R v v
[2017] NZHC 2605
•20 October 2017
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIMS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
CRI 2016-083-1477 [2017] NZHC 2605
THE QUEEN
v
V
Hearing: 20 October 2017 Counsel:
K Bell for Crown
S Ross for DefendantSentence:
20 October 2017
SENTENCE OF ELLIS J
[1] Mr V you are for sentence today on a number of charges to which you have pleaded guilty. The charges relate to sexual offending against three children, your two daughters’ L and K and L’s friend, C. The offending against L began when she was between eight and 10 and continued until she was 16. The offending against K
occurred when she was eight. C was 13 or 14 when you offended against her.
R v V [2017] NZHC 2605 [20 October 2017]
[2] In relation to L the charges to which you have pleaded guilty are:
(a) a representative charge of rape when she was aged between eight and
12;1
(b) a further representative charge of rape (two specific charges of rape);2
(c) three charges (including two representative) of unlawful sexual connection;3
(d)one representative charge of doing an indecent act on young person aged 12 and 16;4 and
(e) one representative charge of incest.5
[3] In relation to K you pleaded guilty to:
(a) one charge of doing an indecent act on a child under 12.6
[4] And in relation to C, there is:
(a) one charge of unlawful sexual connection;7 and
(b)two charges (one representative) of doing an indecent act on a young person aged between 12 and 16.8
[5] Your lawyer, Mr Ross, and the Crown’s lawyer, Ms Bell, are essentially agreed that the main question for me today is whether you should be sentenced to preventive detention or whether a lengthy finite, or fixed, term of imprisonment will be sufficient
to meet the sentencing purposes and principles which I am required to consider. The
1 Section 128(l)(a) Crimes Act 1961, maximum penalty 20 years’ imprisonment.
2 Section 128(l)(a) Crimes Act 1961, maximum penalty 20 years’ imprisonment.
3 Section 128(l)(b) Crimes Act 1961, maximum penalty 20 years’ imprisonment.
4 Section 134(3) Crimes Act 1961, maximum penalty 7 years’ imprisonment.
5 Section 130 Crimes Act 1961, maximum penalty 10 years’ imprisonment.
6 Section 132(3) Crimes Act 1961, maximum penalty 7 years’ imprisonment.
7 Section 128(1)(b) Crimes Act 1961, maximum penalty 20 years’ imprisonment.
8 Section 134(3) Crimes Act, maximum penalty 7 years’ imprisonment.
second question will be the length of any minimum term of imprisonment, that is the amount of time you must spend in jail before you might be eligible to be released on parole.
[6] Before I get to those things though, I need to talk in more detail about what exactly it is you did and to say some things about your background. Before I do that, I do want to apologise to the other people here, the victims for having to go into detail about what happened but it is an important part of the sentencing process.
Facts
[7] I will be sentencing you today based on the information that is contained in the summary of facts. The reports prepared in advance of today’s hearing suggest that you dispute some aspects of that summary but Mr Ross has confirmed that you pleaded guilty on the basis of the summary and instruct that you should be sentenced on the same basis today.
[8] As I said earlier I am going to refer to your victims by name in Court today, Mr V, although their names are permanently suppressed and may not be published, as will yours be, to protect them. I refer to them by name because it is important to emphasise who they are – they are real people - two of them your own daughters – they are children to whom you have done immeasurable harm. They are not simply nameless or faceless “victims”.
[9] Your offending first came to light after your younger daughter K (who was born in October 2008) had been staying with you over a long weekend in July 2016. After the visit, K told her mother and then later a CYFS specialist interviewer and social worker that during the visit you had pulled your pants down and moved towards her with your penis out. She said that you touched her genital area with your penis.
[10] As I understand it, this disclosure led to a wider investigation which revealed your offending against L and C.
[11] As far as L is concerned, she was born in May 2000. She had been in your permanent custody since she was eight years old. She lived with you and your new partner in Whanganui until your arrest on 25 August 2016.
[12] L told the specialist child interviewer that you had been sexually abusing her since she was eight, soon after she moved in with you. The offending happened when you were home alone with her. You would tell her to go into her bedroom, take her clothes off, and lie on the bed where you would have sex with her. She said this happened regularly, often a couple of times a week; sometimes before she left to go to school.
[13] This sexual activity continued regularly. Later on, you would put your fingers into her vagina when you were home alone with her. You would also make her show you her breasts and you would touch them. You also told Police that you regularly performed oral sex on her. On one occasion when she was 11 or 12 you had sexual intercourse with her in the spare room. And on another she remembers being woken up by you inserting a vibrator into her vagina.
[14] In April 2016, L discovered that she was pregnant with your child. You arranged for her to have an abortion in Wellington. You put her on the pill after that.
