive  detention  should  be  avoided where  possible  in  favour  of  a  finite  sentence,  decided  not  to  take  that  option. Instead,  he  imposed  a  finite  term  of  10  years  imprisonment.    In  so  doing,  he observed that:

Given the appropriate treatment which you can receive in jail or in prison, your problems may be overcome.

[22]     You appealed against that sentence.   On 13 November 1997, the Court of

Appeal dismissed the appeal.  In the course of its judgment the Court said this:

The sentence that the appellant received was well within the range available to the Judge.  Sadly, this offending involved a gross breach of trust and the impact on the victims has been enormous.  This was not the first time that the  appellant  had  been  convicted  of  sexual  violation  and,  as  such,  he qualified for preventive detention.   Given the psychiatrist’s report, which

suggested a 50-80% chance of re-offending, the appellant may well consider himself fortunate that he did not receive a sentence of preventive detention.

[23]     The Court noted, as had Morris J, that one of the charges to which you had pleaded guilty was a representative charge.

[24]     The writer of the pre-sentence report prepared for today’s hearing says that although you take full responsibility for what has happened in these present cases, you  believe  that  you  were  affected  by  methamphetamine  at  the  time.    That explanation was repeated in a letter you have written to the Court.  Drug use may well provide a partial explanation but, of course, at the time of your earlier offending there was no such explanation and you concede that you have simply been unable to control yourself in the presence of vulnerable young people.   And of course your drug involvement can never excuse what occurred.  You told the writer of the pre- sentence report that in respect of A, you offended simply because he was available, but it is plain that you knowingly groomed your second victim, D, by ingratiating yourself with his mother and becoming a family friend.  All of this present offending occurred while you were still on parole in respect of the sentence imposed in 1996 and it occurred after you had completed the 33 week Kia Marama treatment programme in 2002 at Rolleston Prison.  You are assessed in the pre-sentence report as having a medium level of motivation to address your offending but as being at a high risk of re-offending.

Sentencing principles

[25]     The real issue this morning is whether you must be sentenced to preventive detention, or whether it will be sufficient for the Court to impose upon you a long but finite sentence of imprisonment.   In the course of reaching an appropriate sentencing conclusion, I must take into account established sentencing principles which include the need adequately to denounce this offending, to hold you accountable to the community, and to induce you to accept responsibility for your behaviour.   There must be an element of deterrence.   Moreover, any sentence I impose on you must be consistent in kind and length with those imposed on others

who have offended in a similar way.   I am obliged also to consider how I might assist in reintegrating you into the community and in facilitating your rehabilitation.

[26]     I referred a moment ago to denunciation.   That is a particularly important element in respect of offences such as these. As was said by the Court of Appeal in R v Accused CA48/88 20 June 1988:

Crimes  of  this  sort  are  committed  against  a  particularly  vulnerable  and helpless section of society who are in fact its most precious assets.

[27]     These two young boys were in your care.  You were responsible for them. They were entitled to look to you for protection and support.  Instead, you sexually abused them.

Crown and defence submissions

[28]     Mr Glubb submits that a sentence of preventive detention is appropriate.  He argues that no other sentence can properly protect further potential victims, and he says that a minimum period of imprisonment of seven to eight years is warranted.

[29]     Should the Court decide that a finite term of imprisonment is sufficient, Mr Glubb  submits  that  a  starting  point  in  the  range  of  seven  to  eight  years  is appropriate, but with an uplift to reflect your earlier offences, before an appropriate discount.  Finally, he argues that a minimum period of imprisonment is necessary, even if a finite term is adopted.

[30]     Mr Newell contends that you should be sentenced to a finite sentence of no more than seven years imprisonment.  He argues that a Court might properly come to the conclusion that a sentence of preventive detention is not warranted, as society can be adequately protected by a lengthy finite sentence.  He reminds the Court also of the need to bear in mind the potential availability of an extended supervision order at the time of your release, if a finite term is imposed.

[31]     Mr Newell points out that you accept responsibility for this offending and say you are motivated to change.  You have pleaded guilty at an early stage, you have

expressed  remorse  in  your  letter  to  the  Court,  and  you  have  intimated  your willingness to engage in further rehabilitative programmes.

[32]     Mr  Newell  accepts  the  aggravating  and  mitigating  factors  identified  by Mr Glubb (I will refer to them shortly), and accepts also a starting point of seven- eight years, but submits that an uplift of one year is sufficient to reflect your previous convictions.  After a discount to reflect your guilty pleas and remorse, he says a final sentence  of  between  six  and  a  half  to  seven  years  imprisonment  would  be appropriate.  He also acknowledges that a non-parole period of up to two-thirds of the finite sentence may be justified.

[33]     If a sentence of preventive detention is nevertheless imposed, Mr Newell has told me this morning he cannot responsibly differ from the submissions made by Mr Glubb in respect of a minimum period of imprisonment;  namely that a term of seven to eight years imprisonment would be appropriate.

[34]     I am grateful to both counsel for the assistance I have derived from their responsible and detailed submissions.

