R v Stevenson HC Auckland CRI-2004-044-2428

[2005] NZHC 1295

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2004-044-2428

THE QUEEN

v

NEIL ROBERT STEVENSON

Appearances: H D M Lawry and T Robertson for Crown J Wiles and J Scott for Prisoner

Judgment:      11 March 2005

SENTENCING NOTES OF BARAGWANATH J

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland

R V STEVENSON HC AK CRI-2004-044-2428 [11 March 2005]

[1]    Mr Stevenson, you have pleaded guilty to the indecent assault of a ten year old girl and also to doing an indecent act in a place to which the public had access,  by masturbating and exposing your erect penis to a seven year old girl while you were in a motorcar.

[2]    You have a history of offending against young girls and the District Court has declined jurisdiction so that this Court can consider whether you should be sentenced to preventive detention.

Facts

[3]    In January of this year you drove your girlfriend and her son to Whangarei. There were two little girls of five and ten with you.

[4]    Having dropped off your girlfriend and her son you drove the girls to a playground. While watching them play you became aroused, you offered to give the ten year old what was called a “horsey ride”. You laid her on her back and climbed on top of her, placed one of her legs over you and began to thrust your erect penis against her genitalia. Counsel are agreed that both of you were clothed. She became alarmed and began to struggle and you climbed off her. You continued to watch the girls play.

[5]    On 17 February 2004 you were driving your car on the North Shore and watching school children as they walked home. You had lowered your shorts and were masturbating your erect penis. You saw the seven year old  complainant walking home on her own and waited for her to approach. You called to her and when you were sure that she could see you masturbating, asked her if she could take a photograph. She moved closer to the car and you held up your cellphone and took  a photograph of her. You continued to masturbate and asked if you could take some more photographs. She was petrified but managed to say “No”. You became angry and yelled obscenities at her. A police officer passing on patrol, wholly by chance and fortunately, noticed the look of terror in the complainant’s face and stopped.

When spoken to by the police you admitted the facts I described and asked that you just be warned and allowed to go home.

Victim impact statements

[6]    Victim impact statements were obtained from both girls. The first, understandably, finds it hard to trust people and will stay with no one but her mother and no longer talks to people as she used to do. She has nightmares and her behaviour has been affected; she has been trouble as a result at school. She says she is going her best to live with the changes, since what you did to her.

[7]    The second complainant said that she was scared and allowed you to take a photograph of her. When she approached the car she could see you masturbating which made her feel as she said “yuk” and sick. She was so scared she did not know what to do. She feels safe knowing that you are in jail and does not want to see you again. She has lost sleep and had bad dreams about your grabbing her. Her mother has found her crying. Those are the inevitable consequences of this kind of  offending and what is deeply troubling in this case is that you have done this before.

Prior offending

[8]    You are a man of 27. Your criminal list includes offences of dishonesty and those, I am advised, are of particular relevance considering the seriousness of your offending which contains a pattern of previous sexual offending of the same kind. On 5 February 1997 you appeared before this Court for sentence on four charges of attempted abduction of girls under  12.  Within  a  three  month  period  between May and August 1996 on four occasions you approached young girls quite unknown to you and suggested that they accompany you.

[9]    The first was on 21 May 1996 when a ten year old was walking along a street in Glen Eden when you approached her in your car. You offered a ride, which she declined and she ran off down the road attracting the attention of some members of the public.

[10]   The following month a seven year old girl was walking along a street in the same suburb when you approached her in your car. While masturbating in her presence  you  asked  her  to  go  over  to  your  house  to   play  with  your   toys. She declined and ran home.

[11]   On 5 August 1996 an eight year old girl was walking along another street in the same suburb when you approached her in your car. You offered her a ride to the shop and she declined. You grabbed her jersey and pulled her towards the passenger’s door of your vehicle. She resisted, was able to back away and run into a neighbouring property.

