R v Thompson

[2020] NZHC 195

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-9572

[2020] NZHC 195

THE QUEEN

v

JOHNATHON BARRY THOMPSON

Hearing:	18 February 2020
Appearances:	H Steele and K Guilford for the Crown J Corby for the Defendant
Sentencing:	18 February 2020

SENTENCING NOTES OF GORDON J

Solicitors:           Crown Solicitor, Auckland Counsel:  J Corby, Auckland

R v THOMPSON [2020] NZHC 195 [18 February 2020]

Introduction

[1]    Mr Thompson you appear today for sentence having pleaded guilty to one charge of sexual violation by rape.1

[2]Sexual violation carries a maximum penalty of 20 years’ imprisonment.

[3]    Having regard to your history of offending, at the time you entered your guilty plea the Crown was seeking a sentence of preventive detention. The Court accordingly ordered reports from two health assessors under s 88 of the Sentencing Act 2002 (the Act).

[4]    The Crown’s position as recorded in its written submissions, is that it may be appropriate to sentence you to a sentence of preventive detention. If the Court does impose a sentence of preventive detention, the Crown submits that a minimum period of imprisonment of six years would be appropriate.

[5]    Mr Corby, appearing on your behalf, submits that the presumption in favour of a lengthy finite term of imprisonment is not displaced, taking into account the possibility of an extended supervision order at the end of a finite sentence. A sentence of preventive detention cannot therefore be justified.

[6]I will begin by summarising the facts of the offending.

Background

[7]    The victim is a 26-year-old woman who is related to you. At the time you were 45 years of age. On 29 September 2018, you and the victim were at a family function. You were both consuming alcohol. You also say that you had smoked cannabis and methamphetamine that day, the latter, you say, for the first time. After the family function you drove the victim and two other family members to a bar in central Auckland in a van. During the journey, the victim fell asleep in one of the backseats of the van. She was lying down. When you arrived at your destination, you parked

1      Crimes Act 1961, s 128B.

the vehicle and left with the two other family members. The victim was left asleep in the back of the van.

[8]    You subsequently returned alone and entered the back of the van where the victim was sleeping. You removed her leggings and underwear by pulling them down to around her knees. You inserted your penis into her vagina. The victim felt some pain and awoke to find you on top of her, engaging in sexual intercourse. She started to scream and yelled at you to get off her. You placed your hand over her mouth to stop her screaming and to avoid attracting attention. The victim tried to push you off her but was initially prevented from doing so by your size.

[9]    She was eventually able to remove you and leave the van. She ran down the road and alerted other family members. You followed her and found her speaking to a family member. You apparently requested a vehicle via a ride sharing service and departed. When spoken to by the police you denied sexual intercourse with the victim.

Approach to sentencing

[10]   I must first determine an appropriate finite sentence before considering whether I should impose a sentence of preventive detention.

[11]Setting a finite sentence of imprisonment involves three steps:2

(a)I must first set a starting point for your sentence, which takes into account the facts of your offending;

(b)I will then adjust the starting point up or down taking into account your personal circumstances;

(c)Finally, I will consider what discount you should receive for a guilty plea.

2      R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[12]   Throughout this process, I will have regard to the purposes and principles of sentencing set out in ss 7 and 8 of the Act. Of particular relevance to your offending is the need to hold you accountable for the harm you have done to the victim, to promote in you a sense of responsibility for your actions and acknowledgment of that harm, to denounce your conduct, to deter you and others from committing similar offences and to protect the community.

[13]   I am also required to take into account the gravity of your offending, the need for consistency with comparable sentencing levels and the need to impose the least restrictive sentence that is appropriate in the circumstances.

Starting point

[14]   In setting a starting point for sexual violation by rape, there is a guideline judgment of the Court of Appeal in R v AM, in which the Court of Appeal set four bands for sexual offending where sexual violation by rape is the lead offence.3 Offending in the lowest band, known as band 1, will generally attract a starting point in the vicinity of six to eight years’ imprisonment. Offending in band 2 has a starting point of 7 to 13 years’ imprisonment. Band 3 has a starting point of 12 to 18 years’ imprisonment. Finally, offending in the most serious band, known as band 4, will generally attract a starting point of between 16 to 20 years’ imprisonment or more.

