R v Stevens
[2016] NZHC 1574
•12 July 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-092-13359 [2016] NZHC 1574
THE QUEEN
v
MICHAEL LESLEY STEVENS
Hearing: 12 July 2016 Appearances:
E McCaughan for Crown
M Allen for DefendantSentence:
12 July 2016
SENTENCING NOTES OF TOOGOOD J
R v Stevens [2016] NZHC 1574 [12 July 2016]
[1] Michael Lesley Stevens, you appear for sentence after pleading guilty to: (a) Eight charges of knowingly possessing objectionable publications;1 (b) One charge of doing an indecent act on a child under 12;2
(c) One charge of indecent communication with a young person under
16;3 and
(d) Two charges of breaching an extended supervision order.4
[2] The charges of knowingly possessing objectionable publications and doing an indecent act on a child both carry maximum penalties of 10 years’ imprisonment. The Crown, however, has also asked me to consider imposing an indeterminate sentence of preventive detention on the charge of doing an indecent act, basing its request on the seriousness of your offending and the future risk to community safety which would follow from your release after serving a finite sentence.
[3] I will outline the circumstances of your offending and establish what would be a suitable finite sentence before considering the possibility of preventive detention as an alternative.
Circumstances of the offending
[4] The victim of your offending was a nine-year-old boy from the Wellington area. He was not known to you. On 20 October 2015, you initiated contact with him through an online game which enables its players to communicate with each other though a chat forum. Using this forum, you instructed the victim to open a Skype
account so you could continue to discuss gaming matters.
1 Film, Videos, and Publications Classification Act 1993, s 131A; maximum sentence 10 years’
imprisonment.
2 Crimes Act 1961, s 132(3); maximum sentence 10 years’ imprisonment.
3 Crimes Act, s 124A; maximum sentence 3 years’ imprisonment.
4 Parole Act 2002, s 107T; maximum sentence 2 years’ imprisonment.
[5] Over the following days, you chatted with the victim through the Skype account using typed messages. After about a day, you asked the victim to send you a picture of his penis. He initially refused, but you continued to talk with the victim about that and you encouraged him to masturbate to ejaculation. After you begged the victim, he eventually sent you three photographs showing his penis, body and face.
[6] You continued to converse with the victim over the following days, sending messages about his penis, including the statement “you spend the whole night playing with it now its sore and you can’t take a video message.” Your contact with the victim ended only after it was discovered by the victim’s family on
8 November 2016. In a letter to your former partner, you described the challenge or “game” of engaging the victim, and other boys, in sexual conversation so you could use the resulting material as a masturbatory aid.
[7] On 1 December 2015, the Police executed a search warrant at your address and seized the devices which you use to access the internet. On those devices, the Police found numerous images containing objectionable content, predominantly involving young pre-pubescent boys as young as 4 years’ old. In total, there were
1,474 objectionable still images and eight objectionable videos. You had organised this material into folders, each containing around 300 images which you had named in numerical order. For charging purposes, you were charged on the basis of seven images and one video recording as representative of the total.
[8] After you were charged, you voluntarily provided information to the Police that there were further devices in your possession that the Police had not discovered. On these devices, the Police found a further 3,267 unique objectionable images. Although the Police have not laid further charges in relation to this material, counsel have agreed that the Court should acknowledge the content of the images, for sentencing purposes, as well as the fact that you voluntarily disclosed their existence.
[9] The more serious content involved penetration of the boys shown, including by adult male penises. Two of the publications involved sadism or bestiality against children.
[10] The Crown has been provided with a statement written by the parents of the victim. In it they describe how the victim felt ashamed and embarrassed when the offending was discovered, and how it affected his confidence. He did not want to go to school because he was worried that others would find out what had happened. He thought it was his fault and that he had done something wrong. Although they say the victim has slowly returned to normal, his parents have an understandable concern that the effects of your offending may surface at a later stage in their son’s life.
