R v Stevens
[2021] NZHC 2026
•5 August 2021
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2019-019-007418
[2021] NZHC 2026
THE QUEEN v
JAMES DILLON STEVENS
Hearing: 5 August 2021 Appearances:
D McWilliam for the Crown R Webby for the Defendant
Judgment:
5 August 2021
SENTENCING NOTES OF POWELL J
R v STEVENS [2021] NZHC 2026 [5 August 2021]
[1] James Stevens, you appear for sentence having been found guilty at trial of sexual violation by unlawful sexual connection (“the sexual violation”)1 and attempted unlawful sexual connection with a boy under 12 (“the attempted sexual connection”).2 You had also previously pleaded guilty to a charge of breach of sentence of supervision.
[2] As you are aware the focus of your trial was on the second of these offences, the attempted sexual connection. You were well known to the victim, then aged 11, and his family who had initially welcomed your apparent friendship, although you had subsequently been asked to stay away. On 29 November 2019, you rode your bike several times along the street where the victim lives in an effort to meet with him. You eventually made contact after he had left the local swimming pool and was walking home.
[3] About 100 metres from the victim’s home you took the victim down a driveway. At the rear of the house at the end of the driveway there was a deck, and you proceeded to sit in a deckchair. You pulled down your pants and were in the process of getting the victim to have oral sex with you, that is putting your erect penis into his mouth, when a neighbour, who had seen you both go down the driveway, intervened. When confronted, the victim ran away, and you pulled up your pants and left the property.
[4] When Police were called the victim gave an evidential interview and in the course of that interview stated that he had previously had oral sex with you. This account, confirmed in the victim’s evidence at your trial, provided the basis for the verdict on the first charge, the sexual violation, although little further detail was provided.
[5] There can be no doubt that the victim in this case, and indeed his family, have suffered significant harm as the result of your offending. This is apparent not just from the victim impact statements that have been referred to today which I have received from both the victim and his grandmother, but the effects are also clear from the
1 Crimes Act 1961, ss 128(1)(b) and 128B. Maximum penalty 20 years’ imprisonment.
2 Crimes Act 1961, s 132(2). Maximum penalty 10 years’ imprisonment.
various psychological and psychiatric reports before me, particularly the report of Ms Young. The victim has described feeling bad about himself because of what has happened. He says he “struggle[s]” mentally” with what you did to him. He is afraid of you and often worries that you are going to come after him and his family and do the same thing to him again, or that you will do it to somebody else in his family. Although I acknowledge that the victim did have issues before the present offending, the victim’s grandmother says she has noticed how her grandson’s behaviour has changed for the worse since he met you. She believes you have “messed him up” and that he is “broken” because of you.
Approach to sentencing
[6] I begin my task in sentencing you by explaining what I have to do today and the approach that I will take. As you have heard in the course of this hearing, in my discussions with counsel, there are a number of legal issues that need to be considered as I sentence you today and I apologise in advance that I have to go through this technical, legal talk. You may have difficulty following what I am going to say but it is necessary for me to say it to ensure that these matters are properly covered.
[7] I start with the Sentencing Act 2002. This Act sets out the purposes and principles of sentencing.3 The purposes of sentencing you today are to hold you accountable for the harm that you have done, to promote in you a sense of responsibility for, and acknowledgement of, that harm, to denounce your conduct, to deter you and others from engaging in such conduct, and of particular importance today, to protect the community. I also need to consider the gravity of your offending, including the degree to which you are responsible, the seriousness of your offending and the impact on the victim. I note that I must impose the least restrictive sentence appropriate in the circumstances.
[8] As you have heard me discuss with counsel, in many ways the principal issue I must address is whether I should sentence you to a finite term of imprisonment, which means a specific number of years in prison, or whether it is necessary to sentence you to preventive detention. If you were sentenced to preventive detention,
3 Sentencing Act 2002, ss 7 and 8.
you would not only have to serve a specified number of years in prison, known as a minimum period of imprisonment, but after that, you would only be released when the Parole Board decides that you are no longer a threat to the safety of the community.
