R v Woodhouse

[2013] NZHC 610

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

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2011-009-9520 [2013] NZHC 610

REGINA

v

BARRY RONALD WOODHOUSE

Hearing:         26 March 2013

Counsel:         B Hawes for Crown

S Bailey for Prisoner

Judgment:      26 March 2013

SENTENCING OF PANCKHURST J

Introduction

[1]      Mr Woodhouse, what  I have to say in sentencing you this morning will occupy some minutes, so you may remain seated and I will ask you to stand at a later point.

[2]      As you know you are for sentence in relation to offences of sexual connection with a young person, a girl under 16 years of age, and indecent assault upon that

same girl.

R V WOODHOUSE HC CHCH CRI 2011-009-9520 [26 March 2013]

[3]      In relation to those matters you were convicted following trial in the District Court in May 2012.   The trial Judge, Judge McDonald subsequently declined jurisdiction and committed you to this Court for sentence because the Crown indicated its intention to seek a sentence of preventive detention.

[4]      There is also a charge of breaching an extended supervision order, to which you have very recently pleaded guilty, and which has been transferred to this Court so that all matters could be dealt with at once.  That charge relates to the same girl, and the breach is that as a result of the extended supervision order to which you were subject, you were not to associate with girls under 16 years of age, unless that was supervised through the presence of another informed adult.   In breach of that condition in early 2011 you were in association with this young girl over a period of some months.

The present offending

[5]      The present offending occurred as I have just noted in 2011, and when the complainant was aged 15 years.  She turned 16 years of age on 30 June that year. You knew her age because it had been the subject of discussion and at one point she had actually shown you her passport.   You met through mutual acquaintances, although of course you were then 53 years of age, but nonetheless mixing in the company of much younger people.

[6]      On a night shortly before the February earthquake she stayed over at your house.   By that point there had been a deal of contact including text messages, provision by you of alcohol to her, and you had also sent her sketches accompanied by a poem, which had a blatantly sexual content.  During the night of the stay over, you had intercourse with her.  Her description of that at trial, was that you simply climbed on top of her, intercourse occurred, and she felt sick.

[7]      The indecent assault occurred in August 2011.  The complainant was one of a group of four young people who came to your home. A drinking game ensued. As a result, she became intoxicated and went into your bedroom to lie down.  You must have entered the room, and were in the process of removing her lower clothing,

when she called out.  This alerted others, who went into the room, observed you at the bed and found that the complainant was partially unclothed, although still in a fairly intoxicated state.  You were abused by a female friend of the complainant,  but you denied that anything untoward had taken place.   Clearly, Mr Woodhouse, the circumstances, the state of her clothing, showed that that was not so.

[8]      One  of  the  documents  I  have  read,  amongst  many,  is  a  victim  impact statement from the complainant.  She has suffered significant impacts as a result of this offending.  These include what she has described as unease in the presence of some older men.  She has also spoken of anxiety and isolation.  She found giving evidence at your trial, and in your presence, although screened, to be traumatic.  She is presently in receipt of counselling in an endeavour to overcome the problem from which she has suffered.

Background and past offending

[9]      I note that you are now 55 years of age.  You come from a family of eight, and I am in little doubt Mr Woodhouse that you had a difficult upbringing.  Without going into detail, there were problems with alcohol in the home, physical abuse and also sexual abuse.  On top of that you lost your father when you were 14 years of age, left school at about the same time and a short time later to use your phrase ‘you were kicked out of home’.

[10]     Your offending, however, began when you were about 20 and for the first roughly 20 years you incurred about 16 convictions, mainly for dishonesty, burglary and theft, driving and generally anti-social behaviour.  When you were 41 in 1998, you committed the first of a number of serious sexual offences which bring about your predicament today in that the Crown is seeking a sentence of preventive detention.

[11]     This was the rape of a 15 year old girl, the daughter of your then partner, and effectively your step-daughter.  You provided her with alcohol, then in a car as you were driving her home, you stopped and had intercourse with her.  On that occasion,

you  pleaded  guilty  to  rape,  and  in  the  result  were  sentenced  to  six  years imprisonment.

[12]     The next offence was in 2005 when you were aged 49, almost 50 years.  The girl on this occasion was 14 years of age and apparently engaged in prostitution. You befriended her and as on the previous occasion, gave her alcohol, but also the drug temazepam.  There was then sexual activity which ultimately, following a trial, culminated in a conviction for indecent assault.  For that you were sentenced to five years imprisonment, and I note that the Judge in the District Court gave you a final warning,  Mr Woodhouse,  that  further  offending  could  very possibly  result  in  a sentence of preventive detention.

[13]     You were finally released from that sentence in early 2010, but subject to the extended supervision order to which I made reference earlier.  The term of that order was 10 years.  It included stringent conditions, one of which was the non-association order that I outlined earlier.   I note there was a breach of that order in July 2010 when you stayed overnight in Westport, that not being your approved address and then you breached the order again, as I have already outlined in 2011 and in relation to the same complainant, girl.

