R v Thompson
[2022] NZHC 720
•8 April 2022
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR
IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-096-1619
[2022] NZHC 720
THE QUEEN V
SCOTT SIMEON THOMPSON
Hearing: 8 April 2022 Counsel:
T G Bain for Crown
S I Robinson for Mr Thompson
Sentence:
8 April 2022
SENTENCING NOTES OF ELLIS J
[1] Mr Thompson, as I am sure you know, there are a whole of things I have to say. I will say them and then I will get you to stand up at the end.
R v THOMPSON [2022] NZHC 720 [8 April 2022]
[2] Mr Thompson appears for sentence today having been found guilty by a jury in the District Court on one charge of sexual violation by unlawful sexual connection.1 He is also for sentence on a charge of wilfully attempting to pervert the course of justice, to which he pleaded guilty.2
[3] Mr Thompson was given a first strike warning by Judge Maze upon conviction. Sentencing was transferred to this Court for consideration of preventive detention.3
[4] The process to be followed is that the Court must identify what fixed-term sentence would be imposed. This provides a focus for assessing the need for the indefinite sentence of preventive detention, bearing in mind a finite sentence can be extended by means of an Extended Supervision Order.
Facts
[5] On 2 December 2003 Mr Thompson was sentenced for a number of offences to a total of 14 and a half years’ imprisonment with a nine and a half year minimum non parole period. He served all of that sentence and was release on 1 August 2018. Before release Corrections applied for an extended supervision order (ESO), that was granted by Grice J in July 2018, for five years. One of the special conditions later imposed by the Parole Board on that ESO was that Mr Thompson was not to enter into an intimate relationship without notifying his parole officer.
[6] In breach of that condition, and it seems with a certain amount of deception on his part, he formed just such a relationship with the victim a few months later. Although there is a dispute about whether that relationship remained on foot on 1 July 2019, it cannot be disputed that on that day he collected the victim from her place of work in central Wellington and drove her to where her own car was parked at a train station in Lower Hutt. On the way he became angry with her. He grabbed her by the hair and punched her in the face.4 Some of the victim’s hair was ripped out, she
1 Crimes Act 1961, Section 128(1)(b).
2 Crimes Act 1961, Section 117(e).
3 Mr Thompson is over 18 years of age and the convicted unlawful sexual connection offence is a qualifying offence. Two health assessors’ reports have been received which note an above average risk of reoffending.
4 The summary of facts forming the basis for the plea referred to him punching the victim in the face with a closed fist multiple times, although Mr Thompson disputed this at his trial on the
suffered a concussion, superficial facial swelling, and lacerations. She took photos of these injuries, which were before the jury in the District Court. Her phone was also smashed.
[7] The victim told Police about these events. A charge of injuring with intent to injure followed, and Mr Thompson was remanded in custody. While in prison he telephoned an associate, asking him to intimidate the victim: to tell her to “pull her head in”. There is, however, no evidence that anything actually came of this.
[8] In due course Mr Thompson pleaded guilty to a reduced charge of assault on a person in a family relationship along with an unrelated charge of threatening to kill the same victim. He was sentenced in the Hutt Valley District Court on 16 April 2020 to 11 months’ imprisonment in relation to the assault with a concurrent term of six months’ imprisonment for threatening to kill.
[9] When the victim first spoke to Police about the assault, she did not mention the sexual violation that had taken place after she and Mr Thompson returned to her home that day. She disclosed that some time later.5 It then took further time for Police to investigate this allegation and Mr Thompson was not charged with unlawful sexual connection until after he had served the sentence imposed in April 2020.
[10] It was alleged at trial, and the jury by their guilty verdict have accepted, that on their arrival back at the victim’s house Mr Thompson demanded that she get in the shower to clean herself up. Because of her injuries, the victim had to brace herself in the shower to prevent her falling over or passing out. Mr Thompson got into the shower and had anal intercourse with her until he ejaculated. He told her he loved her and said things to the effect of “you like that”. The victim was unable to defend herself or resist.
Victim impact statement
[11] The victim has felt unable to provide a victim impact statement today. Mr Bain says, however, that she has advised that she just cannot take herself back there. As
unlawful sexual connection trial.
5 But see the postscript at the end of these notes.
Mr Bain said, this is as powerful, in a way, than anything she could have said in a formal statement.
Past offending
[12] Sentencing was referred to the High Court not only because of the current offending but because of what Mr Thompson has done in the past. Now 52 years old, he has offended both in Australia where he grew up, and in New Zealand, since his return here as a young man in 1995.
[13] As I understand it, Mr Thompson’s early offending in Australia was not sexual in nature. The first time that kind of offending occurred was in 1997 when Mr Thompson was convicted on two charges of sexual violation, both involving a woman with whom he was in a domestic relationship at the time.
