R v Wilson HC Gisborne CRI 2010-016-278

[2010] NZHC 1484

NOTE:  PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2010-016-278

THE QUEEN

v

IVAN JAMES WILSON

Hearing:         27 August 2010

Counsel:         R J Collins for Crown

E J Forster for Mr Wilson

Sentence imposed:     Sexual violation by unlawful sexual connection (x3) Attempted sexual violation (x3)

Committing indecent acts (x3)

Preventive detention

Minimum term of imprisonment of 5 years

Judgment:      27 August 2010

SENTENCING NOTES OF HEATH J

Solicitors:

Elvidge & Partners, PO Box 609, Napier
Counsel:

E J Forster, PO Box 838, Hastings

R V WILSON HC GIS CRI 2010-016-278  27 August 2010

Introduction

[1]      Ivan James Wilson, you appear for sentence today having been found guilty by a jury on 19 June 2010, on three counts of sexual violation by unlawful sexual connection,  three  counts  of  attempted  sexual  violation  and  three  counts  of committing indecent acts.  You were discharged on one count of doing an indecent act and you were found not guilty by the jury on one similar charge.

[2]      The  lead  charge  for  sentencing purposes  is  sexual  violation  by unlawful sexual connection.  They are the three charges encompassed in counts 2, 5 and 9.  On each occasion this violation consisted of you sucking the 13 year old boy’s penis.

[3]      The maximum penalty for sexual violation by unlawful sexual connection is

20  years  imprisonment.     The  charge  of  attempted  sexual  violation  carries  a maximum penalty of 10 years imprisonment and the charges involving indecent acts carry maximum penalties of seven years imprisonment each.

[4]      In order to find you guilty, the jury must have accepted the evidence of the complainant and rejected your version of events.   [Mr Wilson, please turn around and face me while you are being sentenced].

Background to offending

[5]      The background to this particular offending is important.

[6]      On 5 October 2005, you were involved in an incident at Tokomaru Bay, during which on two occasions you fondled the penis of a 14 year old boy and then performed oral sex on him on two separate occasions.  I accept that you admitted this offending to the Police and, indeed, brought it to their attention; for which you are entitled to some credit.

[7]      Having entered pleas of guilty, you were sentenced to two years and one week’s imprisonment on 22 December 2006.1   It has to be said that you were treated very leniently by the sentencing Judge on that occasion; probably because he did not see any indicators of predatory sexual conduct in what had occurred.

[8]      I have  seen  the  Parole  Board  decisions  relating  to  your  applications  for parole, after you became eligible on 4 August 2007.  Initially, there was a need for the Te Piriti Sex Offenders’ treatment programme to be completed, which you did. There was a report by a psychiatrist which had been completed before your guilty pleas were entered in the District Court, which recommended drug and alcohol rehabilitation programmes and a continuing involvement with local mental health and addiction services.   Subsequently, you also completed other programmes and had a relapse prevention plan put into effect.

[9]      On 4 June 2008, having served 18 months of your sentence, the Parole Board released you into the community on strict terms.  One of those terms, of which you were well aware at the time, was not to associate or otherwise have contact with any person under the age of 16 years, unless under the direct supervision of an informed adult approved by a probation officer.   The term “informed adult” was defined as one over the age of 20 years who was fully aware of the previous offending and high risk situations.

The present offending

[10]     You were released from prison on 23 June 2008.  Within a couple of weeks after your release, you began to spend time alone with a 13 year old boy who was known to you at the time.  No attempt was made by you to obtain consent from a probation officer for that association.  In my view, you deliberately disobeyed that term of your parole, despite its obvious importance to regulating your conduct after release from prison.

1 R v Wilson DC Gisborne DRI 2005-016-3394, 22 December 2006.

[11]     The present offending on which you appear for sentence occurred between 9

September and 15 December 2008.  That means it started about three months after your release on parole.  At that time you were aged 27 years.

[12]     The offending took place during a period when you befriended the 13 year old boy and had him travel with you to various locations where you worked.  The offending took place in the shearers’ quarters on Wharekopai Station and at a farm on Matukituki Valley Road, in a cottage at that property.  One offence also occurred at a beach in Gisborne.

[13]     The offending consisted of you sucking the complainant’s penis on three occasions, three attempts to insert your penis into the complainant’s anus and three distinct indecent acts; one by placing your arm between the complainant’s legs with a hand on his crotch, one of walking into the bedroom with your pants off and exposing your genitals to the complainant and asking him to suck your penis and one of displaying your penis to the complainant and asking him to suck it.