[9] Both options require calculation of an appropriate term of imprisonment with regard to the applicable legal framework – with regard to the law. I then must consider your history and, in particular, your risk of further offending to determine whether the finite sentence is sufficient or whether preventive detention is required.4
Finite sentence
[10] I begin the first part of the exercise by calculating what a finite sentence for you would be. Normally this would follow a two-stage process,5 which involves calculating what is referred to as the “starting point” on the most serious offending. The starting point is a term of imprisonment that would reflect the seriousness of your offending and this is then adjusted up and down to take into account your relevant personal circumstances, both positive and negative.
[11] In your case, as you have heard me discuss with the lawyers today, the process is somewhat different. This is because the attempted sexual connection is a third- strike offence in terms of the Sentencing Act: you committed the attempted sexual connection offence in November 2019, after you had received a second-strike warning from the Courts in August 2019.6 The result is that under the Sentencing Act I have to sentence you to the maximum sentence for that offence, which is a term of 10 years’ imprisonment.7 I have no discretion to sentence you to any lower term of imprisonment.
[12] The same section of the Sentencing Act goes on to specify that this sentence must be served without parole “unless the court is satisfied that, given the
4 Section 87.
5 Moses v R [2020] NZCA 296.
6 The first-strike warning was given in January 2012 following Mr Stevens’s conviction for indecent assault of a girl under 12. The second-strike warning in August 2019 followed his conviction for indecent assault of a girl under 16.
7 Sentencing Act 2002, s 86D(2).
circumstances of the offence and the offender, it would be manifestly unjust to make the order”.8
Manifest injustice
[13] I am therefore given a discretion to decide whether it would be “manifestly unjust” to order you to serve 10 years in prison without parole.9 There are two related questions I need to consider here – what your sentence would be if the attempted charge was not a third-strike offence and, in the light of that calculation, whether sentencing you to serve that period without parole would be unjust in terms of the circumstances of your offending and your circumstances as the offender.
[14] Dealing with the first of these issues, it is clear that had the attempted sexual connection not been a third-strike offence it would not be the lead offence for sentencing purposes. Instead I would sentence you by taking the sexual violation as the lead charge because that is the more serious offending, with a maximum term of imprisonment twice that of the attempted sexual connection. The starting point for the sexual violation is required to be assessed under a Court of Appeal judgment called R v AM, which provides guidance to Courts in sentencing sexual offending.10 That judgment set a number of different sentencing bands that apply based on the seriousness of particular offending, with band one encompassing less serious offending and band four the most serious. As you have heard me discuss with both Mr McWilliam, on behalf of the Crown, and Ms Webby, counsel agree that the starting point for the sexual violation should be seven years’ imprisonment. Mr McWilliam considers that you fall within the mid to top of rape band one in R v AM,11 whereas Ms Webby has thought you came towards the bottom of rape band two. Overall, I accept Mr McWilliam’s analysis of what the aggravating factors were as follows:
(a)Premeditation: Though we only have few details about the sexual violation, we can assume that there was a high level of premeditation and planning to it. You knew the victim well and knew he was
8 Section 86D(3).
9 Section 86D(3).
10 R v AM [2010] NZCA 114.
11 At [93]-[97].
vulnerable because of his young age and difficult upbringing. You maintained a long-term “friendship” with him, you ingratiated yourself into his family and got him and them to trust you, and you continued seeing him even though you had been told to stay away. The fact that the sexual violation almost went undiscovered also suggests planning went into your offending.
(b)Vulnerability is present: The victim would have been 10 to11 years old at the time and, as you were aware, was vulnerable for other reasons as well.
(c)Harm has been caused, as I noted at the outset.
