R v Smith HC Auckland CRI 2008-092-005452

[2008] NZHC 2480

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-092-005452

REGINA

v

KARL RICHARD SMITH

Hearing:         5 August 2008

Counsel:         K J Glubb for Crown

L Hughes for Prisoner

Judgment:      5 August 2008

SENTENCING REMARKS OF FOGARTY J

[1]      Mr Smith you appear for sentence having pleaded guilty to one charge of sexual violation by rape, one representative charge of sexual violation by unlawful sexual connection and one charge of indecently assaulting a child under 12 years of age.

[2]      Briefly, you offended against two twin sisters.  Your father was a friend of their parents and the offending occurred when the victims visited your address with their mother.  I am satisfied that the offending occurred on numerous occasions.  I understand that your victims are present in Court today and I do not propose to go

through and discuss in any detail what took place.

R V SMITH HC AK CRI 2008-092-005452  5 August 2008

[3]      The Crown are seeking a sentence of preventive detention.  The first task that I have to address is what would be a finite sentence were you not sentenced to preventive detention.  Your counsel has submitted, responsibly, that a starting point of  six  years  will  also  need  an  uplift  to  acknowledge  the  aggravating  features including the vulnerability of these young girls and the breach of trust arising out of the social relationship between your family and the victims’ family.   A minimum period of imprisonment would, in my mind, be clearly involved and equally the reports from the clinicians, the psychologist and the psychiatrist, indicate that it is virtually certain that there would be an extended supervision order at the end of that term.  So in the round, were you sentenced to a finite term of imprisonment I would expect that you would have a minimum term of imprisonment of at least four years and an extended supervision order.  That is the broad comparison that I make with the other option of a sentence of preventive detention.

[4]      The Crown have submitted to me that when all the factors in your case are taken into account there can be no doubt that a sentence of preventive detention is needed to protect the community.  I agree with that submission and I am going to do my best to state in summary terms why I also have that view.

[5]      There is a long history of sexual offending.   It has, over a period of time, escalated and it is of particular concern to me that that is not just a reflection of your criminal history but it is the considered opinion of the clinicians.   In short, rather than you posing a diminishing risk to the community, your history, I am afraid, is one of posing a greater risk to the community.

[6]      The psychologist says that your recidivist rate indicates that you have never been  able to  remain  in  the community offence free for  long and  the  probation supervision arrangements have not prevented you in the past from offending and recidivism has been speedy.

[7]      The psychiatrist says at present your risk of re-offending must be seen as high.  Both the psychologist and the psychiatrist are obviously of the view, though couched  in  cautionary  language  that  they  tend  to  use,  that  they  are  not  at  all optimistic that you will be able to control what has been impulsive and escalating

offending in the future and they are relatively guarded about the potential impact of programs that you may take.

[8]      I am required under s 87(4) of the Sentencing Act 2002 to take into account a number of factors:

(4)      When considering whether to impose a sentence of preventive detention, the court must take into account—

(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 future;

and

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

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

[9]      The first is any pattern of serious offending.  Your counsel argue that there was no pattern.   The sexual offending has been varied starting off with peeping, including bestiality and in that sense can be said not to fall within a predicted pattern. But there is a pattern in the sense of a continuum of sexual offending which I have indicated is escalating in seriousness rather than the reverse.

[10]     Moving  on  to  the  second  category,  there  is  no  doubt  at  all  about  the seriousness of the harm that you have caused to your victims.  Again, I see no point in going through that in any detail here today except to say the Court is very aware of that.

[11]     Moving on to the third factor, as I have already indicated, the clinicians have very serious concerns about your tendencies to commit serious offences in the future.

[12]     The  fourth  factor  is  your  effort  to  address  the  cause  and  causes  of  the offending.   You have limited educational achievements and capabilities and a difficulty in reading and this may well have prevented you from completing any

courses in the past during your long periods of imprisonment.  I am not satisfied that there has been any failure by you to address the cause and causes of the offending.  I am  more  of the  view  that  this  is,  as  it  were,  your  condition.    It  may be,  and sometimes happens, that as you grow older,  you are now in your late 30s, you will be able to control your impulsive behaviour in the future.  The fact that you have not completed, and in a sense have not had a chance to complete, programs designed to try to control this behaviour is not a reason why you should not be given a sentence of preventive detention.

[13]     Finally,  I  come  to  the  principle  that  a  lengthy  determinate  sentence  is preferable if this provides adequate protection for society.   I am concerned that a lengthy determinate sentence, and assuming that there would be an extended supervision order, would not provide adequate protection.  As Mr Glubb submitted for the Crown, the advantage of a preventive detention is that there would be a permanent ongoing monitoring and I am of the view that that is needed to provide adequate protection for society.   I also, however, agree with Mr Glubb that in your case the minimum period of five years imprisonment is the appropriate duration.  As I said before Mr Smith, these conditions of the sort that you have, can change over time and it is possible, both by combination of merely growing older and  also opportunities that may be given to you in prison to participate in programs, that you will improve to the point where it may be safe to release you into the community under strict conditions and I think you should be given the opportunity to work towards that, and an incentive to do so.

[14]     I have not covered in these remarks so far the previous considerations by the sentencing Judges including by Laurenson J of a sentence of preventive detention but I also accept the submission of Mr Glubb that when all the offending that has come to light is put together it reinforces and has formed part of my overall judgment that this is in fact a clear case for a sentence of preventive detention.   Accordingly, I do impose that sentence with a minimum period of five years, in respect of all charges.

[15]     Mr Smith it is not a pleasant duty to impose this sentence and I do hope that you will be given opportunities in prison to try and make a better life for yourself.

Solicitors:
Meredith Connell, Auckland, for Crown
Lynn Hughes, Manukau City, for Prisoner