Personal circumstances and previous offending
[11] Mr Stevens, you are a single Pakeha male aged just over 30. I note that you had a happy upbringing in Sydney until the age of eight, when you learned that your step-mother was not your biological mother. This had a profound effect on your relationship with her, and you indicate her treatment of you from this point became extremely negative. Changes in your family circumstances around this time also meant that your lifestyle became increasingly unstructured.
[12] You moved back to New Zealand around the age of 10, where you were treated extremely abusively by your mother. You were placed in CYFS care around the age of 12, after a brief period of running away from home and living on the streets. You spent large periods of your teenage years living in youth justice residential facilities, during which you were sometimes subject to traumatic treatment.
[13] You report being sexually abused by older teenage boys around the age of nine. Around this time, you also began to have sexual contact and “relationships” with close family members of a similar age. You suffered other incidents of sexual abuse during your early teens, and also committed sexual assaults on other peers.
[14] From around the age of 16, you became involved with an online community for young gay males. You became an administrator of this community, and were responsible for excluding older men who may be perceived as sexual predators.
This, however, led to you making a connection with older paedophiles, which drew you into a paedophilic subculture where you became exposed to, and developed an interest in, young boys sexually.
[15] Your first detected sexual offending occurred in 2004, when you were
18 years old. You were convicted of unlawful sexual connection with a male under
12 and indecent assault on a boy under 12. While staying at with the parents of the
8 year old victim, you offered him money if he came into your bed. After offering to pay him more money, you fondled his genitals and anus with your hands and mouth for a period. The victim eventually left your bed disturbed, and later informed his parents.
[16] For that you were sentenced to three years and nine months’ imprisonment. That was imposed cumulatively on other unrelated sentences for aggravated robbery and burglary, resulting in an end sentence date of 10 August 2011.
[17] On 8 August 2011, concerns about the risk of further offending led to your becoming subject to a 10 year Extended Supervision Order, or ESO, which enabled the Department of Corrections to put conditions on your lifestyle following your release. The order included conditions that you could not associate with, or contact, a person under the age of 16 years, unless very strict conditions were complied with. There was also a condition that you must not use any computer or electronic equipment to access the internet without written approval of your probation officer.
[18] Your current offending was in direct contravention of these conditions. I also note that you were convicted and sentenced for breaching the ESO on other prior occasions – once when you accessed the internet without permission, and once when you cut off your electronic monitoring bracelet and absconded. It is significant, however, that you report having been over three and a half years following your release from prison in a committed healthy and meaningful relationship with a woman with whom you have a two-year-old son. You say you had no interest in young boys during this period. You attribute the ending of the relationship to the stress of your involvement with court matters and the denial of access to your child through Corrections Department intervention. Your former partner says also that the
denial of access caused you to become depressed and paranoid. She confirms that she shared a warm loving relationship with you which she regarded as sexually fulfilling and says you were an egalitarian and supportive parent.
Finite sentence
[19] I now turn to consider what would be an appropriate finite sentence for your offending. In doing so I must determine a sentence which would condemn your actions, deter you and others from committing similar offences, hold you accountable for the harm you have caused, and protect the community.5 However, I must also consider the prospect of your rehabilitation and integration into society.6
Knowingly possessing objectionable publications
[20] Because I consider the objectionable material charges on the one hand, and the indecency charge on the other, would attract cumulative sentences, I depart from the usual approach of addressing a lead offence first.
[21] In considering appropriate sentences for knowingly possessing objectionable publications our Court of Appeal has endorsed a sentencing guideline from the United Kingdom as a useful guide for New Zealand judges.7 I need to explain it to you. The 2007 version of the guideline outlines five categories of child pornography, from least serious to most serious:
(a) Level 1: is for images depicting nudity or erotic posing, with no sexual activity.
(b)Level 2: is for images showing sexual activity between children or solo masturbation by a child.
(c) Level 3: is for images showing non-penetrative sexual activity between adults and children.
5 Sentencing Act 2002, s 7(1)(a), (e), (f) and (g).
6 Section 7(h).
7 R v Zhu [2007] NZCA 470; R v Clode [2008] NZCA 421, [2009] 1 NZLR 312.
(d)Level 4: is for images showing penetrative sexual activity between children and adults.