[15]   Mr Steele for the Crown submits that your offending falls at the lower end of band 2 in R v AM,4 and that the Court should adopt a starting point of 10 years’ imprisonment for your offending. Mr Corby, on your behalf, says the starting point should be no more than nine years’ imprisonment.

[16]The key aggravating factors of your offending are:

(a)You took advantage of the vulnerability of the victim, who was intoxicated and asleep in the vehicle;

3      R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [90].

4      Adopting the Court of Appeal terminology in R v AM of “lower end of a band” to encompass a range from the bottom to the middle of a band. At [91].

(b)In those circumstances, where you are an older family member, you breached her trust in you; and

(c)You have caused substantial harm to the victim. I acknowledge her presence here today. That substantial harm relates to the physical pain she endured; the effect of the offending on her relationships with some of your common family members who she says have not believed her; the effect on her relationship with her partner and the continuing psychological impact of your actions. She refers to suffering anxiety, lack of sleep, flash backs and nightmares. She has left her job in order to focus on her life. That has meant she is not able to support herself financially.

[17]There are no mitigating features of your offending.

Case law

[18]   The Crown cites R v Stojanovich as an example of this type of offending at the lower end of band 2.5 With some exceptions, that case is on point. In that case the victim was asleep and awoke to find the defendant touching her breasts and genitals. He subsequently sexually violated her, including by rape. The differences are the younger age of the victim in that case compared with the victim here, her dependent relationship with the defendant and the fact that the defendant supplied the victim with alcohol (there is no evidence that you supplied the victim with alcohol in this case).

[19]   These are factors which suggest that the offending in Stojanovich was more serious. However, another difference, going the other way, is that the sexual violation and rape in Stojanovich proceeded after the victim woke rather than while she was asleep. Your offending is more serious because the victim was more vulnerable to sexual violation as she slept. The starting point in Stojanovich was eight years’ imprisonment.

5      R v Stojanovich [2009] NZCA 210.

[20]   The Crown also draws comparisons to R v John where a starting point of nine years was adopted for the second of two victims. In that case the 16 year old victim, who was intoxicated, was walking home from a party in the early hours of the morning. The defendant passed her on his bike, turned around and got off the bike and walked beside her. He sat down with her on the pavement, there was some conversation between the two of them before he pushed her to the ground. He forced himself on top of her and she was unable to break free. The victim was telling the defendant to get off her. He put one hand over her mouth with his arm holding her down and used his other hand to pull her underpants to one side. He digitally penetrated her, then raped her while holding both hands over her mouth. He then got off her and rode away on his bike.

[21]   The sentencing Judge in John found there was violence to a low to moderate degree, vulnerability to a moderate to high degree and on-going emotional harm inflicted. In light of that, and taking into account the authorities cited, the Judge considered a starting point of nine years was appropriate.6

[22]   There are differences between that case and your offending, Mr Thompson. In John, the victim was younger and vulnerable because she was intoxicated. In your case the victim was not only intoxicated but asleep. On the other hand the degree of violence present in John was not present in this case.

R v AM: band 2

[23]   Rape band 2 in R v AM includes offending where the victim is vulnerable. Violence was not a particular characteristic of your offending, but your behaviour involved some degree of premeditation because you returned to the van and opportunistically took advantage of the vulnerability of the victim. I am satisfied that your offending is within band 2. Due to the absence of significant violence (apart from that inherent in the offence itself), I consider that your offending falls around the middle of the band.

6      R v John [2018] NZHC 89 at [45].

[24]   I find there was vulnerability and breach of trust to a moderate to high degree, and the on-going psychological effects on the victim are significant. I therefore set the starting point for your offending at nine years’ imprisonment.

Personal aggravating and mitigating features

Aggravating features

[25]   You have eight prior convictions for indecent or sexual offending. The most serious conviction is for assault with intent to commit sexual connection of a female aged under 16. This offence was committed in 1998. You were sentenced to two years, six months’ imprisonment. Your prior convictions for indecent or sexual offending are as follows:

(a)27 December 2015: indecent act with intent to insult and indecent act. You were sentenced to intensive supervision for two years and community detention for four months;

(b)2 September 2011: indecent act. You were sentenced to imprisonment for 10 months;

(c)4 December 2005: indecent act. You were sentenced to supervision for two years;

(d)12 November 2002: indecent act. You were sentenced to imprisonment for six months with leave to apply for home detention;

(e)28 September 2002: indecent act. You were sentenced to imprisonment for six months with leave to apply for home detention;

(f)29 November 1998: indecently assaults a female under 12. You were sentenced to nine months’ imprisonment; and

(g)7 June 1998: assault with intent to commit sexual connection – female under 16. You were sentenced to two years, six months’ imprisonment.