[12]   When  interviewed  by  the  police  two   days   later,   you   admitted   the four offences and said that you had a serious problem with younger girls. On each occasion you had been masturbating at the time of the offence, you said you could not explain your actions, you admitted the purpose was to entice the girls into your vehicle for the purpose of taking them somewhere to assault them sexually with a probability of having sexual intercourse. You said that you have been responsible  for ten to 12 similar incidents in the same suburb over an eight month period although the police were unable to find any other complainants unsurprisingly.

[13]   In his sentencing remarks at that stage Robertson J was dealing with a first offender. It appeared on the evidence before him that you had made very genuine  and determined efforts to deal with your problem since the matters had come to light. The pre-sentence report urged him to deal with the matter on the basis of your rehabilitation, on the premise that the community would in the long run be safer if your problems were dealt with to ensure you did not prey on youngsters in  the future. That is what any sentencing Judge is concerned with. The Judge described  the immediate and long-term effects on the four victims who had reported on the effect of your offending to them and of the same kind of effect as on the complainants in this case.

[14]   You being a first offender the Judge used a starting point of three years, which he reduced to two for your early plea of guilty which had relieved the children from the need to give evidence and he said that the material placed before him

indicated a degree of confidence in your ability to control your position and to act responsibly. He suspended the two year sentence as the law then permitted and imposed a term of nine months periodic detention and supervision for two years. You immediately rejected the opportunity you had been given. Soon afterwards you breached the conditions of release by failing to attend the SAFE programme which the Court had directed. You were remanded in prison and released early in 1999.

[15]Soon after your release you twice reoffended against an eight year old girl.

[16]   In July 1999 you visited the family home, her older sister being a friend and you took advantage of that. You entered the child’s bedroom, put your hand under her T-shirt and fondled her breasts. You then put your hands under her dress and felt her private parts over her underpants.

[17]   You then went with the family to the airport and, having seen off the sister, returned to the child’s address. You again entered her bedroom and there exposed your erect penis to her, took hold of her hand and tried to place it on your penis so  she would masturbate you. She pulled her hand away from you and you then masturbated in her presence. For that offending you were later sentenced to 2 years imprisonment.

[18]   In the meantime on 2 September 1999, you were driving again in Glen Eden and saw an eight year old girl walking home. You began masturbating as she approached the car and asked if she wanted a ride. You offered her lollies,  which  she declined and she ran home. For that offending a concurrent six month term was imposed which may be thought remarkably light in the circumstances.

[19]   Following your release from prison in late 2001 you committed a spate of dishonesty offences including theft as a servant and credit card fraud. You were sentenced to various periods of community work.

[20]   I accept the Crown’s submission that you are a recidivist sex offender against children and have used toys and lollies and particularly a car to gain access to

potential victims. As the Crown submits, your conduct is deliberately predatory and paedophilic.

Reports

[21]   A pre-sentence report records your having suffered sexual abuse as a child. That is a misfortune, not an excuse. The report emphasises the ability that you displayed in your offending to gain the trust and confidence of the families of your victims so as to get access to them and of your having positive feelings of excitement, arousal and feeling good, during the offending. You accepted that you had acted wrongly but, according to the report, showed no real understanding for your victims. You accepted the analysis of your offending and the likelihood of future offending and expressed preparedness to undertake rehabilitative treatment.

[22]   As to your failure to comply with the SAFE programme, the inability to use the skills learnt at the Te Priti programme, you say that you have matured since your last attempt at rehabilitation and that you are ready to re-engage in treatment and are confident of successful rehabilitation. Coming from you with your history of fraud and of failure to comply with terms one can understand the scepticism with which some of the reporters have greeted that. You have been assessed by the Community Probation Risk Assessment tool as having a high risk of reoffending and there is a unanimous opinion among the experts that if released now that is exactly what you would do. You have been described in the past as one who frequently tells lies, is prone to be manipulative and is capable of intimidation.