[15] L also said that you would arrange to have sex with her via text message, telling her to come into your room where you would then engage in sexual activity with her. You would text her telling her to wash her vagina so that you could lick it.
[16] What L said about that was confirmed after a Production Order was granted enabling the Police to obtain text data and content from your cell phone during July and August 2016. The data obtained showed that you had been engaging in sexual activity with L between 18 July and 18 August, including performing oral sex and using a sex toy on her. The content of the text messaging made it clear that L thought that this behaviour was normal.
[17] On 25 August 2016, a search warrant was executed at your address. You told Police that the sex toy would be in L’s bedroom and, indeed, that is where they found it.
[18] But during your interview with Police on that day, you denied sexually offending against L and said you would never offend against children. Initially you tried to explain away the content of some of the text messages but when the more serious messages were put to you, you declined to say anything further.
[19] Later, however, on 28 September 2016, after you had telephoned the Police from Prison you admitted having sexually offended against L since she was about nine or 10 and said that your sexual interest in her had started when she began developing physically. You said that the offending progressed in seriousness over time and that you did not start having intercourse with her until she was 12 or 13. You said that sometimes you had had sex with her in your van and you admitted to performing oral sex on her. You admitted to getting her pregnant when she was 15 and arranging for the abortion. You told her to tell Police that the father was some fictitious boy.
C
[20] I turn now to your offending against L’s friend, C. C and L went to school together. They became very good friends.
[21] In 2014 C was 13 years old. On about five occasions that year she stayed with L at your house. On one evening the girls were in the lounge watching a movie when you offered to give them a back massage. You started rubbing C’s back and then moved your hands towards her breasts. C told you to stop but you did not. You moved your hands down C’s back towards her underwear but C felt uncomfortable and moved away.
[22] In your first Police interview you denied offending against C. But in the second interview you admitted that once you performed oral sex on C in your bedroom and that over a period of around five months when she was about 12 or 13 you would ask her to lay on your bed without any underwear on, with her legs spread while you masturbated. You said you ejaculated on her vagina between seven and 10 times. You
said that you could see that C was from a dysfunctional background and “saw her as an easy target”. You referred to your continued offending against her as being about “Personal Instant Gratification” which you clarified to mean that you thought that, given the offending had already started what difference would another offence make.
Victim impact statements
[23] I have seen the victim impact statements written by C, L, K and your daughters’ mother, D. They make awful reading. L talks about self-harming and suicide. She has described walking down the middle of the road one evening, hoping to be hit by a car. She had to leave school when word of abuse got out and she lost friends because of it. She is very concerned about her educational future and although she is trying to complete NCEA Level 3, her school work has undoubtedly suffered and causes her additional anxiety. She finds normal relationships with boys difficult. She has suffered deep grief, loss and guilt about the baby she aborted. She said how distressed she was at the clinic and said she felt emotionally abandoned. You showed no empathy for her at all.
[24] C too has been undoubtedly traumatised. She has been self-harming and has been hospitalised on numerous occasions. She has developed issues with drugs and alcohol.
[25] And K has nightmares and wakes up screaming. Her mother says that she calls out your name when she has those nightmares. She has flashbacks. It is no surprise that she no longer sees the world as a safe place. You have taken away her childhood, and you’ve taken away L’s and C’s.
Prior offending
[26] I now have to talk about your criminal history. You have four previous convictions for indecent assaults and acts against children in the mid-1990s. The victim on that occasion was your then partner’s seven year old niece. Over a period of six months you would expose your penis and get her to touch it. You would also rub her bottom and genitalia and rub your penis against her bottom. The offending came to light when she was found with you early one morning with her underpants
around her ankles. She later said that you had touched her bottom. You admitted to
this offending, but said that you found your niece “an attractive young girl”.
[27] Following this offending you were sentenced to three years’ imprisonment. You participated in the Kia Marama Treatment Programme for child sex offenders between November 1995 and July 1996. A treatment report written at the time said that you had made good progress. On your release, you attended relapse prevention groups for a while.
Pre-sentence report and s 88 reports
[28] The pre-sentence report notes that you were born in Holland but came to New Zealand with your family in 1971, when you were four. You describe your childhood as unhappy. Your father was very controlling. You did not enjoy school. You were sexually abused by your own brother over a long period of time and when you told your parents about that they did not believe you. Your own history of abuse was something that was noted by the Judge who sentenced you back in 1995.
[29] You met L’s and K’s mother in 1993 and your first child – a son – was born in
1995, while you were in prison for offending against her niece. You stayed together after your release and L and K were later born. Your relationship ended in 2009 and shortly afterwards your son and L moved in with you. Since your break up you have been in a relationship with another woman who you first met when she was 13. She was 18 when you began a relationship with her. Because of her young age the report writer calls your relationship with her as “offence analogous behaviour”.