[26]   Mr Steele for the Crown submits that your previous convictions require your sentence to be increased by 10 to 20 per cent. On your behalf, Mr Corby submits that an increase in the order of 10 per cent is appropriate. In support of that submission, Mr Corby notes that your previous convictions for sexual offending were in the nature of doing an indecent act or indecent assault. Only one was a more serious offence. That was in 1998, in other words for offending that occurred over 20 years ago.

[27]In those circumstances I consider that an uplift of 10 per cent is appropriate.

Mitigating factors

[28]   Mr Corby submits that an adjustment downwards of approximately 10 per cent should be made to take into account mitigating features which he submits are present. He refers to your history of being sexually and physically abused along with your suicidal ideation. He also refers to your having suffered a number of blunt force injuries to the head. He next refers to your remorse, shame and responsibility you have taken for your offending. And finally, he refers to courses you have taken in recent times and submits that approach on your part ought to be acknowledged and endorsed.

[29]   Mr Steele acknowledges that you may be entitled to some reduction in your sentence to account for your history of sexual abuse as well as the stress following your conviction for careless driving causing death shortly before you committed the offence for which you are now for sentence. The Crown also acknowledges you have participated in some rehabilitation for alcohol and drug dependency. As to remorse, the Crown notes your reported remorse to Dr Jacques, one of the report writers, but you were “somewhat ambivalent” about accepting responsibility for your actions in the view of Dr Goodwin (the writer of a report prepared for s 38 purposes).

[30]   First, in relation to your history of physical and sexual abuse and suicidal ideation, both health assessors, Dr Easden and Dr Jacques, link your abuse suffered as a child to your offending in this case. In other words there is the necessary nexus or link between the abuse you suffered and your offending.7 They also make the linkage

7      EM (CA241/2013) v R [2015] NZCA 202 at [46].

to your offending with the stress arising from your conviction for careless driving causing death. You have also in the past had a number of blunt force injuries to your head which Dr Easden considers means that you are more likely to be susceptible than most to the disinhibiting effects of illicit substances.

[31]   As to remorse, on the one hand the writer of the Provision of Advice to the Court stated that you presented at interview with a very high level of anger and resentment but with little victim empathy. Your anger and resentment appeared to arise from what was expressed as your frustration with the fact that you have yet to get the treatment you feel you need. On the other hand, you expressed some remorse for your behaviour at various times during your interview with Dr Jacques. I also acknowledge that you have attended four sessions of an alcohol and other drug programme.

[32]   Overall, the mitigating factors I have mentioned would warrant a 10 per cent discount.

[33]   With a 10 per cent uplift for previous convictions and then a 10 per cent discount for mitigating factors, the starting point remains at nine years (subject to a discount for your guilty plea).

Guilty plea

[34]   Mr Corby submits that a 20 per cent discount would be appropriate for your guilty plea. The Crown submits that the discount should be in the range of 15 to 20 per cent. You entered your guilty plea on 18 July 2019 after a second trial callover and after the results of DNA testing were available. As a consequence of your guilty plea the victim does not have to give evidence at trial and the expense of a trial is avoided. However, the case against you was strong from the start and was strengthened further after the DNA testing confirmed your DNA in the victim’s underwear. But your plea was relatively early on in the trial process. I consider a discount of 20 per cent is appropriate for your guilty plea.

Final sentence

[35]   Adopting a starting point of nine year’s imprisonment and applying the guilty plea discount of 20 per cent gives a final sentence of seven years, two months’ imprisonment.

Minimum period of imprisonment

[36]   The Court may impose a minimum period of imprisonment that is longer than the one-third statutory minimum if it is satisfied that that period is insufficient for all or any of the following purposes:8

(a)Holding an offender accountable for the harm done to the victim and the community by the offending;

(b)Denouncing the conduct in which the offender was involved;

(c)Deterring the offender or other persons from committing the same or a similar offence;

(d)Protecting the community from the offender.