Preventive detention

[35]     Mr Smith, I need to consider now whether a sentence of preventive detention is necessary.  The purpose of such a sentence is to protect the community from those who pose a significant and ongoing risk to the safety of its members.   Its primary function is not punitive: s 87(1) Sentencing Act 2002, R v C [2003] 1 NZLR 30 at

33-34.

[36]     Three legislative pre-conditions must be satisfied before such a sentence can be imposed.   I will turn to those in a moment but I pause to observe that, even if those pre-conditions are established, it does not automatically follow that a sentence of preventive detention must, or even ought to be imposed.   The final outcome remains a matter of discretion.  Neither is a sentence of preventive detention to be regarded as a sentence of last resort.   The relevant factors must be carefully considered.

[37]     Section 87 of the Sentencing Act empowers a Court to impose a sentence of preventive detention only where the following circumstances are established:

a)        The prisoner is convicted of a qualifying sexual or violent offence;

b)The  prisoner  was  18  years  of  age  or  over  at  the  time  of  the commission of the offence;

c)       The Court must be satisfied that the prisoner  is  likely to  commit another qualifying sexual or violent offence if released at the expiry date of the finite sentence that would otherwise be imposed.

[38]     It is agreed that the first two of these requirements are satisfied here.

[39]     The last requirement is, of course, the nub of the matter.   The Court is required,  in  making the  necessary assessment,  to  have regard  to  the  mandatory factors set out in s 87(4).   In the course of undertaking that assessment, it will be necessary to consider the term of an appropriate finite sentence should preventive detention not be imposed.

[40]     The first factor to be considered in terms of s 87(4) is whether a pattern of serious offending is disclosed by your history.   I have already described in some detail your earlier sexual offending.  There is a self-evident pattern. You have preyed on a succession of vulnerable young victims aged between six and 14 years, both male and female.   The nature and extent of your sexual activity with all of these children is similar;  indeed, there was a striking similarity between the facts of the

1992 case and the detail of your offending in respect of A.

[41]     Moreover, the offending for which you were sentenced in 1996 took place not long after you were released from prison, having served the sentence imposed in

1992, and the present offences occurred while you were still on parole in respect of the sentence imposed by Morris J in 1996.  So in each instance you have offended again very soon after your release from prison.  That consideration, together with the

consistent character of your sexual behaviour with young people satisfies me that there is a pattern of serious sexual offending disclosed by your history.

[42]     The next question for consideration in terms of s 87(4) is the seriousness of the  harm  to  the  community  caused  by  the  offending.    I  accept  the  Crown’s submission that the seriousness of the harm caused by sexual offending such as this is obvious and well established.  You have offended against an array of victims aged between six and 14 years, both boys and girls.   Most of the victims are closely related to you but you have offended, both now and earlier in your life, against young people who simply happened to come within your orbit and whom you were able to groom.

[43]     As was observed by the Court of Appeal in R v Murphy CA165/99 28 July

1999 at paragraph [20]:

… where those put at risk are vulnerable young children, even a lengthy finite sentence may amount to an unacceptable risk.

[44]     The  third  consideration  is  the  existence  of  any  information  indicating  a tendency to commit serious offences in the future.  I have already spoken about the pre-sentence report in which the writer expresses the view that your motivation to change your offending behaviour is only moderate and that your risk of re-offending is high.

[45]     There are two current s 88 reports.  The first is from Ms Bellve-Wack, who is a senior clinical psychologist.  She notes you have some health issues;  that you have been diagnosed with bi-polar disorder at some point, that you have regularly suffered from depression, and that you have attempted suicide twice.   She notes that you believe that you did learn something from the Kia Marama programme but that the programme did not address certain of your underlying issues.   She considers that your offending stems from sexually deviant fantasies, possibly relating back to abuse suffered by you as a child.  She notes a degree of lifestyle instability, wide-ranging anti-social offending, excessive drug and alcohol use, impulsivity and inability to commit to steady jobs or relationships.  She refers to the well-known static 99 risk

assessment in which you scored in the high range, meaning that you had a 39% risk of re-offending over five years, and a 45% chance of re-offending over 10 years.

[46]     An alternative SVR-20 assessment combines static and dynamic risk factors related to general and violent sexual offending.  Her assessment in reliance on that instrument  indicates  that  although  you  have  no  proclivity  for  violent  sexual offending, a pattern of sexual deviance is clearly established.   Moreover, she expresses a concern about what she terms an intimacy deficit, namely an absence of a strong and stable support network and your inability to form reliable long-term relationships.   Ms Bellve-Wack says that although the long-term prediction of recidivism is inherently inaccurate, the presence of identified risk factors in your case make it likely that you would commit further offences if released at the present time and that the risk would be likely to persist unless there are significant internal shifts within you.

[47]     The other report writer is Dr Wyness, a consultant psychiatrist.  He notes that you believe that you need a refresher course with Kia Marama to assist you in avoiding further offending.  Dr Wyness also outlines in detail your pattern of drug abuse.  He concludes that you meet the criteria for anti-social personality disorder and for paedophilia.  He is of the view that there is a high likelihood that you will re- offend  in  the  future,  based  in  large  part  upon  the  established  pattern  of  your offending and its repetitive nature.

