R v Wells
[2013] NZHC 1645
•2 July 2013
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2009-054-3472 [2013] NZHC 1645
THE QUEEN
v
TONY RUSSELL WELLS
Hearing: 2 July 2013
Counsel: B D Vanderkolk for the Crown
S N Hewson for the Defendant
Sentencing Notes 2 July 2013
SENTENCING NOTES OF MACKENZIE J
[1] Tony Russell Wells you appear for sentencing today having been convicted following trial in the District Court at Palmerston North in December 2012 on one charge of sexual violation by rape1 and one charge of sexual violation by unlawful
sexual connection.2 You initially faced four charges of sexual offending against two
complainants. You were found guilty on the two charges in relation to one complainant and not guilty on the other two charges relating to the second complainant.
[2] You are here for sentencing in this Court because the District Court declined jurisdiction so that a sentence of preventive detention could be considered. I tell you at the outset that I am not going to impose that sentence. I will impose a finite
sentence.
1 Crimes Act 1961, ss 128(1)(a) and 128B.
2 Crimes Act 1961, ss 128(1)(b) and 128B.
R v WELLS [2013] NZHC 1645 [2 July 2013]
[3] The facts are that on 19 March 2003, the victim had travelled to Palmerston North. She had understood that an acquaintance was going to drive her home to Foxton. She waited for her until about 10.30 pm. When she did not arrive the complainant could not find accommodation and so at about 3 am she was sitting on a park bench in The Square.
[4] You walked past her and asked her if she was alright. She told you that she had nowhere to go. You said she could stay at your mother’s place. You said you would go and get your van. As the victim walked towards the place you said you would pick her up, she began to have second thoughts about going with you. However, she got into your van, at about 3.15 am.
[5] You drove out of Palmerston North city and onto a country road. By this time the victim was increasingly concerned. You stopped the van and told the victim that she could sleep with you and have sex. The victim told you she did not want to. She felt trapped and unable to get away from you because of the location. You removed her clothing and you did not heed her pleas to stop.
[6] You used a condom and forced the victim into the back of the van. She tried to push you away but you held her down. You forced the victim’s legs apart and raped her, causing her pain. You then told the victim to get on all fours. The victim refused, but you pushed her down onto one side. You then put your penis into the victim’s anus, causing her further pain. You removed the condom you were wearing and asked the victim to perform oral sex on you. She refused. You tried to force your penis into her mouth and then began masturbating and ejaculated over her. You used paper towels to partially wipe her breast area after having done so. You then drove the victim back to The Square, sometime after 4 am. You left her and drove off at speed. She later went to the Palmerston North police station and laid a complaint.
[7] Your victim has prepared a statement about the impact of your offending on her. It is clear from that statement that your offending has had a lasting impact on her. She says that ever since you attacked her she has felt traumatised and it has a huge impact on her life. For years she could not sleep properly and “felt degraded”.
It has undermined her self-esteem. She continues to have anxiety attacks because of the humiliation of the attack.
[8] I turn to your personal circumstances. I have three reports before me: from your probation officer and two psychologists.
[9] You are 33 years old. At the time of the offending for which you are being sentenced, you were 23 years old. You say that you had an unremarkable childhood and adolescence, with no behavioural or social difficulties. You say that your parents provided you with material goods but were emotionally unavailable and did not express affection to you. You had difficulty at school academically but achieved well in sports. You left school at 15 and started an apprenticeship in the automotive industry. You maintained steady employment as a diesel mechanic until your arrest in 2007.
[10] You entered into your first intimate relationship at the age of 18, which lasted three years. Following the termination of that relationship, in 2004 you entered into a long-term relationship lasting some five years. You have a son from that relationship who is now eight years old. You have maintained contact with your son and former partner. You are described as a caring dad who has genuine concern for his son.
[11] You started consuming cannabis on a weekly basis when you were 13 years old. Your use fluctuated over time, but there was a marked increase when you sustained a back injury around 2008 and started to use cannabis regularly to self- medicate your ongoing back pain. You say that you have only ever consumed alcohol in small quantities.
[12] I must first consider whether a sentence of preventive detention should be imposed. As I have said, I do not intend to do that and I explain why I do not consider that that sentence is necessary.
[13] The first thing I must consider is whether there is a pattern of serious offending.3 You have one previous conviction for sexual violation by unlawful sexual connection on a female over 16 years of age. That offending occurred in
2007 when you were 27 years old. The circumstances are disturbingly similar. You saw the 19 year old victim walking along a road at about 3 am. You pulled over and offered her a ride. She at first declined but you persisted and she accepted. You drove to an isolated area where you threatened the victim with rape and digitally violated her. You also forced her to perform oral sex on you.