(e) Level 5: is for images showing sadism or bestiality.
[22] The UK guidelines suggests a sentence of six to 12 months’ imprisonment for
the possession of a small number of images at levels 4 or 5, and a sentence of
12 months to three years’ imprisonment for the possession of a large amount of material at those levels. At that time the maximum penalty for such offending was five years’ imprisonment which was also then the position in New Zealand.
[23] The classifications set out in the guideline have been adopted in New Zealand but the Courts here have held that a degree of caution and flexibility is warranted when considering the length of sentences in the guideline in the New Zealand context.8 This is particularly necessary now because in May last year the New Zealand Parliament doubled the maximum penalty for offences involving the possession of objectionable material from five years’ imprisonment to ten years’ imprisonment.9 This indicates Parliament’s views as to the seriousness of this type of offending.
[24] There do not appear to have been any High Court or Court of Appeal sentencing decisions for child pornography charges since the maximum penalty was increased. The Crown submits that, given the maximum penalty now available and the relatively low number of level 4 and 5 images in your possession, an appropriate starting point for these charges is two years’ imprisonment.
[25] On your behalf Ms Allen has referred me to two cases which involved similar offending,10 and she has accordingly suggested a starting point of between 18 and
24 months’ imprisonment. I adopt the starting point of two years’ imprisonment
concurrent on each of the objectionable publications charges. In doing so I take into account the following aggravating features of your offending:
8 Stewart v Department of Internal Affairs [2014] NZHC 2209.
9 Film, Videos, and Publications Classification Act, s 131A.
10 Doran v Police [2012] NZHC 468; Thompson v Police [2012] NZHC 2029.
(a) You had a large quantity of objectionable images. The Police seized a total of 4,741 unique objectionable images which were in your possession.
(b)The material in your possession is seriously offensive. The eight representative images presented for charging purposes are within the levels 1 to 4 of the UK guideline. The victims in the images are as young as four years’ old. Two of the videos seized by the Police were in level 5, and involved sadism and bestiality against a young child.
(c) Your offending involved a high degree of premeditation. You did not merely view the objectionable images, you downloaded them and organised the material into folders, sorted into a particular order.11
(d)The possession of child pornography causes inestimable harm to the children depicted - who are re-victimised every time their abuse is viewed. The possession of such images also fuels demand for its production, leading to the further abuse of children.
The Crimes Act charges
[26] There are no tariff cases for your Crimes Act charges of doing an indecent act on a child under 12, and of indecent communication with a young person under 16. Your offending is somewhat unusual in that the victim was never in your physical presence. I have been referred to only one other case involving similar offending.12
[27] In light of this case, the Crown submits that an appropriate starting point of
18 months’ imprisonment for the Crimes Act charges, whereas your counsel submits that 12 months’ imprisonment is more suitable. I do not consider the other case to be particularly helpful in determining a starting point for the Crimes Act offending. In part, because such cases turn on their own facts and because they often involve a mix of other offending which means that the individual sentences imposed can be
misleading.
11 Police v L [2016] NZHC 455.
12 Williams v New Zealand Police [2015] NZHC 70.
[28] Although serious, the nature and scale of your offending is less serious than the offending in the earlier case the victim here is much younger than the victim in the other case, who was a 15 year-old who might have been expected to have had some knowledge of sexual matters already.
[29] I consider that a starting point of two years’ imprisonment for each of the indecent act and indecent communication offences is appropriate taking into account the following factors:
(a) Your victim was particularly vulnerable. He was very young and you isolated him by instructing him to open a Skype account where the communication was less discoverable. You admitted targeting your victim for sexually oriented contact from the outset through the relatively innocuous medium of a gaming site. In that regard your offending shows a high degree of premeditation. For a day or so, you engaged your victim in communication about the game before moving on to more sexual topics. Moreover, after the victim refused to comply with your requests, you begged him to provide you the images, and you made repeated contact with him about sexual matters, even when he did not respond.