[30] The report writer notes that you have a somewhat limited acceptance of responsibility for your offending and you maintain some distortions around it. In particular, you told the report writer that the victims were “not against the offending”, and said that because C came back to your house “she must have had some willingness to engage in the sexual activity”. That of course overlooks the fact that she was only a child and, as you could see for yourself, an easy target.
[31] While you said that your offending now disgusts you, the writer says that you display little emotion that is consistent with such feelings. He notes that you have
started ACC counselling for your own abuse and that you regard this as important – and something that was missing from the earlier treatment you received. I do note, however, that after your release from prison in 1996 a referral to a Departmental Psychologist was made to help you deal with this offending as I understand it. But in early 1997 you declined an opportunity to engage in individual treatment. You do say, however, that you are willing to have more treatment at Kia Marama in future.
[32] The Probation report writer assesses you to be at a medium to high risk of sexual re-offending, which may be even higher given the fact that you reoffended after receiving treatment previously and in light of the long period over which your present offending took place.
Section 88 reports
[33] I have also read the Psychiatric Report dated 9 October 2017 by Dr Gordon Lehany and the Psychological Report dated 4 October 2017 prepared by Mr Carstens, a Corrections Department psychologist.
[34] Mr Carsten and Dr Lehany also both noted your history of abuse at the hands of your older brother and Mr Carsten said that when you were about eight you tried to burn down the family home because your parents had not believed you about it.
[35] Both report you as having high levels of anxiety and depression and that you are on medication for this. You have a number of physical health issues too which are ongoing and which have in the past affected your employment opportunities.
[36] Again, your tendency to minimise and justify your actions and your lack of understanding about the emotional damage you have caused comes through in the reports. Mr Carsten used two actuarial risk assessment tools to help him determine the risk you pose:
(a) the ASRS tool (which measures static risk factors) placed you at a low risk of sexual reoffending. But Mr Carsten noted that this assessment did not include or take account of your current offending so is likely to understate your risk quite considerably I would have thought;
(b)the VRS-SO tool put you at a high risk of sexual reoffending based on both static and dynamic factors. That tool suggests that you have a 16.3 per cent risk of reoffending in that way after five years and 25.4 per cent after 10 years.
[37] Mr Carsten noted that the most likely protective factor for you is age as
Mr Ross emphasised this morning. Generally speaking, the risk of sexual reoffending decreases after 50 and more so after 60. But given you were 48 when you last offended he said that not too much store should be placed on this. So overall, Mr Carsten said that you pose a high risk of further child sex offending and that the most probable risk situations include contact with young girls in a family context of forming relationship with a vulnerable parent of such a child.
[38] Similarly, Dr Lehany said that access to potential victims is a key factor for you. Without active risk management, he said that your risk of reoffending is high. In Dr Lehany’s view you will need lifelong active oversight.
Preventive detention?
[39] So, as I said, the main question for me today is whether the appropriate sentence is preventive detention or a lengthy fixed term of imprisonment. Mr Ross will, I am sure, have explained to you that the purpose of preventive detention is not to punish but to protect the community from people who pose a significant and ongoing risk. Your age and the nature of your offending means that you potentially do qualify for such a sentence.
[40] So, the main thing I need to decide is whether I am satisfied that you are likely to commit another qualifying offence if you are released at the expiry date of a finite sentence. There are a number of things that the law says I need to take into account when making that decision.
Pattern of Serious Offending
[41] The first of the things that I need to consider is whether there is a pattern of serious offending by you. Clearly there is.
[42] Although you do not have an extensive criminal history there is the 1995 sexual offending against a child I have already mentioned. And Dr Lehany said of your later offending that it was persistent, escalated and chronic. And in any event the offending against your three later victims (including, in particular, the very prolonged and regular offending against L) itself discloses a relevant pattern.
Seriousness of harm to community
[43] Next, there is the seriousness of the harm caused to the community by your offending. There can be no doubt that sexual offending against young people creates serious and ongoing harm not just to the victims themselves but to society generally. The effects of such offending are usually long term. You know this – you know this, Mr V, from your own experience. There is terrible harm in society having to care for people who could and should be productive and fully functioning members but who have, instead, been traumatised and damaged by childhood abuse. There are financial costs to the community, too. Counselling costs, hospital bills that should never have been necessary.
Information indicating tendency to reoffend
[44] In terms of information which indicates your tendency to reoffend, the experts have assessed your risk as high, as I have discussed earlier. Also of some concern is your tendency to minimise and rationalise your offending and your continued denial of some of your offending (especially against K). In my view this underscores the assessment of the risk you pose.
Failure to address causes of offending
[45] Also worrying is the fact that your earlier imprisonment and treatment did not stop you committing these offences. I acknowledge that it seems you did make positive advances at Kia Marama and there is nothing to suggest that you offended
again for some time after release, although lack of opportunity may have had something to do with that. But when it came, your relapse was profound and prolonged.