[14]     I accept what your counsel Mr Forster has said in relation to the attempts at sexual  violation  by  penetration  of  the  anus.    I  consider  that  the  complainant overstated the degree of constraint you placed on his movements and I am prepared to assume in your favour that you made a conscious decision not to complete that particular offence, though intending that it occur in the first place.

[15]     The victim impact statement tends to minimise the ill-effects suffered by the victim as a result of this offending.  It is difficult to see how it could not have some lasting psychological effect.  My own assessment, having seen the complainant give evidence, was that he was trying to portray a staunch stance.  I take the view that he has suffered from the offending, but the degree to which that has occurred is uncertain.

Reports prepared for sentencing purposes

[16]     The pre-sentence report shows that you continue to deny the offending.  As a result of that continued denial, you are clearly unremorseful.  It is indicated that you

plan to challenge your convictions.  That is your legal right and I do not hold that against you for sentencing purposes.

[17]     The  pre-sentence  report  also  demonstrates  a  difficult  upbringing  and problems arising from that.  I accept, however, from the evidence I heard and from other sources, that you are a hard worker and a good worker.   The concerns with which I am dealing arise out of your behavioural characteristics, rather than anything else.

[18]    The psychiatrist’s and psychologist’s reports obtained for the purpose of considering the indefinite sentence of preventive detention, both indicate unusual behaviour  and  inconsistent  self-reporting  of  various  incidents.    They  refer  to treatment for sexual offending at the Te Piriti programme.  The psychologist reports that you told him that you had difficulty in attending the treatment programme and did so because you were under duress to complete it.

[19]     The psychologist’s view is that while you were able to intellectualise the treatment information you received, you were unable to apply it when released into the community.   The psychologist assesses you at medium to high risk of serious sexual reoffending.

[20]     The psychiatrist says that there is no psychiatric illness from which  you suffer but concludes “it is predictable if you were placed under similar circumstances and under the influence of alcohol or cannabis, you would be at high risk of reoffending”.  You have a history of cannabis abuse, as well as alcohol abuse.

[21]     In addition, a “bizarre belief system” is reported, though I do not go into the detail of that as I do not consider that it adds anything to the sentencing exercise.

Submissions

[22]     In submissions today, Mr Forster, on your behalf, has urged me to impose a finite sentence with a minimum non-parole period.  He submits also that in relation to  the  possibility  of  preventive  detention  the  principle  that  a  finite  sentence  is

preferable should be applied2 particularly given the availability of an extended supervision order at the end of the sentence.

[23]     Mr Collins, for the Crown, submits that preventive detention is the most appropriate sentencing option and that a minimum period of five years imprisonment should be imposed.

Analysis

[24]     Sexual offending involving contact between the penis and a mouth is very serious.  The way in which society views such offending is reflected in the maximum penalty available on sentence, namely one of 20 years imprisonment.  I consider that there is a high degree of culpability in relation to your offending.

[25]     After  release  from  prison,  despite  knowledge  of  the  need  to  apply  the principles you had learnt in the Te Piriti programme and the terms of your parole, in particular not associating with anyone under the age of 16 years without approval, you were prepared to act deliberately when offending in this way.

[26]     You developed a close relationship with the young boy with the knowledge of his family.  They were prepared to allow him into your care.  Although the boy and his family were close to you, some of the steps I heard in evidence suggest that some attempt to groom were involved.

[27]     The offending was premeditated not merely opportunistic.   The young boy was vulnerable, both because of his age and his circumstances.

[28]     Parliament has made it clear in recent times how seriously violent offences against children under the age of 14 years are to be treated.3    And sexual violation and attempted sexual violation are clearly acts of power, involving violence.  Courts are required to take account of the defencelessness of such a victim, the magnitude of  any  breach  of  trust  and  any  threats  to  prevent  a  victim  from  reporting  the

offending.  All of those are to be regarded as aggravating factors.  There is also the prolonged nature of the offending in issue.

[29]     I consider first what finite sentence would be imposed if preventive detention were not appropriate.  I will then consider separately whether preventive detention is the most appropriate sentencing option.