(b)Your offending occurred over a number of weeks, in an escalating manner, and it stopped only after the victim’s family intervened. Given your history of indulging in indecent acts with children I have no doubt that without that intervention you would have continued to offend in this way and that there was a real risk you would have escalated the relationship to one involving direct personal contact.
(c) As I noted earlier, your offending caused confusion, shame and embarrassment to your victim, and the long term consequences of what you did are still unknown. You predatory behaviour destroyed his innocence at a time when he was far too young to be sexualised.
[30] The objectionable material offending and the Crimes Act offending were unrelated except to the extent that they arise from your deviant sexual interest in young children, and I have said I would consider cumulative sentences to be appropriate. That leads to a total starting point of four years’ imprisonment for all offending. I would reduce the total starting point by six months but no more to recognise the totality of the offending.
Adjusting the starting point
[31] There are two major aggravating factors which together warrant an increase
to the combined starting point of three years and six months’ imprisonment:
(a) First, you committed your offending in flagrant breach of a very strict
ESO which was specifically tailored to prevent this sort of offending.
(b)Second, you have 23 previous convictions, including convictions for sexual offending on a child, and five convictions for breaching supervision orders.
[32] I regard an uplift of two years as appropriate, making the total end sentence one of five years and six months’ imprisonment.
[33] There are also two mitigating personal factors, however, which together warrant a substantial discount:
(a) After the charges were laid, you disclosed additional offending to the Police by alerting them to other objectionable material that was in your possession but had not been discovered. I assess your assistance as entitling you to a five percent discount.
(b)You also pleaded guilty at the first available instance, and are entitled to a full guilty plea discount of 25 percent.13
13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[34] Applying the total discount of 30 percent to the revised starting point would bring the total effective end sentence to one of approximately three years and
10 months’ imprisonment. That would be proportionate to the seriousness of your offending overall and reflect the need for denunciation, accountability and deterrence. It would go some way to recognising the current risk of harm you pose to the community.
Preventive detention
[35] But I must now consider whether I should impose on you instead a sentence of preventive detention.14 Unlike the finite sentence which I have just calculated, preventive detention is not about deterrence, punishment and accountability. It is an indefinite sentence designed to protect the community from people who pose a significant and ongoing risk to the safety of others.15 If prisoners who are subjected to preventive detention focus on and actively engage in rehabilitation, they may be released on parole. However, they will be under the control of the Department of Corrections for the rest of their lives, and may be recalled to prison at any time.
[36] I cannot sentence you to preventive detention unless I consider that you are likely to commit another “qualifying offence”, such as your indecent act offence, if you were released at your sentence expiry date.16 I will consider that issue alongside the five factors which the Sentencing Act says I must take into account when considering whether I should impose a sentence of preventive detention.17 I have been provided with reports by health assessors to assist me in assessing these factors: one from a forensic psychiatrist, Dr Ian Goodwin, and one prepared by clinical
psychologists, Dr Joseph Sakdalan and Ms Michelle Coutinho.18
14 Sentencing Act, s 87.
15 Section 87(1).
16 Section 87(2). There is no dispute that the other two prerequisites, namely that Mr Stevens is over 18 years of age, and that he has committed a qualifying sexual offence, have been met in this case.
17 Section 87(4).
18 Section 88(1)(b).
A pattern of serious offending
[37] The first factor I must consider is whether there is any pattern of sexual offending disclosed by your history. Given your 2004 conviction for sexual offending against an eight-year-old boy, both counsel accept that a pattern of sexual offending exists. Although your present offending is not necessarily an escalation from what you did in 2004, both health assessor reports disclose a well-established and tragic pattern of serious sexual offending, or proclivity towards offending, primarily against pre-pubescent boys. This includes various sexual assaults against peers and family members in your youth, as well as the fact that you have been extensively involved with the paedophilia subculture since you were 16.