Expert reports

[14]     Counsel have already mentioned that there are a number of expert reports before me, all of which I have considered at length.  These reflect the sentencings, the parole hearings, the extended supervision order application, and now the application of the Crown for you to be sentenced to preventive detention.  All of these events have resulted in your being assessed on any number of occasions, and in the result there is a wealth of information available as to your background and personality.

[15]     One report prepared specifically for this morning is a psychiatric report from Dr  Helen Austin.    She  confirms  that  there  is  no  indication  of  a  mental  health problem, nor any recent history of alcohol or drug abuse on your part.  It seems that your personal use of alcohol has been moderate, and that in addition you have had

some passing acquaintance at least with cannabis.  Her report shows that the main relevant personal characteristic is your sexual deviancy, your attraction to adolescent girls.  She records that you were not prepared to discuss the offending and that you became agitated when asked to do so.  No doubt this attitude reflected your comment that you “had done time” for what had occurred in 1998, but denied the subsequent offending in 2005 and 2011, and hence did not want to discuss it.

[16]     You also told her that you did not think you presented any risk to adolescent girls.  If anything you said you were a person who liked to help other people with the result that people, including young girls, gravitate towards you.  She also noted your remarks to the effect that if you are sentenced to preventive detention, you will not do any programmes or accept any treatment while in prison, but if a fixed term sentence is imposed you may be inclined to participate in treatment and programmes. Her conclusion in relation to future risk was expressed in these terms:

Overall the historical and situational risk factors support the view that Mr Woodhouse poses a significant risk of further sexual offending in the following context:  the absence of further assessment and treatment of sexual arousal patterns and access to vulnerable victims.   If he does offend again potential victims would include adolescent girls with whom he has formed an acquaintance.

[17]     The Crown also obtained a psychological report from a registered clinical psychologist, Ms Cristina Fon.   She undertook specific testing in an endeavour to assess  your  risk  of sexual  recidivism.   This  included  testing by the  use of the automated sexual recidivism scale (ASRS), the Stable 2007 test and a PCL-R score, although that was obtained earlier in the course of your most recent prison sentence. This prompted her conclusion, expressed in these terms:

Mr Woodhouse is considered to be at high risk of sexual offending with this risk remaining relatively stable over the longer term.  This risk estimate is based  on  actuarial  measures  and  consideration  of  clinical  factors,  in particular his continued sexual attraction and offending against adolescent females over an 18-year-period, re-offending following his reportedly successful engagement and progress in treatment, re-offending following a previous  warning of  Preventive  Detention  and  re-offending while  on  an Extended Supervision sentence.   Mr Woodhouse is not considered to take any responsibility for his offending behaviour, does not understand and appreciate his risk, and is therefore unwilling to implement appropriate risk management strategies.

[18]     Ms Fon made a number of other pertinent observations.  She considers there is evidence of your continued sexual attraction to adolescent females.  She notes that although increasing age is typically associated with a reduction in risk, there is no evidence that this applies to you.  She was also concerned about your ambivalence concerning participation  in treatment,  unless  you can  bargain with the Court in relation to the sentence imposed.

[19]     I also have the benefit of a report obtained through your counsel, Ms Bailey, from another highly qualified clinical psychologist, Mr Prince.   He said that on account of an “emphatic denial” on your part in relation to the 2011 offending, he could see no point in conducting a full assessment, because the results were not likely to be greatly different to those arrived at by the other report writers.  But he reviewed their reports and raised two matters, for my attention.

[20]     The first is the link between denial of offending and recidivism.  Mr Prince referred to authorative research which indicates that denial on the part of sexual offenders in particular is a complex matter, and that there are a number of causes which lead offenders to deny their offending.  For example, resistance to the label of sex offender is in itself a high motivating factor.  He also noted the point that you appeared to be attempting to negotiate with the Court, in saying that you might be inclined to accept treatment if a sentence of imprisonment, but not preventive detention, was imposed.

[21]     That is a naive stance for you to take Mr Woodhouse, I cannot be influenced by an approach of that kind.  But most of all Mr Prince stressed in this context that a denial should not automatically lead to the thought that you represented an increased risk in the community because it is a more complex issue than that.  He did however go on to say that what your denial means is that there is an obstacle in the way of your co-operating and accepting treatment, and that may indicate as he said, that you are in need of some other programme, perhaps in the nature of straight thinking so that you can better understand the predicament you face.

[22]     His second concern related to the ASRS test as reported by Ms Fon.   Mr

Prince  referred  to  more  recent  research  data  which  suggests  a  less  pessimistic

recidivism profile for men in your age group.  While I appreciate and understand the significance of this point, to my mind the most important indicator of the risk that you pose has been your own sexual behaviour over the past 12 or 13 years.  Soon after you have been released, and while subject to an extended supervision order on the last occasion, you offended again, this only a couple of years ago and not far removed from now.

What then is the appropriate sentence?