[46] I also accept that you may be right about the failure of the Kia Marama programme to address your own victimisation but I have also noted that a referral for post release counselling was in fact made. I am not sure why you declined one on one counselling in 1997. But it’s good to know that you are receiving some now.
Lengthy determinate sentence preferable if adequate protection for society
[47] Lastly, I must consider whether a lengthy finite sentence would be enough to protect society from the risks you pose. If it is, then that is the sentence I should impose. So, I need to consider now what such a sentence might be.
[48] Counsel are agreed that the starting point for a finite sentence needs to be determined by reference to what is called band four of the tariff set by the Court of Appeal for offending where the lead charge is one of rape. Band four – which is reserved for the most serious cases, involving multiple offences over long periods of time, and offending against children – means that the starting point would be between
16 and 20 years.
[49] And in your case, there are a number of aggravating things that would justify a starting point at the higher end of that band, including:
(a) the planning and premeditation, the grooming involved in your offending against L;
(b) the fact that there were three victims;
(c) the particular vulnerability of all three victims, who were all children, and much younger than you. L was only eight when your offending against her began;
(d)the abuse of trust involved in your being L’s and K’s father. You were the one person in the world who was supposed to look after them, not hurt them;
(e) the fact that the offending against L continued, repeatedly, over a period of eight years; and
(f) the dreadful mental harm caused to each of the children and the particular physical harm caused to L, through her pregnancy and the abortion that she was forced to have.
[50] I have already noted the views of the victims about these things, earlier.
[51] So, looking at all the offending against all three victims –taking what is called a totality approach – I would regard 20 years as an appropriate starting point here. There would need to be an uplift of a year for your previous convictions. Then taking into account your guilty pleas that would take that 21 year total down to 17 years. I would not give any separate discount for remorse. In my view, a minimum period of imprisonment of 10 years would be appropriate.
[52] So, if such a finite sentence were to be imposed, on an absolutely best case scenario for you, you would be 60 when you got out of jail. But if, at the end of that
10 year period you could not satisfy the Parole Board that it was safe to release you then you could be required to stay in jail for up to another seven years. By that time, you would be 67. I have already noted what Mr Carsten said about age and decreasing risk.
[53] In deciding whether a finite sentence in that order would adequately protect society from you there are two other relevant matters. As well as the availability of further treatment in prison and your stated willingness to accept it, there is the ability of the Corrections Service to apply for an Extended Supervision Order at the expiry of any fixed term sentence, if it is thought that you still pose a high risk of reoffending. ESOs impose very restrictive release conditions on a former prisoner and permit close monitoring to address the risks posed. They can last for 10 years and can be renewed
beyond that time. Their potential availability has also been regarded by other judges in cases like this as helping them decide in favour of a fixed term sentence of imprisonment rather than preventive detention.
[54] And lastly, there is the fact that you will (from today forward) have your name placed on the Register of Child Sex Offenders, and will be subject to the reporting and other requirements under the 2016 Act for the rest of your life. Those requirements are intended to provide a further level of protection against any risk you might continue to pose upon release. For example, you will be required to keep the Police informed on an ongoing basis of the names and ages of any children living with you. You will be required to tell the Police who your internet provider is, the details of your modem or router and what all your online usernames are.
[55] I would expect that the twin operation of an ESO and registration under the
2016 Act would, in particular, assist in protecting against specific risk identified by the psychologists, by minimising the prospect that you will ever be able to be in a domestic situation where young girls are “available” to you.
Decision
[56] I have to say Mr V this has been a finely balanced decision for me today. But in the end I am going to exercise my judgment in favour of a lengthy, finite term of imprisonment with the imposition of a minimum term. That means I am not going to sentence you to preventive detention today.
[57] The length of the sentence I am going to impose and your age on release, your willingness to accept further treatment, your engagement with ACC, the age you will be on your release and the facts that Corrections can, if necessary, apply for an ESO on your release and that your name will be on the Child Sex Offender Register forever are all things that have helped me decide that I should not sentence you to preventive detention today.
[58] So, if you could stand now Mr V.
Sentence
[59] So, on each of the charges of sexual violation you are sentenced to 17 years’ imprisonment with a minimum period of imprisonment of 10 years. Both sentences are to be concurrent.
[60] As for the remaining charges:
(a) on each of the three charges of doing an indecent act on a young person aged 12-16 I sentence you to two years’ imprisonment;
(b) on the charge of incest I sentence you to five years’ imprisonment; and
(c) on the charge of doing an indecent act on a child under 12 I sentence you to one year imprisonment.
[61] All those sentences are to be served concurrently with each other and with the sentences on the lead charge.
[62] Please stand down.
Rebecca Ellis J
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