The seriousness of harm to the community caused by the offending
[38] The second factor for consideration is the seriousness of harm to the community caused by your offending. Both counsel appropriately accept that sexual offending against children can cause extensive community harm. I also reiterate the serious harm and damage that the possession or collection of child pornography causes to children in New Zealand, and worldwide. Every time child pornography is accessed, it fuels demand for the production of such material, leading to further acts which can only cause severe harm to the unfortunate children involved. And I have referred previously to the likely harm caused by your taking away the innocence of a mere child by sexualising him and inducing him to act in a sexually inappropriate manner solely for your gratification.
Information indicating a tendency to commit serious offences in the future
[39] Next, I must consider whether there is information indicating that you have a tendency to commit serious offences in the future. This is closely related, if not identical, to the qualifying criterion of the likelihood of your committing a qualifying offence upon release from a finite sentence. Dr Goodwin applied two tests to assess your risk of sexual reoffending – his Static 99 assessment, which considers static factors relating to risk such as age, number and type of offending, indicated that you are in the high risk category of sexual reoffending. His sexual violence risk 20
(SVR-20) tool, which identifies other risk factors associated with sexual recidivism or reoffending, assessed you as having a moderate to high risk of sexual violence reoffending.
[40] Dr Sakdalan and Ms Coutinho report conducting three different assessments in relation to your sexual recidivism risk. Their Static 99 instrument also assessed you as being at a high risk of sexual reoffending. The Stable-2007 assessment, which analyses dynamic predictors of sexual recidivism such as self-regulation, sexual drive and cooperation with supervision, also indicated that you were at a high risk of reoffending. In particular, I note that it reported your tendency to act impulsively; your high sex drive, including in prison; your consistent use of sex as a coping mechanism; your involvement in a community with paedophilic interests; and your very poor cooperation with supervision, including extended supervision orders.
[41] The SVR-20 assessment in Dr Sakdalan and Ms Coutinho’s report also indicated that your risk of sexual recidivism is high. The report highlights your minimisation of your offending and deflection of it onto other organisations and your peers, as well as your attitude which, although you recognise that sex with children is deviant, you also condone sexual offending.
[42] Dr Sakdalan and Ms Coutinho also assessed your risk reducing factors using the Guidelines for Assessment of Protective Factors for Violence Risk (SAPROF,
2nd edition). That highlighted that you have some strong life goals in relation to being part of your son’s life. I accept that this may be a significant motivating factor against reoffending. But the other evidence leads me inexorably to the conclusion that there is a high risk that you will sexually reoffend in the future and in a manner which would constitute qualifying offending.
The absence of, or failure of, efforts to address the causes of the offending
[43] Fourth, I must consider the absence, or failure, of your efforts to address the causes of your offending. Both assessment reports note that you have been voluntarily involved in a number of efforts to address your sexual offending and
attitudes since your teenage years. It is significant, however, that you have not yet complete any programme either because of your non-compliance with a programme’s rules relating to sexual behaviour, or your belief that a programme’s content is not suited to your needs. You are regarded as currently having very negative views of the Corrections Department, sentiments which indicate that it may be difficult to persuade you to place any trust in Department-run rehabilitation programmes.
[44] However, Dr Sakdalan and Ms Coutinho note that you currently appear motivated to address your offending behaviour, and that you have made better progress each time you have spent in the Kia Marama prison programme. Your counsel also submits that weight should be put on the fact that your offending is not escalating.
[45] Although your desire to engage in treatment is encouraging, your treatment failure rate; the premeditated and highly predatory nature of your current offending; and your determined breach of strict ESO conditions to seek gratification in this offending demonstrate that your issues leading to offending certainly and urgently need to be resolved before the community can be considered to be adequately protected from you. It is clearly necessary for you to engage in, and complete, more intensive treatment before you can be considered to have adequately addressed the causes of your offending.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[46] The fifth factor for me to take into account is the principle that a lengthy determinate sentence will be preferable if this provides adequate protection for society.