[37]   The Crown submits that in the event a finite sentence is imposed, the Court should also impose a minimum period of imprisonment of at least 60 per cent of the term of the sentence. Mr Corby submits a minimum period of imprisonment is not required and points to three factors: your personal history of trauma and sexual abuse, head injuries you have sustained and the responsibility you have taken for your offending. It is not entirely clear whether you have taken responsibility for your offending, as I have explained above, but I acknowledge your willingness to seek treatment for your sexual offending.

[38]   Overall I have no doubt that the statutory minimum would be insufficient to hold you accountable for the harm done to the victim, to denounce your conduct, to

8      Sentencing Act 2002 , s 86(2).

deter you and others from committing the same or similar offences and, most particularly, to protect the community from you.

[39]   I would therefore impose a minimum period of imprisonment of 60 per cent of the term of seven years and two months, if I do not impose a sentence of preventive detention.

Preventive Detention

[40]   Having fixed what I regard as the appropriate finite sentence, I must now consider preventive detention. Preventive detention is a sentence of imprisonment for an indefinite period. If imposed, you will be released only when the Parole Board is satisfied you no longer pose a risk to the community. The purpose of preventive detention is to protect the community from those who pose a significant and on-going risk to the safety of its members.9

[41]   A person is eligible to be considered for preventive detention if three pre-requisites are met. First, a person must be convicted of a qualifying sexual or violent offence. Second, the person must be 18 years or older at the time of committing the offence. There is no dispute that those two pre-requisites are met in your case.

[42]   The third pre-requisite is that the Court must be satisfied that the offender is likely to commit another qualifying sexual or violent offence if released at the sentence expiry date. If that pre-requisite is met, then the decision whether to impose preventive detention involves the exercise of a discretion.10 In considering this pre-requisite, the Court needs to be satisfied; proof beyond reasonable doubt is not the standard.11 Rather, the Court comes to a judicial decision based on all the evidence available.12

[43]   I am required to consider reports from at least two appropriate health assessors about the likelihood of you committing a further such offence.13 Two reports were commissioned for that purpose. One is dated 7 February 2020 and was prepared by

9      Sentencing Act 2002 , s 87(1).

10     Leonard v R [2013] NZCA 553 at [7].

11     R v Leitch [1998] 1 NZLR 420 (CA) at 428.

12     R v Carline [2016] NZHC 114 at [44].

13     Sentencing Act 2002, s 88(1)(b).

Dr Easden, a registered clinical psychologist. The other is dated 9 February 2020 and was prepared by Dr Jacques, a consultant forensic psychiatrist.

[44]   Dr Jacques formed the opinion that you do not have a serious mental illness. He considers you have complicated psychological difficulties arising from childhood adversity and trauma. He also found difficulties associated with substance abuse. He identified a number of risk factors but also notes that you have engaged in treatment for substance abuse and that you expressed a willingness to engage in treatment for sexual offending. He says you accept treatment for sexual offending is required. However, Dr Jacques states you are at a high risk of further offending of a sexual nature. He indicates this can be addressed but treatment is first required to address anger and trauma before you can participate effectively in a sex offender treatment programme.

[45]   In his report, Dr Easden assessed your risk of committing another sexual offence as high. The diversity of your sexual offending and the role of stress and drug use are factors in this assessment. He notes your previous treatment history is unclear. He did not know if you had attended a suitable programme to address your sexual offending but thought it unlikely. Dr Easden suggests your lack of appropriate treatment for sexual offending in the past and your willingness to participate in such a treatment programme might mitigate the risk. However, if you served a period of imprisonment and completed such a treatment programme, you would still be of an age where the risk of reoffending remains high. Dr Easden adds that an extended supervision order following a period of imprisonment might provide additional protection for the community.

[46]   I consider there is sufficient evidence, based on the contents of and the opinions expressed in these two reports, to find you are likely to commit another sexual offence which satisfies s 87(2)(c) of the Act.

[47]   I must now consider whether to exercise my discretion to impose a sentence of preventive detention. Section 87(4) sets out a range of considerations that I must take into account in considering whether to impose such a sentence:

(a)any pattern of serious offending disclosed by the offender’s history;

(b)the seriousness of the harm to the community caused by the offending;

(c)information indicating a tendency to commit serious offences in future;

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

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

[48]   The Crown draws comparisons with R v Parker and R v Patuwai but I do not regard either as comparable to your case. It appears the defendants in those cases had a similar risk of reoffending but the pattern of offending was much more serious in both cases. Mr Corby also notes that the defendant in R v Parker had gang connections and in both cases efforts at rehabilitation of the defendants had apparently failed.