[23]   Dr Wyness, consultant psychiatrist with the Waitemata District Health Board, describes you as exhibitionist as well as paedophilic. He considers that the history of multiple episodes of sexual offending over the past eight years, despite some years of imprisonment, puts you at high risk of reoffending. He observes that  the  question for this Court is not the current risk of reoffending, which is all too obvious, but of what the risk will be at the end of a fixed term of imprisonment some years in the future as to which he says no predictions can be accurately made. He says that in the absence of a rehabilitation programme it is likely you would reoffend in the future. He refers to the fact that the actual offending is limited in severity relative to others

with which this Court has to deal. He does not refer to the prospect of success in rehabilitation.

[24]   The Crown psychologist, Dr Moskowitz, expresses himself as unable to assess the likelihood of your committing a further qualifying sexual or violent offence upon the termination of a finite sentence. He says that this is because psychological assessment of risk to others is most accurate over a relatively short-term period in relation to a specific type of risk situation. He considers you clearly require treatment for your sexual offending. He records as a matter of  concern that three sets of treatment – the SAFE programme, Te Piriti and individual counselling have failed to reduce your offending. He records three positive prognostic factors:

a)that you have managed to stay out of prison for two and a half years;

b)you have been in an adult age appropriate relationship with a woman, albeit one with little sexual interest on your part;

c)you have been willing to take part in treatment.

[25]He also identifies five negative factors:

a)your offending began early while you were still a teenager;

b)the pattern of offending has been unchanged since then;

c)your victims have been both children of friends and strangers so any young girl is a potential victim;

d)while you have never been charged with sexual intercourse with young girls it was your stated intent and could easily have happened had a girl agreed to get into your car;

e)you have engaged in fraud offences and it is generally believed that offenders who engage in multiple forms of crime are less amenable to treatment.

[26]   It is his opinion that if you were released at this point you would be at high risk of reoffending in a similar manner. He offers no opinion as to what may be the case after a term of imprisonment and treatment.

[27]   Your  counsel  has  obtained  a  report  that  I   have   found   helpful   from Dr Sunil Dath,  a  registered  clinical  psychologist,  with  the  assistance   of Anthony Lipanovic, an intern psychologist. That report is generally in agreement with the reports with Dr Wyness and Dr  Moskowitz  and  particularly that  there  is  a medium-high  risk  of  sexual  recidivism  if  you  were   released   untreated.   They consider that specialist therapeutic intervention is warranted.  They say that  you have undergone extensive psychological trauma. This needs to be dealt with through a proper and long psychological period of therapy. They also express the opinion that you would respond positively to therapy, albeit you are at the moment someone at medium to high risk to society which is a more optimistic opinion than that of the other experts.

Discussion

[28]   The Crown submit that  your  failure  to  complete  the  SAFE  programme, Te Piriti programme  and  the  extensive  and  continuing  ACC  counselling  with  Dr Lipanovic, has done nothing to assist you or to protect the public. They submit that the only way in which the community can be protected from significant and continuing risk, is by preventative detention, effectively a sentence of life imprisonment.

[29]   The relevant provision is s 87 of the Sentencing Act 2002. Subsection 4(e) of that section requires the Court to take into account the principle that a lengthy determinate sentence is preferable, if this provides adequate protection for society. For that reason I begin with that possibility.

[30]   Seen in isolation or in combination the two offences are deeply concerning to the girls, to their families and to others who think of the prospect of the next victim following your release. It is the case that in the overall pattern of sexual offending this is not in the upper echelon with which this Court has so frequently to  deal but the past pattern and what you said about it entails the very real risk of which the experts have spoken.

[31]   The pattern of sentencing for offending such as this has been discussed in two Court of Appeal judgments which were cited by counsel. One is Engu v  R CA478/93, 15 March 1994 and another is R v Hirama CA436/02, 23 June 2003. Without features beyond those inherent in the offending a starting point of say three years might be indicated. That would  be  subject to deduction on account of your plea of guilty. Here, however, the aggravating features are considerable and take  you close to, if not over, the brink of preventive detention.