[14] The next factor I must take into account is the seriousness of the harm to the community caused by the offending.4 That speaks for itself. Both the present offending and the 2007 offending involved very serious harm to both the victims, and thereby to the community. Women alone in a public place, even very late at night, are entitled to feel safe.
[15] The next factor I must take into account is information indicating a tendency to commit serious offending in the future.5 Mr Trainor and Ms Watson, both psychologists, have prepared reports under s 88 of the Sentencing Act 2002. Those reports discuss your risk of reoffending in the future. Their assessment of your risk differ to some degree. In large part, that difference arises because Mr Trainor was able to interview you in relation to your dynamic risk factors and to gather information from others who know you, whereas Ms Watson was not, because you declined to be assessed.
[16] On the Automated Sexual Recidivism Scale (ASRS), both Mr Trainor and Ms Watson assessed you as being at a medium to low risk of sexual recidivism. That is, you fall within the category of offenders having a seven per cent probability of sexual reconviction within five years after release, with this risk rising to 17 per cent
10 years after release.
3 Sentencing Act 2002, s 87(4)(a).
4 Section 87(4)(b).
5 Section 87(4)(c).
[17] But Mr Trainor’s and Ms Watson’s assessment using the STABLE-2007 assessment tool differed. Ms Watson assessed you as being in the high risk group by that tool. Mr Trainor, on the other hand, placed you in the moderate risk category.
[18] Overall Mr Trainor says that based on static and dynamic risk factors you are at a medium to low risk of committing a further serious sexual offence within ten years of release into the community.
[19] Ms Watson, on the other hand, says you pose a medium to high risk of further sexual offending within ten years of release. She says that you are most likely to sexually offend opportunistically against unknown adult females at night. But she does acknowledge that her risk assessment is limited by you declining to be assessed. Ms Watson acknowledges that if you are motivated to undergo intensive offence specific treatment, then your assessed level of risk may be mitigated. She says that if you are not motivated to undergo treatment, then it is unlikely that your risk of reoffending will decrease in the short term.
[20] Another factor which I take into account in assessing the likelihood of reoffending is the Parole Board assessment when you were released after the 2007 offending. You were assessed as at low risk of reoffending generally by the use of the Board’s usual measure. Your psychological assessment put you at medium low risk of sexual reoffending. That assessment did not take into account the present offending, but it was then known about.
[21] The next factor that I must take into account is the absence of, or failure of, efforts by you to address the cause or causes of your offending.6 You have not had any offence specific psychological intervention. This is primarily because your assessed risk has consistently fallen below the range where an offender is eligible for intervention.
[22] The psychologists differ on the genuineness of your motivation to rehabilitate. Ms Watson considers that you have a low motivation to disclose and
discuss your offending. Mr Trainor, however, says that there is no clear way for him
6 Section 87(4)(d).
to say definitively how motivated you are to rehabilitate but your motivation appears to rest on your desire to be a decent father to your son and there is reasonable evidence that this is a genuine motivational platform.
[23] Lastly I must take into account the principle that a lengthy determinate sentence is preferable to a sentence of preventive detention, if the determinate sentence provides adequate protection for society.7
[24] Taking all of those factors into account, I have formed the clear view that a sentence of preventive detention is not required. Factors that weigh heavily are: first that none of your offending has followed imprisonment so that the deterrent effect of a sentence has not been tested; second that there have been no interventions to address your offending, so that prison cannot be said to have failed to rehabilitate you; and third that your motivation to rehabilitate is untested.
[25] Having reached the conclusion that a sentence of preventive detention should not be imposed, I turn to consider what is an appropriate finite sentence. I must first set a starting point having regard to the circumstances of your offending. The starting point must be fixed in accordance with the Court of Appeal decision in R v AM.8 Both offences fall to be considered on the basis of the bands which apply to rape. It is appropriate to sentence you on both charges concurrently and to adopt a starting point which reflects the totality of the offending.
[26] The Crown and your counsel agree that your offending falls within band two of the rape bands in R v AM. The Crown submits your offending warrants a starting point in the range of 11 years imprisonment. Counsel on your behalf submits that a starting point in the middle of band two for this offending viewed alone is appropriate, which would be in the range of 10 years imprisonment.
[27] I agree with both counsel’s assessment that the offending is towards the
middle of band 2. In my view, the relevant aggravating features are:
7 Section 87(4)(e).
8 R v AM [2010] NZCA 114, [2010] 2 NZLR 750. While the offending occurred on 20 March
2003, the guidelines in R v AM apply to all sentencings taking place after 31 March 2010: at
[125].