(d)Degree of the violation is also relevant: In particular you made the victim perform oral sex on you, and that means that your offending is assessed under the sentencing bands for rape set out in R v AM.
[15] From that seven years’ starting point, I accept Mr McWilliam’s submission that it is appropriately uplifted by one year to recognise the attempted sexual connection.12 That takes the starting point to eight years.
[16] I then must consider whether that starting point should be further adjusted based on your personal circumstances. In undertaking this part of the exercise, I accept that an aggravating factor are your previous relevant convictions, specifically your three convictions for indecent assault on a girl under 12 and the conviction for indecent assault on a girl under 16. Overall, I conclude an uplift of one further year is appropriate, bringing it to nine years in prison.
[17] As to mitigating personal factors, I have considered whether there is any basis to grant you a discount for your particular circumstances. There is clearly no basis for any discount for remorse, as you consistently tried to minimise the harm you have
12 One year being appropriate having regard to the nature and aggravating factors of the attempted sexual connection discussed below at [23] (premeditation, harm and vulnerability, in addition to the scale of the offending, with Mr Stevens having offended against the same victim twice within a period of some months).
caused to the victim and stated that he has lied about what happened. Likewise, I cannot grant any discount for efforts to rehabilitate to date and there is some information that has been put before me in the psychological and psychiatric reports to that effect. While you have had some contact with psychologists at some junctures it is clear that that has been short, curtailed and unsuccessful.
[18] More importantly, as you have heard, I have before me psychiatric and psychological reports from Dr David Brunskill, Corinne Young, Dr Caleb Armstrong and Dr Jon Nuth which have provided a considerable amount of detail about your personal circumstances. They record that not only did you suffer from perinatal hypoxia after the cord was wrapped around your neck at birth; you were also born with the rare congenital Moebius Syndrome which has affected your physical appearance and development. You also are required to take medication for ADHD. You were previously diagnosed with an intellectual disability, and although your IQ has now been assessed as being too high to meet that criteria, you are still assessed as being of low/average IQ.
[19] These various physical, psychological and cognitive issues have given rise to a range of difficulties for you throughout your life and I think that is acknowledged by all of the different assessors who have provided reports to me today. While those assessors have observed that you can be relatively good in expressing yourself and communicating with others, you have on the other hand displayed autistic type traits in which you lack social skills and struggle with reading people and situations. Dr Nuth, in particular, has found that your decreased social skills, and your problems with self-control, your need to seek attention, your impulsivity and your lack of empathy are all directly connected with your offending.
[20] Having discussed these issues with Ms Young, Dr Nuth and counsel at considerable length today, I accept that the various issues that have been identified have had an effect on your offending and will also result in your imprisonment being made disproportionately harder. In those circumstances, I consider a discount of 20 per cent would have been appropriate. This brings the notional sentence on the sexual violation to just over seven years’ imprisonment.
[21] This sentence too would be required to be served without parole, as the sexual violation is a second-strike offence.13 Unlike with third-strike offending, there is no discretion to reduce the non-parole period further.
[22] Given that the sentence you would have received if the attempted sexual connection was not a third-strike offence is around seven years’ imprisonment, I must evaluate whether sentencing you to 10 years without parole on the attempted sexual connection because of the third-strike offending is manifestly unjust. Manifest injustice is a high threshold.14 It is not enough for it to be just “disproportionate” to the sentence you would have received, it must be “grossly disproportionate” for an offender to serve the full term without parole,15 meaning the case for a finding of manifest injustice needs to be “clear and convincing”.16
[23] In your case, I accept a 10-year sentence without parole is plainly disproportionate to the term you would have otherwise received for the present charges. It is equally clear that the three-year difference between a sentence on the sexual violation and the attempted sexual connection would not of itself be grossly disproportionate particularly when I take into account that as with the sexual violation, the attempted sexual connection was serious offending against a vulnerable child and had serious effects on that child, the level of premeditation that I have previously noted, and the fact that the attempt only failed because you were interrupted at the last possible moment. Likewise, I note your prior sexual offences against children.