[48]     I have to assess the nature and extent of the risk you are likely to pose at the conclusion  of  a  finite  sentence  that  would  otherwise  be  appropriate;    so  it  is necessary to consider what that finite term should be.

[49]     The lead offences here are the charges of sexual violation by unlawful sexual connection.  There is no tariff case for these charges.  There are obvious aggravating factors:  the element of abuse of trust, the vulnerability of your victims, the impact on A in particular, the pre-meditation inherent in this offending, and again in respect of  A,  the  duration  and  repetitive  character  of  the  offending.  Your  previous convictions  constitute  a  further  aggravating  factor.    Your  guilty  pleas  and  the remorse you express are, of course, mitigating features.

[50]     The present offending is similar in some respects to R v Haywood [2008] NZCA 172, to R v LHA [2007] NZCA 301, and to R v B [2007] NZCA 437. In my view, an appropriate starting point on the sexual violation charges would be in the vicinity of seven years imprisonment, but I would increase that by two years to reflect the totality of this offending and a further year to recognise the previous offending. That would result in a sentence of 10 years imprisonment from which it would be appropriate to deduct three years to reflect your pleas of guilty and your remorse. That leaves a finite sentence of seven years imprisonment in the light of the principles outlined in R v Brown [2002] 3 NZLR 670, and reaffirmed in R v Taueki [2005] 3 NZLR 372. I would impose a minimum period of imprisonment of four and a half years.

[51]     The final consideration is the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society.  A sentence of preventive detention is always imposed with a degree of reluctance.  To some extent, it marks a failure of society to integrate adequately one of its members into the community. But that said, there are instances in which the protection of the community must come first and that is the principle underpinning the sentence of preventive detention which s 87 authorises.

[52]     The  Court  is  bound  to  consider  the  possibility  that  the  public  will  be adequately protected by the imposition of a lengthy finite sentence of imprisonment, together with the possibility of an extended supervision order:   R v Mist [2005]

2 NZLR 791. But that option is not to be viewed as an “agreeable alternative” to preventive detention: R v Parahi [2005] 3 NZLR 356.

[53]     Section 87(2)(c) empowers the Court to impose a sentence of preventive detention only where it is satisfied that the offender is likely to commit another qualifying sexual or violent offence when released at the sentence expiry date of any sentence that the Court is able to impose. That assessment is always a difficult exercise but I have reached the conclusion in this case that you are likely to commit another qualifying sexual offence at the expiration of the appropriate finite sentence and that the proper sentence in this case is that of preventive detention.

[54]     Your previous convictions have provided you with opportunities to reform. You have undertaken some rehabilitative treatment (including a full Kia Marama course) but you have continued to offend.  I consider that a lengthy finite sentence would not provide sufficient protection for the community.  I take into account the overall  history of  your  offending;  the  fact  that  on  two  occasions  you  have  re- offended soon after your release from prison; the number of victims involved in the present offending and in respect of past offending; the vulnerability of each of those victims, and the fact that your offending has taken place both within a domestic context and more widely, so the community as a whole is affected.   The risk you pose is such that it can properly be met only by a sentence of preventive detention, which I am satisfied is an entirely proportionate response to this offending.

[55]     You have expressed a desire to re-engage in targeted treatment programmes. That is encouraging.   A sentence of preventive detention may well assist you in providing you with something of an incentive to reform. As was pointed out in R v Bryant CA236/03 16 December 2003, successful participation in a course of treatment such that you will not pose an undue risk to the safety of the community if released, will largely determine your final release date.  To that extent it may be said that you will control your own destiny.

[56]     For these reasons, I have concluded that a sentence of preventive detention must be imposed.

Minimum period of imprisonment

[57]     The law provides for a five year minimum period of imprisonment although this may be increased either to reflect the gravity of the offending (s 89(2)(a)) or for the purposes of ensuring the safety of the community in the light of your age and the risk you pose (s 89(2)(b)).  The Court must also consider whether any longer period is required for the purposes of the safety of the community.  A helpful approach to the assessment of the appropriate minimum period of imprisonment is discussed in R v Johnson [2004] 3 NZLR 29 at paragraph [31].

[58]     In all the circumstances of this case, I consider that the appropriate minimum period of imprisonment is seven years.  That minimum period is necessary to reflect the need to protect the community from you.  I believe that you present a very real danger to the community at large at present by reason of the fact that your victims include not only family members but those outside the family; that they have been both male and female; that they have all been vulnerable; and that you appear to be unable to avoid temptation for any length of time after your release from prison.

Sentence

[59]     You are sentenced to preventive detention on each of the four charges of sexual violation by unlawful sexual connection.  In each instance you are to serve a minimum period of imprisonment of seven years.

[60]     On the representative charge of indecency with a boy under 12 years, you are sentenced to six years imprisonment.

[61]     On the remaining charges of indecency with a boy under 12 years, you are sentenced to five years imprisonment.

[62]    All of the terms of imprisonment are to run concurrently which means preventive detention and a minimum sentence of seven years.

C J Allan J