[30]     In a recent decision of our Court of Appeal, penile penetration of the mouth was equated to rape.4   In this case, you coerced the complainant into allowing you to suck his penis.  In real terms, I see no difference in principle between an offender who actively penetrates the mouth of a complainant with his penis and a case in which the victim is coerced to connect his mouth to the offender’s penis.  Further, I see nothing in the Court of Appeal judgment to suggest a different approach should be taken.   While I intend to make some adjustment in relation to the aggravating factors in relation to starting point, that is my approach.

[31]     I take  account  of  the  breach  of  trust,  the  duration  of  the  offending,  the vulnerability of the victim and premeditation.   I will take a starting point of nine years imprisonment on the sexual violation charges.  To that I would add a period of two years imprisonment to reflect prior offending, offending in breach of parole conditions and the attempts you made at the end of the period to deflect attention from yourself by making a false complaint about the complainant’s father to the authorities.  On that view, the end sentence would be 11 years imprisonment.

[32]     The next question is whether preventive detention is the more appropriate option.

[33]     To impose a sentence of preventive detention, I must be satisfied that you have been convicted of a qualifying sexual offence, that you are over 18 years of age and that you are likely to commit another qualifying offence, if released at the sentence expiry date.5   All offences on which you have been convicted are qualifying offences, as were the 2005 offences in Tokomaru Bay.

[34]     You are over the age of 18 years.  In considering whether you are likely to commit another qualifying offence, I take account of the need for you to serve a finite sentence of 11 years should I decide not to impose that sentence.

[35]     The purpose of preventive detention is to protect the community from you.6   I must take into account the pattern of serious offending, the seriousness of the harm to the community of your offending, any information regarding your tendency to commit similar offences in the future and your prior failure to address the causes of your offending.7

[36]     After  making  due  allowances  for  the  difficulty  in  making  predictive assessments of any particular individual, I am satisfied that a sentence of preventive detention is required to protect the community adequately from you.

[37]     I now give my reasons for reaching that conclusion:

a)       First, I consider it is likely that you will commit another qualifying sexual offence after release from a finite term of imprisonment, even one of 11 years.  The pre-sentence report writer assesses your risk of reoffending as high.   One of the specialists from whom the reports were obtained for preventive detention purposes agrees with that assessment, particularly if you remain under the influence of cannabis or alcohol.  The psychologist considers you are at medium to high risk of  serious  sexual  offending.    Those  assessments  are  unsurprising given your offending occurred so soon after release from prison when your ability to remember and apply the principles taught at the Te Piriti programme should have been at its peak.

b)Second, the pattern of your offending causes serious concern about your likely conduct after release.  You sexually violated a 14 year old boy in 2005 and did likewise in 2008, not long after release from

prison.     Past  behaviour  is  usually  the  best  predictor  of  future behaviour.

c)       Third, the seriousness of the harm done by this type of offending to the community is well understood.  Those who act in this way towards vulnerable adolescents cause great concern to parents of children of that age.

d)Fourth, your failure to address adequately your tendency to commit sexual offences while in prison for the Tokomaru Bay offending, even though the opportunity was given, causes further concerns.

e)       Fifth, there are disturbing aspects of your character and mental health conditions revealed by the specialist reports.   Indeed, independently each came to the view that you present as if you have some symptoms of  schizotypal  personality  disorder.    That  is  something  also  that should be looked into and managed for the purpose of community protection.

f)        Sixth, your denial of the present offending does not bode well for successful interventions to treat your underlying problems.

g)       Seventh, a finite sentence coupled with the possibility of an extended supervision order is unlikely to be sufficient, given your willingness to offend while on parole in the present case.

[38]     In sentencing you to preventive detention, I am required to determine the minimum time you should be imprisoned.

[39]     I work on the basis that the minimum time should equate to the time that you would have the opportunity to undergo further counselling and treatment and hopefully get yourself into a position where you are safe to be released into the community.  I fix that minimum term of five years imprisonment.

[40]     That means that is sufficiently short to give you an incentive to comply with the requirements of the prison authorities to undergo these programmes and to learn from it, while giving the assurance that any release on parole after that time would be with the benefit of well considered medical opinion.  [Quiet please.  If you wish to do anything about the sentence you have rights of appeal and that is your right but for present purposes please listen to what I say uninterrupted and I will the  finish the sentencing remarks].

Result

[41]     Mr Wilson, on each charge that you have been convicted, you are sentenced to serve a sentence of preventive detention with a minimum period of imprisonment of five years.

[42]     Stand down, please.

P R Heath J