[47] In many cases, a finite sentence, combined with a tailored treatment programme and extended supervision is likely to be sufficient to provide protection to the community. Four things give me cause for serious doubt, however, that such a regime would provide sufficient protection in your case:
(a) First, I am worried about your attitude towards extended close supervision. Not only did you commit your current offending whilst subject to an ESO, you also showed alarming disregard for it on other occasions, including removing your electronic monitoring bracelet and absconding. Given your reported struggles with impulsive behaviour, combined with your high sex drive and your frequent use of sex as a coping mechanism, I am by no means convinced that another supervision order would keep the community safe from you after your release. Rather, I consider that incarceration for as long as necessary to see a programme completed, followed by lifetime parole and recall provisions is more likely to give the necessary level of protection.
(b)Second, I am concerned about your lack of support networks outside the prison environment. Such networks are crucial to effective rehabilitation. The reports state that you have no family network or any significant friendships, and that you could identify no social supports in the community. I do not overlook the loving and mutually supportive relationship you had with your partner and your hope that you will rekindle the relationship in the future, but that is not currently in prospect and it is by no means a guaranteed outcome.
(c) Next, I am concerned that a finite sentence of just under four years’ imprisonment would not give you adequate time for you to engage adequately and be positively influenced by the rehabilitative options available to you. In that regard I take into account that you have served considerable time on remand in custody and that affects your end release date. You would be entitled to be released at the end of a finite term even if you are unable to complete or stay in the treatment programme or programmes for any reason. As things stand at present there could be no guarantee that very strict conditions imposed under extended supervision would provide an adequate measure of community protection.
(d)Following that point, I note that despite your lengthy period of imprisonment, your high level of supervision following release, and extensive psychological treatment, you have still failed to address your offending habits. Despite multiple attempts and investments made in your rehabilitation, your never ended up completing the rehabilitation programmed which were assessed as crucial to you. You offended again, and you still continue to pose a high risk of reoffending.
[48] I have taken into account the fact that no warning has previously been given to you that you were likely to be sentenced to preventive detention if you re- offended. There has been no opportunity for that to have been done and it is a factor in your favour. But the extended supervision order would have given you clear notice of the seriousness with which the courts view the risks that you pose. The absence of a warning is not a determining factor, particularly where prior unsuccessful attempts have been made to treat your condition.
[49] I have also taken into consideration the fact that your offending is at the less serious end of the scale of sexual offending. But it is not the seriousness of the offending that is in issue here. It is the risk of serious harm to the community upon your release after an appropriate finite sentence that has to be assessed. Offending of the kind you indulged in causes serious harm to children and young people and I am satisfied that until you receive and complete appropriate treatment to address the causes of your offending there is a serious risk that you will offend in a like manner. In coming to that view, I am influenced by the consideration that an indefinite sentence gives you some incentive to actually complete the rehabilitative
programmes available to you.19
[50] You have said that you want to be involved in your son’s life, to resume your relationship with your former partner and to study engineering. Those goals are not beyond your reach, Mr Stevens, if you commit to completing programmes that
reduce the risk you currently pose to public safety.
19 R v Bryant CA236/03, 16 December 2003.
Conclusions
[51] All of these matters compel me to the conclusion that s 87 of the Sentencing Act applies and that a sentence of preventive detention should be imposed upon you. In imposing that sentence I am also required to impose a minimum period of imprisonment. I agree with both counsel that, in your case, a minimum period of
five years’ imprisonment is required to ensure the safety of the community.20
Sentence
[52] Mr Stevens, would you please stand. I sentence you as follows:
(a) On the charge of doing an indecent act on a child under 12, I impose a sentence of preventive detention and order that you must serve a minimum period of five years’ imprisonment.
(b) On each charge of knowingly possessing objectionable publications, I
impose a sentence of three years and 10 months’ imprisonment.
(c) On the charge of indecently communicating with a person under the
age of 16, I impose a sentence of two years’ imprisonment.
(d) On each charge of breaching a supervision order, I sentence you to six
months’ imprisonment.
[53] All sentences are to be served concurrently.
[54] I make an order for the destruction of all electronic images and videos, as well as the electronic devices seized which are capable of accessing the internet and/or sorting the objectionable content.
[55] Please stand down.
………………………………
Toogood J
20 Sentencing Act, s 89.
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