[24] Despite that, I accept that the extensive difficulties we have discussed at length in the hearing today, the cognitive, acquired and learned behaviours that I have detailed slightly earlier in these sentencing notes, and the difficulties that these have resulted in, have the collective result of making the sentence that would be imposed for the attempted sexual connection to be served without parole grossly disproportionate and
13 Section 86C(4)(a).
14 See a summary of the considerations Courts take into account when assessing whether there would be manifest injustice in any particular case in R v Ratima [2017] NZHC 252 (referring to R v Harrison [2016] NZCA 38) at [20] and R v Waitokia [2018] NZHC 2146 at [8].
15 See R v Pomee [2018] NZHC 2891.
16 R v Waitokia [2018] NZHC 2146 at [8].
thereby manifestly unjust.17 Instead, I conclude that the minimum period of imprisonment for a finite sentence should be seven years’ imprisonment.
Summary – Finite sentence
[25] In summary, I conclude that a required finite sentence would be 10 years’ imprisonment with a minimum non-parole period of seven years. I now turn to consider whether I should sentence you to preventive detention.18
Preventive detention
[26] Under the Sentencing Act, I can impose a sentence of preventive detention where, as in your case, an offender has been convicted of a qualifying sexual offence and I conclude the offender is likely to commit another qualifying offence if released at the end of the finite sentence.19 In considering whether preventive detention is appropriate I must consider the following five factors in particular:20
(a)whether your history shows you have a pattern of serious offending;
(b)the seriousness of the harm to the community caused by your offending;
(c)information indicating you have a tendency to commit serious offences in the future;
(d)the absence or failure of efforts by you to address the causes of your offending; and
(e)the principle that it is preferable to sentence you to a lengthy finite sentence if this would be sufficient to protect the community from you.
17 See for example Fitzgerald v R [2020] NZCA 292 (manifest injustice found where offender’s longstanding mental conditions would render a sentence of imprisonment disproportionately severe); R v Sheers [2020] NZHC 1596 (manifest injustice found where offender suffered from Fetal Alcohol Spectrum Disorder) and see also, in the context of imposing the minimum period of imprisonment prescribed by statute for murder, R v Marinovich [2020] NZHC 1160 (manifest injustice where offender had Autism Spectrum Disorder).
18 Sentencing Act 2002, s 86D(7).
19 Section 87(2).
20 Section 87(4).
[27] Going through these various factors, I conclude that the evidence is overwhelming that you will be likely to commit another qualifying offence at the end of a finite sentence.
[28] It is apparent that you have a pattern of serious offending. As the pre-sentence report notes, your criminal history is “littered with compulsive behaviour and continuous serious convictions”. Including the current offences, you have committed six qualifying sexual offences against five different children over the last 11 years, (four females and one male), which clearly represents serious harm to the community. In addition, you also have multiple previous convictions for arson, burglary, violence and dishonesty offending. The assessors’ reports before me and indeed the various assessment tools referred to in those reports, including RoC RoI and Static-99R, all indicate strongly that you are at a high, and possibly increasing, risk of committing further serious offending in the future. You are identified as posing a threat to both male and female children, especially children you have access to through family and friends. You seem to have little insight with regard to your offending. Dr Nuth says it is unclear whether you genuinely wish to harm others, but clearly you have done so through “coercion and grooming.”
[29] Ultimately, it is clear that you are at a very high risk of reoffending and there is no guarantee that any rehabilitation will lower that risk. As I mentioned earlier, it does not seem that you have not been well motivated to participate in rehabilitative programmes in the past. Even if you were, the health assessors consider that you require specialised rehabilitation adapted to your complex needs if you are to reduce your risk of reoffending and that is unlikely to occur from mainstream programmes.21 Overall they agree that if you do not receive that help, your risk will remain high, and even then Dr Nuth is unsure that any form of rehabilitation will actually lower that risk.22
21 For example, Ms Young states an adapted sex offenders’ programme would be “essential” and that it would be good for Mr Stevens to regularly see a Corrections psychologist. She considers that it would be beneficial if he could be helped to become a more functional member of the community but has reservations as to whether this is possible.