Pattern of serious offending

[49]   The Crown characterises your offending as ongoing and varied, which I consider accurate. Your offending on this occasion is very serious and is more serious than your past offending. To that extent, it is an escalation in your offending over time. I have carefully reviewed the Crown’s summary of your sexual offending history and allegations of sexual offending against you. All of your sexual offending has occurred in public places. All of the sexual offending for which you have been convicted involved (apart from this offence) women and girls who were unknown to you. There is one earlier allegation involving a child to whom you were related but you were not charged. Your offending is not limited to victims of a particular age group and there are offences against young girls and teenagers. The latter tend to be you performing indecencies. There is a serious sexual assault involving a young girl and one other assault where you touched the victim in an intimate place.

[50]   During the serious assault you applied force to your victim in an effort to incapacitate her and to silence her calls for help but your efforts were not successful

and your victim was able to escape. Apart from that offence, there is an absence of serious violence or excessive force in your offending. You have frequently been prevented from committing more serious offences by your victim’s resistance, their departure or the intervention of third parties. Your conduct is random and opportunistic, though often, despite the opportunism, there is an element of premeditation in that you stalk your victims or prey on those you might have assessed as vulnerable. As your offending is usually in a public place, your capacity to commit more serious offences was apparently constrained. There is no information as to the role of alcohol or other substances in your offending, though you told Dr Easden that you used methamphetamine on the day of this offending.

[51]   As in other instances, the offending for which I am sentencing you today occurred in a public place on a busy road in central Auckland. You covered the victim’s mouth to stop her calling out. Your efforts to silence her or continue intercourse were prevented by her resistance. On this occasion, you were only able to initiate intercourse because the victim of your offending was extremely vulnerable, being asleep and unable to fend off your advances. You started to pursue her after she escaped but you were in a public place and quickly departed when your offending was disclosed.

Seriousness of harm to the community

[52]   Your offending has caused serious harm to the victim in this case. Your opportunistic offending against victims who are vulnerable is harmful to the wider community. As Mr Steele submits this kind of offending can destroy lives.

Tendency to commit serious offences in the future

[53]   I have already noted that you are likely to commit another sexual offence in future.

Addressing the causes of your offending

[54]   It is unclear from the reports available to me what treatment you have received to address your sexual offending in the past. There is a suggestion you have received

some treatment but Dr Easden doubted you have attended a suitable programme for sex offenders. The Crown notes that you have participated in some programmes or received treatment from psychologists and suggests this factor is neutral given you engaged in further offending afterwards. The Crown also points to inconsistencies in the accounts of the childhood trauma and abuse you reported to each of the experts which, the Crown says, casts doubt on your commitment to attend treatment programmes.

[55]   In the absence of clear evidence regarding any treatment you have received, I am prepared to accept you have not received appropriate treatment to address your sexual offending. It is likely you would benefit from such programmes. Your willingness to participate is acknowledged, even if it is a product of your own anger and shame rather than recognition of the harm you have caused to others.

Preference for lengthy determinate sentence

[56]   Dr Jacques concluded a sentence of preventive detention may be appropriate. Dr Easden’s opinion was that the lack of certainty around the treatment you have received for sexual offending and your willingness to participate in a treatment programme may support a determinate sentence. Dr Easden correctly notes that the Department of Corrections can apply for an Extended Supervision Order at the end of a determinate sentence. This is a relevant consideration in preferring a lengthy determinate sentence.14

[57]   By a fine margin, I consider that a sentence of preventive detention is not necessary for the protection of the community, provided you undertake the appropriate programmes to address your sexual offending.

Result

[58]Mr Thompson, would you please stand.

14     R v Parahi [2005] 3 NZLR 356 (CA). See also Grant v R [2017] NZCA 614 at [50]-[53].

[59]   I sentence you to seven years and two months’ imprisonment on the charge of sexual violation by rape. You will be required to serve 60 per cent of that sentence before being eligible for parole.

[60]Stand down please, Mr Thompson.

Gordon J