R v Wyatt
[2022] NZHC 133
•9 February 2022
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHECRI-2019-019-003516 [2022] NZHC 133
THE QUEEN v
NICHOLAS BRIAN WYATT
Hearing: 9 February 2022 Appearances:
R Guthrie for Crown G Walsh for Defendant
Judgment:
9 February 2022
SENTENCING NOTES OF VENNING J
Solicitors: Hamilton Legal, Hamilton Counsel: G Walsh, Hamilton
R v WYATT [2022] NZHC 133 [9 February 2022]
[1] Nicholas Wyatt, you appear for sentence in this Court having pleaded guilty to meeting a young person following sexual grooming and to two representative charges of sexual conduct with a young person under 16. The District Court Judge who took the pleas convicted you and remanded you to this Court for sentence.
[2] The maximum penalty for the sexual conduct offending is 10 years’ imprisonment.
[3] I note the Crown does not offer any evidence on the remaining charges in the charge notice and you are discharged in relation to them.1
[4] I am to sentence you on the basis of the summary of facts you pleaded guilty to.
[5] That discloses that in May 2016 you commenced a romantic relationship with the victim’s older sister. The relationship only lasted a short period of time. During the course of that relationship you were introduced to the victim who at the time was 13 years old. You were 31 or 32.
[6] On one occasion you were at the victim’s home socialising with her parents. As she walked past, you slapped her on the buttocks. The following day you added her as a ‘friend’ on Facebook. You also started following the victim on Instagram, and began to contact her on the social media application Hangouts. You contacted her via social media on a daily basis.
[7] In June 2018 you saw the victim walking to school. She was 15 at the time. You offered to give her a ride to school. During that drive to school you kissed her and proceeded to rub and touch her legs. The victim attempted to push you away, however, you were persistent and kept touching her legs. You eventually dropped her at school. From then on, you contacted the victim suggesting times and dates when you could meet up either before or after school. At first she was reluctant to meet with you. However, you insisted on meeting her and offered her alternative times and dates to do so. She eventually agreed to meet.
1 Discharged on charges 2, 3, 4, 5 and 6 of the Charge Notice, dated 5 February 2021.
[8]The sexual offending occurred between June 2018 and September 2018.
[9] On the first occasion you had sexual intercourse with the victim, you met her after school and took her to a secluded location, parked the car, removed her clothing and had sexual intercourse with her in the back of the car.
[10] After the first incident of sexual intercourse, you thereafter took the victim to a secluded area at the back of Pukatirini where you would park in a carpark and have sexual intercourse with her. You had sexual intercourse with the victim in the back of the car on approximately 20 occasions. At the time of that offending against the victim you were 34 years old and she was 15.
[11] During this time you and the victim were communicating on Instagram messages. You talked about performing oral sex on each other. You also discussed the possibility of anally penetrating the victim. Between 1 July 2018 and 24 September 2018 you penetrated her mouth on two occasions with your penis.
[12] You have previously appeared before the Courts and are a registered child sex offender. At the time of the offending you were subjected to an Extended Supervision Order (ESO).
[13] The issue for the Court today is whether to impose a finite sentence of imprisonment for the offending, namely imprisonment for a number of years, or whether to impose a sentence of preventive detention. A sentence of preventive detention has no end date. You would only be released if the authorities are satisfied you no longer pose a threat to young people or the community generally.
[14] The first consideration is the appropriate finite sentence that would apply in the event one was to be imposed.
[15] The Crown submits a starting point of four to four and a half years’ imprisonment is required for the sexual connection charges with an uplift of one year to take account of the sexual grooming charge. It then says a further six to nine months should be added to take account the offending occurred while you were subject to an
ESO. That would lead to an adjusted start point of between five years, six months and six years, three months before considering mitigating factors.
[16] Mr Walsh submits an adjusted starting point for totality of four and a half years would be sufficient.
[17] The Court is required to consider the purposes and principles of the Sentencing Act 2002 to the extent they are relevant. In your case, the most relevant purposes are to hold you accountable for the harm you have caused, particularly to the victim, and also provide for her interests of the victim, but also to denounce your conduct, and deter such offending, and keep the community safe. To the extent possible the Court should also consider your rehabilitation and reintegration into the community.
[18] The relevant principles are the seriousness of the offending and your culpability. The Court is also required to have regard to other sentences for similar offending.