[14] The first conviction for sexual violation by unlawful sexual connection related to an incident when, following consensual intercourse, Mr Thompson inflicted injuries on his partner causing significant lacerations to her vagina, requiring hospitalisation and surgery. The second similar conviction involving the same victim involved an incident that was more serious in nature. It involved prolonged abuse, threats of violence and forced anal intercourse. The complainant eventually collapsed and was taken to hospital unconscious.
[15] Mr Thompson tried, as I understand it, to argue that his partner had provoked him into doing these things through what he said was inappropriate conduct with two people he knew. That was obviously not accepted. The sentencing Judge referred to Mr Thompson’s “dominating and arrogant” conduct in general throughout the period in question.6 He was on that occasion sentenced to concurrent sentences of six and nine years’ imprisonment on the first and second sexual violation charges respectively.
[16] In 1998, while Mr Thompson was still in prison for the 1997 offending, he began a relationship with another woman, who had been visiting another prisoner there. This relationship lasted until eight months after his release, which was in
6 R v Thompson HC Rotorua T.88/96, 4 June 1997 at 2.
February 2002. During the course of that relationship, Mr Thompson subjected his new partner to significant violence on a number of occasions, mainly triggered by trivial domestic incidents (such as her children’s untidy bedroom) or her refusal to do what he wanted—such as buying him a car with her savings. Over time the victim suffered broken ribs and a puncture lung, a broken finger, many punches to the head and face, having a car driven at her, threats to kill and acts of suffocation and of strangulation sufficiently severe to make the victim think she was going to pass out. In October 2003 a jury found Mr Thompson guilty of eight charges relating to these incidents.
[17] At the same time, Mr Thompson was found guilty of two charges for sexual offending against his new partner’s seven-year-old daughter. He was convicted of indecent assault on a female under 12, which involved him touching the little girl’s genitals when she was in bed with him and her mother. The charge of sexual violation by unlawful sexual connection related to what happened immediately afterwards, when Mr Thompson left the room with the little girl and forced her to suck and rub his penis. This only stopped when the child’s mother came out of the bedroom. Mr Thompson told the child not to tell her mother or else he would give her a hiding. He gave the child money and bought her sweets.
[18] The sentencing for these offences was transferred to the High Court because— like today—preventive detention was on the table. On that occasion, the sentencing judge said to Mr Thompson:7
You are assessed as being at a high risk of re-offending. Your motivation and readiness to change is assessed as low as you have re-offended while on parole. You have, to a large degree misrepresented yourself to your parole supervising probation officer and you have not taken responsibility for any of the current matters. You were reluctant to be involved in the interview process.
[19] The sentencing Judge also commented that Mr Thompson lacked any remorse for the earlier, 1997 sexual offending, and despite having completed a number of programmes, he continued to regard himself as a victim and tried to shift the blame for the offending to his then partner and others. The Judge said:
7 R v Thompson HC Hamilton T.025644, 2 December 2003 at [6(h)].
The conclusion is that these offences collectively (and to some extent severally), represent a sinister pattern of physical and psychological abuse by you against your then partner, and that the sexual offending against the infant complainant further exacerbates your already precarious position. You understand that the Court was looking at preventive detention. Overall you impressed the Probation Officer as manipulative and lacking any insight into your own propensity to damage and negatively impact the lives of others. …
[20] The two incidents in 1997 were seen as connected. They showed an indifference to whether or not the victim his partner consented and the effect of the offending on her. In addition, Mr Thompson blamed her and acted in a dominating and arrogant manner toward the victim generally.
[21] The sentencing Judge in 2003 specifically noted Mr Thompson had refused to co-operate with the two psychiatrists who had been commissioned to provide reports with a view to the possibility of preventive detention being imposed. But by what the Judge made clear was a narrow margin, a finite sentence of 14 and a half years’ imprisonment was imposed.
The ESO
[22] As noted earlier, on Mr Thompson’s release following the completion of that 14 and a half year sentence in 2018, he was made subject to a five-year ESO.8 In that context—and aided by the reports of two health assessors (with whom Mr Thompson had largely refused to co-operate again)—one of those assessors opined that Mr Thompson was at a high to very high risk of reoffending, particularly in the first two or three years following release. That opinion quickly proved to be correct.
Background of offender
[23] Because Mr Thompson has refused to speak to any report writers, there is little recent information before me about his personal background. There are issues of privilege which, without a waiver, also could not be canvassed.