(a) the scale of offending: there were two instances of penile penetration;
(b)the planning and premeditation: while the offending was somewhat opportunistic, there was a degree of premeditation in that you, once you saw an opportunity, went and got your van and drove the victim to an isolated area to attack her; and
(c) detention: You took the victim to an isolated area where she was unable to escape, albeit that detention was for only quite a short period.
[28] Taking all these factors into account, and having regard to the comparable cases to which counsel have referred in their written submissions, I adopt a starting point of 10 years. 9
[29] I must adjust that starting point to reflect any personal aggravating and mitigating factors. There are no aggravating factors. As this offending preceded the only other offending for which you have been convicted, an uplift to reflect that previous offending would not be appropriate. That offending does however preclude my regarding your otherwise offence-free record as a mitigating factor.
[30] There are two factors which need to be taken into account in considering a discount from the starting point and these are to some degree related. The first is the effect which the charges for your present offending have had on the time which you served under your previous sentence. Your counsel has urged upon me that I might take the approach of adopting essentially a totality approach by taking into account the previous offending for which you had served a sentence and taking that into account in fixing the sentence and also in calculating the way in which that sentence would be served. I do not think that the circumstances permit me to do that. I have, as I have said, adopted a starting point which reflects the totality of your offending
on this occasion, but does not include that previous offending. But the previous
9 R v Anderson CA199/05, 2 November 2005; R v Takiari [2007] NZCA 273; Solicitor-General v Iti [2012] NZCA 27; Skipper v R [2013] NZCA 104; Pakau v R [2012] NZCA 522; R v Nicholas [2009] NZCA 295; R v Seller [2007] NZCA 422; R v Brady [2013] NZHC 199; R v Tonihi HC Christchurch CRI-2010-009-17567, 6 July 2011.
offending and the sentence imposed for it is relevant to the extent that this offending was discovered before that sentence had been completed and it has had an effect on the length of time which you have served on that sentence. Counsel for the Crown has made available your Parole Board records. Those records indicate that there was a good prospect that you would have been released on parole about November 2009. The laying of these charges prevented that and you were not released until November 2010. I consider that a significant discount should be given to reflect the additional period which you served. But for this offending, you would be unlikely to have remained in prison for the whole of that additional period between November 2009 and November 2010. In the circumstances I consider that the appropriate way to treat that is to allow a discount of nine months from the starting point that I had identified.
[31] The second factor which I must take into account is the time that you spent, after release, on electronically monitored bail. You were granted electronically monitored bail in December 2010 and remained on that until your trial in December 2012. As your counsel has submitted the result of this and the timing of these proceedings had been such that you have been on electronically monitored bail essentially for the entire period since your release from the previous sentence until your remand in custody pending this sentence now. I consider that an allowance to reflect that is appropriate in this case. An arithmetic approach to the issue is not appropriate. An evaluative assessment of all the circumstances is required as the
Court of Appeal has directed.10 I consider that you should receive a somewhat
longer or greater allowance than I might in other circumstances have allowed for the time that you have spent on electronically monitored bail. The terms of electronically monitored bail are less restrictive than imprisonment. In your case there have been some approved absences to mitigate the severity of the restriction. There have been no breaches. I would, if this offending stood alone, allow a lesser discount than that which I think is appropriate. I propose to allow a discount of nine months to reflect that period spent on electronically monitored bail.
[32] That means that the end sentence is eight years and six months. On each count you are convicted and sentenced to a term of eight years and six months imprisonment. Those terms are to be served concurrently.
[33] I must consider whether to impose a minimum period of imprisonment. To impose a minimum period other than the normal parole eligibility after one third I must be satisfied that the purposes of accountability, denunciation, deterrence, and protection of the community cannot be met by the usual one third eligibility for parole. The Court of Appeal in R v AM made it clear that minimum periods of imprisonment of at least half will be routine in cases of sexual offending.11 The need for a consistent approach weighs in favour of a minimum period. However, in your case I consider that the timing of the earlier sentence and the way that that has
occurred is such that I should not impose a minimum period as I would otherwise have been minded to do. I consider that it will be appropriate to allow the Parole Board to consider your circumstances. It will be able to consider the matter in the round and in more detail when you would become eligible for parole in the usual course without a minimum period. So I do not impose a minimum period.
“A D MacKenzie J”
Solicitors: Crown Solicitor’s Office, Palmerston North for Crown
Ord Legal, Wellington for Defendant
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