[32]   The pattern of predatory offending and past sentencing, including a 2½ year prison term which has not worked, requires the Court to take a much sterner view that would be appropriate for first offences. Of the purposes and principles of sentencing recorded in ss 7 and 8 the major factors are of deterrence and protection of the community although there is also the competing consideration of the potential rehabilitation as well as the gravity of the offending. It is necessary to consider not  in isolation but in the light of your past conduct and the consensus that you are at high risk of reoffending. By that measure your offending is grave.

[33]   As counsel agree this case has in  principle  much  in  common with that  of  R v Bailey CA102/03, 22 July 2003, in which I was a member of the Court. In that case a recidivist 52 year old paedophile who had been sentenced to preventive detention had that element removed on appeal. He was sentenced to a net term of  five years for offending that involved the appellant massaging the complainant’s back, the appellant removing the complainant’s shirt, rubbing his lower back, moving down to the buttock area, the appellant attempting to remove the complainant’s trousers but the complainant resisted. He eventually managed to extract himself. On its face not the most substantial sexual offending but in the light of the overall context, sinister as yours is by reason of his past conduct. The Court

of Appeal sentenced him by way of a finite term of five years which, given the prompt plea of guilty, may be treated as having been discounted from a term of perhaps seven. A minimum term of three years was imposed.

[34]   I consider that if a finite sentence were to be imposed in this case it would be of similar dimensions.

[35]   I turn to the question of preventive detention which is of such importance and difficulty in cases like this. In considering the Crown’s submissions and the reasons why Judge Hubble, who is very experienced, sent the matter to this Court the factors that are to be considered are:

a)Any pattern of serious offending disclosed  by the offender’s  history. I have talked about that, there was such a pattern.

b)The seriousness of the harm to the community caused by the offending. That is self-evident. The lives of these little girls have all been affected, their families have been affected. We do not  know what the future holds for them. What we do know as is tragically the case in your own life that sexually offending can have long term dire effects.

c)Information indicating a tendency to commit serious offences in future. There is simply no argument about that. That is what all the evidence establishes.

d)The absence of or failure of efforts by the offender to address the cause or causes of the offending. We have identified that, that the substantial attempts by the authorities to assist you have been without success.

e)I have already referred to the final point that the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[36]   Such cases as R v Burkett CA416/00, 21 February 2001 and R v T CA125/02, 19 July 2002 in which an order for preventive detention I had imposed was reversed by the Court of Appeal demonstrate how the Court of Appeal viewed these matters and how they should be viewed by this Court.

[37]   The Courts adopt a principle of proportionality. They look at the gravity of the offending in which in which its protracted nature is significant, they look at the future potential for harm which exists in all these cases, they look at the particular nature of the instant offending as a factor and then consider whether or not in terms of subs (e), a lengthy determinate sentence provides adequate protection and whether a sentence of preventive detention would be disproportionate. It is relevant that the protection of the public will be tested not only by the terms of the finite sentence, which I have decided to impose, but also by the scheme of the new Part 1A of the Parole Act, inserted by the 2004 Amendment Act, analysed by the Court of Appeal last month in R v Mist CA480/03, 25 February 2005.

[38]   Your case is on a knife edge. But for the fortuitous and fortunate arrival of  the police officer to the aid of your second victim it is very likely that your offending would have proceeded to a graver extent and that you would now be sentenced to preventive detention. Because that has not occurred the matter is more finely balanced. The opinion of Dr Dath who has considered your case with  exemplary care contains a positive prognosis that you would respond positively to therapy, notwithstanding what he knows about your past.  I have the responsibility on behalf of the public to balance the considerations I have mentioned.

[39]   I am satisfied that you require a long time in prison so that this long treatment may be achieved. That can, I believe, be done by a finite sentence of five years, which I reduce from seven by reason of your plea of guilty, together with a minimum non-parole period of three years. I warn you that if there be  further offending, even if not of itself of a gross variety, given that you are on a knife edge today you will inevitably be sentenced to preventive detention.

W D Baragwanath J