[24] But the 2003 pre-sentence report records that he emigrated to Australia with his parents and siblings at 6-years-old. In that report, he described a positive
8 Chief Executive of the Department of Corrections v Thompson [2018] NZHC 1821. Five years was the term sought by Corrections.
upbringing until inexplicably he “went his own way [ ... ] and was seen as the black sheep of the family.” On the other hand the psychologist Dr Castell has also noted Mr Thompson’s more recent disclosures to Corrections staff which indicated that his father had been violent towards him and his mother “on a regular basis”. Early on, Mr Thompson and his brother were crime involved together but, it seems Mr Thompson carried on when his brother stopped down that path. Mr Thompson has also revealed a diagnosis of Post-Traumatic Stress Disorder after witnessing a brutal murder while in prison in Australia in 1993. He has received counselling for that.
[25] Mr Thompson returned to New Zealand in May 1995, and met the victim of his first set of offending here soon thereafter.
Finite sentence
[26] As noted earlier, the first step in today’s sentencing process is to identify a potential finite sentence for the present offending.
[27] In terms of the guideline judgment of the Court of Appeal in relation to offending of this kind, counsel are agreed that it falls within band two, although Mr Thompson’s lawyer, Mr Robinson, would put it at a lower point within that range perhaps than Mr Bain. Exactly where it falls depends on the number and extent of aggravating factors.
[28] In my view, the most aggravating feature here was the victim’s vulnerability. So I disagree with Mr Robinson about that; the victim here was extremely vulnerable. Although I accept that care is required in taking the violence involved in the prior assault into account as an aggravating factor by itself—because Mr Thompson was separately charged and sentenced for that—it is certainly relevant to vulnerability. She had just been the subject of a nasty assault to her head and face, could barely stand and was naked in the shower. As well, as I understand it, the intercourse was unprotected and there was presumably some risk of infection. And there is the profound psychological effect on the victim, as is reflected, in fact, in her inability to provide a victim impact statement today.
[29] Although the Crown said the nine year sentence Mr Thompson received in 1997 might be a useful comparator, that is not a straightforward proposition. My assessment is that the violence surrounding the sexual offending in 1997 was more serious and, as I have just explained, the violence preceding the current offending has been separately charged. As well, the maximum penalty for sexual violation in 1997 was some six years less than it is now. Lower maximum penalties also applied in 2003, when Mr Thompson was sentenced by Laurenson J. It can logically be assumed that sentences for the same offending would be higher, today.
[30] By reference to other cases, and the particular aggravating features of this one, I nonetheless agree with the Crown that nine years would be an appropriate starting point for a finite sentence here. There would inevitably be a further uplift for relevant past offending in the order of 12 months. I also agree with the Crown that there would be a further six months for the fact that Mr Thompson was subject to an ESO at the relevant time. That wold give a total of 10 and a half years’ imprisonment. There are no mitigating factors, so no discount.
[31] As far as the attempting to pervert charge is concerned, I would deal with that either by a six-month uplift (having first taken into account a small discount for the guilty plea) or by imposing a cumulative sentence of six months (again after discount for guilty plea). It makes no difference. The net effect is that there would be an overall end finite sentence of 11 years’ imprisonment.
[32] I agree with the Crown that a minimum non-parole would be required. One- third would not adequately reflect the nature of this offending. Further, there is a clear need for personal deterrence and protection of the community. It is a sentence that would be imposed as an alternative to the real risk of preventive detention and something near the maximum non-parole period would be needed. There would be an MPI of seven years.
Preventive detention
[33] I turn now to whether preventive detention should be imposed instead of such a finite sentence. On behalf of Mr Thompson, Mr Robinson recognised the potential for such a sentence, but submitted that the offending for which Mr Thompson is being
sentenced today is less serious than his past offending. He points out that he has received extensive treatment and expresses the hope that, as Mr Thompson gets older, the risk he poses will decrease. I note, though, that the last two points were also advanced on Mr Thompson’s behalf at the time Grice J imposed the ESO. The fact that Mr Thompson is back here today means that they were not borne out. On the basis of the material before the Court, it is impossible for me to say that the risk will decrease with age.
[34] Reports have been received from two health assessors, as required by law. The psychiatrist Dr Barry-Walsh had little to say because Mr Thompson would not engage, although he makes the (with respect) obvious point that Mr Thompson’s further conviction for a serious sexual violence offence whilst subject to an ESO, together with his history of similar offending “raises concern about his further potential for further violent and sexual offending”.
[35] The Psychologist, Dr Castell, has felt able to go considerably further. Although Mr Thompson would not speak to her, either, she conducted a comprehensive review of the extensive files and records about him. She felt able—amongst other things—to apply some of the standard risk assessment tools to Mr Thompson on the basis of the information in those files. Dr Castell says:
[Mr Thompson’s] risk of severe violence is greatest in the context of an intimate relationship, particularly given the alleged use of suffocation/strangulation is a consistent predictor of intimate partner homicide. Nevertheless, the writer notes Mr Thompson's capacity for severe violence against others within his residence (eg prison unit), which may involve the use of weapons.