[19] I have had regard to the sentences imposed in a number of the cases of similar sexual offending which counsel have referred to.2 Perhaps the most relevant is the case of Johnson, a Court of Appeal decision where the Court observed that:3
We consider that the four year starting point in R v H is still a useful reference point in relation to sentencing for sexual connection with young persons, where the offending shares features present in that case. Particular aggravating features in R v H were abuse of trust, a significant age gap between the offender and the victim, full penetrative sex on a number of occasions, and significant adverse effects on the victim. Where aggravating features in R v H are present, a starting point of four years may be appropriate. Other aggravating factors not present in R v H may be seen as increasing culpability. Such features could include grooming, or abusive and demeaning behaviour. Where there has been no breach of trust as in R v H but the same aggravating features are present, a lower starting point will be appropriate. A different combination of aggravating and mitigating factors might produce yet another result. It follows that the starting point of four years should be seen as no more than a mid-point in the range of offending where there is moderate culpability.
2 Fa’afuata v New Zealand Police HC Auckland CRI-2009-404-33, 3 April 2009; R v Johnson [2010] NZCA 168; R v H [2008] NZCA 237; R v A [1994] 2 NZLR 129 (CA); Campbell v Police [2017] NZHC 2611; R v Holster HC Christchurch CRI-2008-009-016039, 8 July 2009; Fifield v R [2017] NZCA 410; Hessell v R [2010] NZSC 135; R v Wyatt HC Hamilton CRI-2007-019- 9805, 10 June 2009; Carr v R [2020] NZCA 357; Poi v R [2020] NZCA 312; R v Stacey [2008] NZCA 465; R v Mist [2005] 2 NZLR 791; Bell v R [2017] NZCA 90.
3 R v Johnson, above n 2, at [17].
[20] In your case I consider there to be a number of aggravating features of the offending:
(a)disparity in age – you were more than twice the victim’s age;
(b)premeditation – you targeted the victim and groomed her to enable you to have sex with her. You also persisted and wore down her initial resistance;
(c)the victim impact;
(d)the length of the offending – the full sexual offending occurred over a period of four months; and finally,
(e)I agree with Mr Walsh, at most, a perhaps modest breach of trust. Your access to and introduction to the victim was through her sister and you were welcomed into the family.
[21] Having regard to the above considerations, in particular your culpability, I regard your offending to be significantly more serious than the case of R v Fifield relied on by Mr Walsh.4 I take a starting point of five years to reflect the totality of your offending. A further uplift is required to reflect your previous offending and the fact you offended while subject to an ESO. However, I do temper that to take account of the fact you have been separately sentenced for that. I add an uplift of six months.
[22] I turn to mitigating factors personal to you. Mr Walsh refers to the s 27 report. That does disclose a troubled background. I acknowledge that may have conditioned you in a way, which may be relevant to your offending. However, any reduction for that must in the circumstances and given the ongoing nature of your offending be modest.
[23] Mr Walsh also seeks a reduction on your behalf for remorse. I do not accept you are genuinely remorseful. While you have written to the victim expressing
4 Fifield v R, above n 2.
remorse your attitude appears from the reports before the Court. You told the probation officer you knew what you were doing but did not think you would be caught. You also described your offending as a mistake.
[24] Taken overall the expert reports do not support a finding you are truly remorseful. While Dr Saheb suggests that in part it is frankly likely to be self-serving and a recognition of the situation that you face.
[25] The most significant reduction from the starting point is for your guilty plea. You are entitled to a credit for that, which I fix at 15 per cent. It cannot be higher. The plea came late, and in the face of a strong Crown case. The total reduction for mitigating factors taken overall would be 20 per cent.
[26] In summary, if this Court was to impose a finite sentence upon you for this offending it would be a sentence of four years, four months. The minimum non-parole period would also be required to reflect the seriousness and circumstances of the offending. The interests of denunciation, deterrence, protection of the community and holding you accountable would require the imposition of a longer minimum term than the standard.
[27] As I have said, however, the real issue is whether I am required to impose the indeterminate sentence of preventive detention. Such a sentence requires the imposition of a minimum of five years’ imprisonment.5
[28] You qualify for consideration of a sentence of preventive detention. The sexual offending is a qualifying offence. You are obviously over the age of 18. The Court is then required to take into account the factors set out in s 87(4) of the Sentencing Act 2002. Preventive detention may be imposed if it is necessary to protect the community because of the risk you pose.
[29] The Court of Appeal has confirmed that preventive detention is not to be regarded as a sentence of last resort.6 It is not a sentence that can only be imposed
5 Sentencing Act 2002, s 89.
6 R v C [2003] NZLR 30 (CA).
after other sentencing options have been tried without success, although in your case you have previously been subject to terms of imprisonment which have been followed by further offending. Your past offending has been both violent and sexual.
[30]The factors I am required to take into account are:
(a)any pattern of serious offending disclosed by your history;
(b)the seriousness of the harm to the community caused by your offending;
(c)information indicating a tendency to commit serious violent offences in the future;
(d)the absence of or failure of efforts by you to address the cause or causes of the offending; and
(e)the principle that a lengthy finite sentence is preferable if it provides adequate protection for the community.
Any pattern of serious offending
[31]Mr Wyatt you undoubtedly have a pattern of serious offending.