22 Dr Nuth opines that Mr Steven’s problems may at this point in time be “pervasive and not amenable to psychological intervention.”
[30] Taking these various matters together, I consider that if I sentenced you to a finite term of imprisonment today, you would continue to pose a serious risk to the safety of the community after you were released. I conclude that this would be so even if you were placed under an extended supervision order (“ESO”). As I have discussed with the assessors and with counsel, whether you would have an ESO imposed is not an issue for me to consider today; it is something that would take place at the end of your sentence and it is by no means guaranteed that it would be imposed.23 In any event, I am not satisfied it would sufficiently address the wide range of serious risks that you pose. For example, I note that the present offending on which you are being sentenced today occurred while you were on supervision.
[31] As you have heard your counsel, Ms Webby, has argued passionately today that preventive detention not be imposed. She has emphasised that you have not received treatment that would address your complex needs. She argues that if you were sentenced to preventive detention, you may not be given the help that you need and in any case you would not qualify for rehabilitation until you were nearing the possibility of parole – in other words, you will likely “be left on an indefinite waiting list with a long sentence” and this would in turn impose a burden on you that you ultimately could not meet, given the various issues that you have.
[32] As I discussed with counsel, in the case of Lake v R the Court of Appeal has however recently commented that the Department of Corrections has a legal obligation to provide prisoners with the necessary rehabilitation regardless of the length of their sentence.24 The same Court made it clear that whether or when you will be offered specialised programmes suitable for your needs is not something that this Court can know or be influenced by when sentencing you.25 Those decisions are made by the Chief Executive of Corrections and depend on the Department’s resources and ability to deliver those programmes.26
23 See the criteria required to be met before an ESO is imposed, recently discussed in Hofmann v Department of Corrections [2021] NZCA 256.
24 Lake v R [2021] NZCA 352 at [25].
25 At [26].
26 At [26]; Corrections Act 2004, s 5(1)(c).
[33] In the end, this Court cannot know whether you will be offered the right rehabilitation and, perhaps more importantly, whether, even if it is provided, it will lower your risk. At the moment all that is known, based on the psychiatric evidence available, is if your risk is not lowered, you will continue to pose a serious threat to the community and, in particular, to vulnerable children within that community. As a result, I conclude that, in your case, I must sentence you to preventive detention because this is necessary to protect the public.
Minimum period of imprisonment
[34] Having determined that preventive detention is appropriate, the final stage of the sentencing exercise is to determine the minimum period of imprisonment before you are eligible for parole.27 This requires me to impose the same minimum period of imprisonment as I would have imposed had I sentenced you to a finite sentence of imprisonment, “unless the imposition of the minimum period would be manifestly unjust”.28 For the reasons I have already set out, I have determined the finite term of imprisonment of 10 years served without parole was manifestly unjust and therefore set the minimum period of imprisonment before you are eligible for parole at seven years.
Sentence
[35]Mr Stevens, please stand.
[36] On the charge of attempted unlawful sexual connection with a boy under 12, you are convicted and sentenced to preventive detention with a minimum period of imprisonment of seven years. On the charge of sexual violation by unlawful sexual connection, you are sentenced to seven years’ imprisonment, to be served concurrently.29 On the final charge of breaching a sentence of supervision, you are convicted and discharged.
27 Sentencing Act 2002, s 89.
28 Section 86D(7)(b).
29 Incorrect figures were noted at this point at sentencing. The correct figures were however clear from the foregoing discussion in these sentencing notes.
[37]You may stand down.
Powell J
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