[36] She notes the persistence in Mr Thompson’s propensity for violent sexual offending despite a range of interventions—including extensive one-on-one therapy— having been undertaken during the last long prison sentence. Overall, Dr Castell’s conclusion was:
All considered, Mr Thompson’s relative risk of committing a further qualifying sexual offence within five years of release is considered to be Well Above Average (ie, at the higher end of the risk range). The writer also considers Mr Thompson to pose a Very High risk of committing further violent offences. To date, Mr Thompson’s attendance to treatment resulted in short term but not sustained behaviour change and during last release he chose other priorities over the continuation of psychological treatment. During that same
release, Mr Thompson was subject to an Extended Supervision Order designed to manage individuals considered by the Court to pose a high risk of further sexual offending. Mr Thompson circumvented his supervision conditions placing himself in his highest risk scenario for a violent and sexual reoffence; quickly culminating in serious reoffending.
Any further treatment will only be of benefit if Mr Thompson addresses the personality and emotion regulation difficulties that became barriers to him attending intensive group treatment. This would best occur within·individual psychological treatment, followed by successful completion of intensive group treatment. Individual treatment alone will not provide Mr Thompson with sufficient opportunity and support to require and apply the skills learned.
If Mr Thompson was released from custody having not successfully addressed matters relevant to his risk, he would require a very high level of external management.
[37] Overall, Dr Castell’s analysis indicates Mr Thompson is a high to very risk of relevant reoffending. That is echoed by the PAC report writer who said:
Mr Thompson is assessed as very high risk of further re-offending in either a sexual or violent nature. Despite intensive treatment with a Departmental psychologist and sentences to support him, such as his Extended Supervision Order, Mr Thompson has continued to offend in an equally violent manner which is indicative of a lack of response to treatment.
[38] There are five specific factors a Court must consider when deciding whether to impose preventive detention. They are:
(a)any pattern of serious offending disclosed by the criminal history;
(b)the seriousness of the harm to the community caused by the offending;
(c)information indicating a tendency to commit serious offences in the future;
(d)the efforts by an offender to address the causes; and
(e)the principle that a lengthy determinate sentence is the preferable outcome.
[39] It will be evident from what I have already said that there is and can be no dispute that there is a relevant pattern here, regardless of the 2003 offending having
been somewhat different. Nor can there be a dispute about the seriousness of the harm Mr Thompson’s offending has caused. All the information before the Court indicates that there is a high risk of similar offending in future despite extensive past assistance Mr Thompson has had to address the causes of his past offending. Those attempts were, and are, almost inevitably futile for so long as Mr Thompson does not accept responsibility for that offending.
[40] By way of summary, Mr Thompson has been in prison for the best part of the 27 years he has spent as an adult in New Zealand. During the brief periods in which he has not been in custody he has carried out sexual and other violent assaults of a very serious kind on his three (different) domestic partners and has also sexually offended against a seven-year-old child. The consequences have been devastating and the reports indicate his risk persists and is not diminishing. As for the prospects of change, not only have there been past attempts but there is nothing before the Court to suggest that Mr Thompson shows any inclination to engage in any further treatment. It seems he still denies the relevant offending including aspects of the offending to which he pleaded guilty.9 As matters stand, the prospects for any change seem virtually non-existent.
[41] As for the sufficiency of a finite sentence, supported by an Extended Supervision Order, the fact that Mr Thompson was subject to—and in breach of—an ESO when he committed his most recent offences is more or less unanswerable.
[42] So it is clear pretty much beyond doubt that an ESO would not offer the necessary community protection. If Mr Thompson is to be released at some time in the future, I consider the ability to immediately recall is a necessary tool for the authorities. I do not see preventive detention as in any real sense being an incentive for Mr Thompson to address his issues. My sense is that he will do what he wants when he decides to do it. Rather, it is one of those occasions when protection of the public demands the sentence of preventive detention and that will be the outcome.
9 By which I mean he now disputes aggravating aspects of the summary of facts that formed the basis of his plea to the 2019 assault charge.
Sentence
[43]So, please stand now, Mr Thompson.
(a)For your conviction on the charge of unlawful sexual connection I sentence you to preventive detention with a minimum period of imprisonment of seven years;
(b)On the charge of attempting to pervert the course of justice I sentence you to six months’ imprisonment.
[44]Both sentences are concurrent.
[45]You may stand down.
Rebecca Ellis J
Solicitors:
Crown Solicitor, Wellington for Crown
Paino & Robinson, Upper Hutt for Mr Thompson
Postscript
After the Court had adjourned Mr Bain advised the Registrar that contrary to what I said at [9] above, the victim did raise the sexual violation at the time she reported the assault but that there was then a miscommunication within Police that meant that aspect of the complaint was not followed up on for several months. I think it is important to put that on the record and so I do so.
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