[32] Your offending dates back to 1999 and includes kidnapping, aggravated robbery, and previous offending against children and minors.
[33] You have been involved in sexual offending on two previous occasions. The first was in 1999 when you were 14 years old. The offending was against a young male relative. More relevantly, you offended by committing indecent acts and sexual connection in 2006 when 20 years old. The victim at that time was a 13 year old girl.
Seriousness of the harm to the community
[34] Your past offending has also involved the use of weapons and both the violent and sexual offending has caused harm to the victims. The victims of your offending
have various and different backgrounds in relation to both the sexual and violent offending.
A tendency to commit serious offences in the future
[35] You have been assessed by a forensic psychiatrist and a senior clinical psychologist. Both have identified that you have several risk factors.
[36] Ms Tapara used a number of different risk assessment tools and assessed you as a high risk of further offending within five years of release from prison and that it is likely the risk of further sexual offending will endure over time.
[37] Dr Saheb diagnosed you with an anti-social personality disorder. You have a number of cognitive distortions that maintain a high risk of offending.
Absence of failure of efforts to address the cause
[38] In 2005 – 2006 you completed a substance abuse programme. More relevantly you completed the Te Piriti Special Treatment Programme in 2012, a programme specifically directed at addressing sexual offending against children. But despite that, you committed your recent offending. Of concern, you have also exhibited some sexual contact with other prisoners.
[39] It is also relevant you offended in this way over a period of four months despite being subject to the constraints of an ESO.
[40] Ms Tapara’s report had some positive features for you but overall she noted you still have two distinct underlying contributions to your behaviour: impulsivity and a desire to assert your autonomy.
[41] Dr Saheb noted that you appear to have a lack of motivation to engage in programmes at anything more than a superficial level. You appear to have difficulty accepting full responsibility for your actions.
[42] Mr Wyatt you say through counsel that you want to take steps to address your offending. I have to observe that you have had the opportunity to do that and were warned of the consequences if you did not.
[43]In 2009, when sentencing you, Ronald Young J said:7
[29] … You are still a young man and were very young when some of the serious offending was committed. I am conscious given your youth that some hope can reasonably be held open that a lengthy determinate sentence, together with extended supervision is preferable for public protection.
[30] But I want to say this to you, Mr Wyatt, whatever the rights and wrongs of the previous rehabilitation you will now have a chance to participate in what experts think are programmes that are suitable for you. … If you do not accept that then in my assessment it is virtually inevitable you will re- offend and if you do so next time in a serious sexual or violent way a sentence of preventive detention is inevitable.
[44] Taken overall the reports before the Court suggest you still lack proper insight into your offending. In R v Flightly the Court of Appeal held that although the offender was motivated to undertake rehabilitation the lack of insight into the causes of the offending, perception of unjust treatment and the fact he had previous unsuccessful attempts at rehabilitation counted against him.8 Similar features can be said to apply to your case.
Principle of the length of determinate sentence
[45] Mr Walsh has submitted strongly that a determinate sentence could provide adequate protection for the community. However, a four year, four month sentence, even with the minimum non-parole period attached and the constraints of an ESO may not in your circumstances be sufficient to address the risk you pose to society, and young and vulnerable children in particular. As noted you have breached the current ESO on 17 occasions.
[46] Dr Saheb considers preventive detention may be the only way to ensure you engage with appropriate programmes.
7 R v Wyatt HC Hamilton CRI-2007-019-9805, 10 June 2009.
8 R v Flightly [2009] NZCA 173.
Consideration
[47] Standing back, as the Court must do, and determining how to exercise its discretion in light of the above considerations the ultimate issue is whether the ongoing risk you pose to the safety of the community can only be addressed by the imposition of preventive detention.
[48] I have carefully considered the implication of s 89 of the Sentencing Act 2002. That has the effect of requiring the Court to impose a minimum term longer than the proposed finite term. However, that is a consequence of the imposition of a sentence of preventive detention and as a measure of protection for the community. It is a relevant consideration but it is not a determinative factor against the imposition of an otherwise appropriate sentence of preventive detention.
[49] Mr Wyatt, in my judgment the causes of your offending are deep-seated within you. I consider you to be a high risk of reoffending.
[50] The risk cannot be met by a finite term even bearing in mind the possibility of another extended supervision order on your release. To date you have failed to comply with the ESO you have been subjected to.
[51] You appear to have little or no insight into your offending. You lack empathy for victims and the people you harm. Your offending and the risk you pose the community is such that a sentence of preventive detention is required.
[52] Please stand. Mr Wyatt on the charges of meeting a young person following sexual grooming and sexual conduct with a young person under 16 you are sentenced to preventive detention.
[53]You are to serve a minimum term of five years’ imprisonment.
[54]Stand down.
Venning J
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