[23]      The first step is to establish what a fixed term sentence would be in this case. Mr Hawes in his written argument went through this exercise in some detail.   By reference to Court of Appeal decisions, he suggested that a starting point of three and a half years was required for the offence of unlawful sexual connection, and a further six or 12 months for the indecent assault, to arrive at a starting point in a range of four to four and a half years.

[24]     Mr  Hawes  then  submitted  that  an  uplift  was  required  because  of  your previous offending and the risk that you pose and also because of the aggravating factor that you were subject to an extended supervision order at the time of this offending in 2011.  On that score, he contended that the uplift would need to be 18 months or two years to produce an end sentence in a range as high as five and a half or six and a half years.

[25]     Ms Bailey disagreed with this assessment.  First of all, the starting point she contended should be of the order of three or three and a half years.  She also doubted whether it was appropriate to arrive at an uplift by reference to both your previous convictions and the fact that you were subject to an extended supervision order in

2011.  She suggested this gave rise to double counting.  In the end result, Ms Bailey contended that you should be sentenced to four or four and a half years, and urged me to the view that this was the appropriate sentence, not preventive detention.

[26]     I am in broad agreement with the approach that Mr Hawes outlined in his submission.  I do think that the existence of the extended supervision order was an aggravating factor, since that is a protective order intended really to protect you from

yourself, if you had complied with its conditions.  In my view, an end sentence in the range of five to six years imprisonment in relation to the twin offences of unlawful sexual connection and indecent assault is indicated.

[27]     The  much  more  pressing  question  however,  Mr  Woodhouse,  is  that  of preventive detention.  Ms Bailey rightly accepted that you qualify for this sentence on account of your age and because these two crimes are qualifying offences.  The real issue is that before that sentence may be imposed, I must conclude that you are likely to commit another sexual offence upon release from a fixed term sentence, say in six years time or upon your earlier release.   In answering that question, I must look at a number of considerations.  The first is whether there is a pattern to your offending.    Obviously  there  is.    You  offend  against  adolescent  girls,  you  also typically use alcohol and possibly drugs in order to secure their compliance.  You now face a situation where there are three such offences, representing this pattern, and committed in a period of 12 or 13 years during much of which you were in prison,  but  nonetheless  you  found  the  opportunity  to  offend  during  the  briefer periods you were at large.

[28]     I accept Ms Bailey’s point that at least your offending does not appear to be escalating, it remains if anything at much the same level, or possibly not as bad as it was some years ago.

[29]     The next consideration is the seriousness of harm you have caused.  I have only seen the victim impact statement from the most recent complainant, but there is a body of evidence with which I am well familiar that shows that offending of this nature, against adolescent girls, is ordinarily serious and has lasting impacts.

[30]     The next factor is your response to treatment and programmes and whether you might be receptive to treatment at this stage.  The bare facts are that following your first sentence of imprisonment, you satisfactorily participated in a Kia Marama programme.  After that you were released from prison, but in 2002 you had to be recalled, because you had attempted to contact your step-daughter, and in the end result you served the balance of that term.  Following your sentencing in 2005, you were not co-operative in the prison environment, indeed hostile I think is the word

used in one of the reports, and so you did not participate in any programmes of treatment during that sentence.  The extended supervision order was made and you again offended within a period of about 12 months from its imposition.

[31]     These facts I am afraid Mr Woodhouse speak for themselves, and really provide no cause for optimism that you will if sentenced to a fixed term of say six years imprisonment, meaningfully co-operate with the prison authorities in an endeavour to alleviate the risk that you obviously pose to adolescent girls.

[32]     Finally, and importantly, I must consider a principle which is that if a lengthy fixed term sentence would provide adequate protection to society it is to be preferred over a sentence of preventive detention.  I have reflected on that question for quite some time Mr Woodhouse.  Regrettably I am not satisfied that a term of even six years imprisonment would meet the risk which you pose in the community.  I think it is clear in light of all the material before me, that you pose a significant and ongoing risk to the safety of young girls.

[33]     Could you stand up please.

Sentence:

[34]     As a result, the only adequate response is to impose a sentence preventive detention.

[35]     That  sentence  is  imposed  in  relation  to  the  crimes  of  unlawful  sexual connection  and  indecent  assault.     In  relation  to  the  breach  of  the  extended supervision order, you are sentenced to 12 months imprisonment, as I regard that offence as effectively part and parcel of the more serious offending.   I must also consider a minimum term of imprisonment.  In your case I fix that at five years, and I arrive at that term by reference to the minimum period before the risk that you pose will require reassessment.

[36]     Finally, Mr Woodhouse, I note that on 30 October in the District Court when you were committed to this Court, Judge McDonald, the trial Judge both entered

convictions and also gave you the warning that is required in terms of the three strike legislation.  You recall that?  You were also provided with a written notice, you have had that notice?   [nods]  You understand do you, that you are now subject to that legislation and the consequences of further offending? Thank you.

I shall not therefore repeat the warning which has already been given and which you have in writing. You may stand down.

Solicitors:

B Hawes:  [email protected]

S Bailey:  [email protected]