Rowe v The Queen
[2005] NZCA 44
•14 March 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA385/04
THE QUEEN
v
JOHN CHRISTOPHER ROWE
Hearing:7 March 2005
Court:William Young, Randerson and Robertson JJ
Counsel:W N Dollimore for Appellant
M D Downs for Crown
Judgment:14 March 2005
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
(Given by William Young J)
Introduction
[1] In the early afternoon of 30 June 2003, a female tourist was admiring the geothermal mud pools at Kuirau Park in Rotorua. The appellant observed the woman for some time. He then crept up behind her. He forced his hand between her thighs and grabbed her in the area of her genitals.
[2] The appellant was prosecuted for indecent assault. He pleaded guilty in the District Court and was committed to the High Court for sentence. In that Court there was a hearing of evidence (including evidence from the complainant by video link) as to the facts associated with the offending. The Judge (Harrison J) found against the appellant on that dispute and, on 7 July 2004, sentenced him to preventive detention and fixed a six year minimum period of imprisonment.
[3] The appellant now appeals against sentence.
The statutory criteria for the imposition of preventive detention
[4] Because this appeal turns primarily on the issue whether preventive detention was appropriate, we remind ourselves of the relevant statutory criteria provided for in s 87 of the Sentencing Act 2002:
87 Sentence of preventive detention –
(1) The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.
(2) This section applies if –
(a) a person is convicted of a qualifying sexual or violent offence (as that term is defined in subsection (5)); and
(b) the person was 18 years of age or over at the time of committing the offence; and
(c) the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is release at the sentence expiry date (as specified in subpart 3 of Part 1 of the Parole Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.
(3) The High Court may, on the application of the prosecutor or on its own motion, impose a sentence of preventive detention on the offender.
(4) When considering whether to impose a sentence of preventive detention, the court must take into account –
(a) any pattern of serious offending disclosed by the offender’s history; and
(b) the seriousness of the harm to the community caused by the offending; and
(c) information indicating a tendency to commit serious offences in future; and
(d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
(5) In this section and in sections 88 and 90, qualifying sexual or violent offence means –
(a) a sexual crime under Part 7 of the Crimes Act 1961 punishable by 7 or more years’ imprisonment; and includes a crime under section 144A or section 144C of that Act; or
(b) an offence against any of sections 171, 173 to 176, 188, 189(1), 191, 198 to 199, 208 to 210, 234, 235, or 237 of the Crimes Act 1961.
[5] In fixing a minimum period of imprisonment, Harrison J was acting pursuant to s 89(1) and (2) of the Sentencing Act 2002, which provide:
89 Imposition of minimum period of imprisonment
(1) If a court sentences an offender to preventive detention, it must also order that the offender serve a minimum period of imprisonment, which in no case may be less than 5 years.
(2) The minimum period of imprisonment imposed under this section must be the longer of—
(a)the minimum period of imprisonment required to reflect the gravity of the offence; or
(b) the minimum period of imprisonment required for the purposes of the safety of the community in the light of the offender’s age and the risk posed by the offender to that safety at the time of sentencing.
The appellant
[6] The appellant is 31 years of age. He has a partner and three children.
[7] The appellant’s previous offending includes:
(a)Two offences of indecent assault and one of performing an indecent act, committed in 1987;
(b)Performing an indecent act, committed in 1988;
(c)Attempted sexual violation, committed in 1990;
(d)Performing an indecent act, committed in 1991;
(e)Sexual violation by unlawful sexual connection, committed in 1992;
(f)Indecent assault and performing an indecent act, committed in 1993;
(g)Performing an indecent act, committed in 1994;
(h)Performing an indecent act, committed in 1996; and
(i)Two offences of performing an indecent act, committed in 1997.
[8] His other convictions include two for burglary.
[9] The appellant had previously been sentenced to imprisonment on a number of occasions, most recently in November 1998 for sexually violating and indecently assaulting his cousin in 1992 and 1993. When he sentenced the appellant to five years imprisonment for this offending, Heron J made it clear to him that he had narrowly escaped a sentence of preventive detention:
It hardly needs to be said Rowe, that if you do not heed this sentence, and the courses and stay out of trouble, using all the facilities that will be available to you by way of follow up courses after prison, then the next time you appear in court on sexual offending, you will certainly be sentenced to preventive detention. I have given sufficient detail in this sentence for whoever does sentence you again, if you do reoffend, to ensure that you will be put away indefinitely, and it means just that.
[10] During his many interactions with the criminal justice system, the appellant has frequently been assessed and has received treatment intended to address his offending.
[11] The pre-sentence report described the appellant as having a “propensity for predatory sexual behaviour” and went on:
... and given that he has already been engaged in an intensive rehabilitative programme, his risk of re-offending is assessed as very high. This risk is particularly of concern when an established sex offender such as John Rowe is also committing Burglaries.
The report also referred to a propensity for violence and offence-related sexual arousal (in particular, a thrill associated with the covert pursuit of victims prior to offending).
[12] Harrison J had the advantage of reports from a psychiatrist, Dr Peter Dean and a psychologist, Ms Joan Norrie.
[13] Dr Dean, in his report, was non-committal as to the likelihood of future offending:
It is extremely problematic to assess the risk of re-offending some distance in the future after a lengthy prison sentence. In the absence of a mental illness, it is almost certainly beyond the expertise of psychiatry to do so, therefore, I am uncertain of Mr Rowe’s likely [sic] of committing a further qualifying sexual or violent offence. I note that Mr Rowe tends to minimise his responsibility and shows little evidence of remorse for his actions. He tends to externalise his offending by blaming others. I also note that he has re-offended despite participating in a sexual offender’s treatment programme. He has a history of recurrent offending of a similar nature and this will automatically place him at a high risk of re-offending compared to the general population. He does, however, express a willingness to accept treatment in the future.
It is my opinion that there is little point in the court having a further psychiatric assessment. It would be more beneficial if a psychologist from the Department of Corrections, Psychological Service, provide a report to assist the court. …
I, therefore, respectfully, recommend that the court ask for a psychological report through the Department of Corrections for the purpose of the second report as required by the legislation.
[14] In her report, Ms Norrie, discussed at considerable length the appellant’s prior offending and his history of interactions with the criminal justice system. Ms Norrie addressed the appellant’s participation in a sexual offender treatment programme and indications that he had not committed fully to this programme. She reached the view that he was not currently motivated to attend therapy to help avoid further sexual offending. She also referred to a number of actuarial assessments of the appellant’s likelihood of re-offending. In her conclusions, she observed:
The four risk measures, including both static and dynamic factors used in this assessment have a high level of convergence in indicating that Mr Rowe has a high risk of sexual re-offending with his risk being higher than the base rate of sexual recidivism for similar offenders.
In summary, Mr Rowe has a lengthy history of sexual offending which began in his adolescence and, which occurred on an annual basis except for the times he was in prison. He offended again after attending the Sex Offender Treatment Programme at Te Piriti hence he has placed himself in the small group (12% of completers) of offenders who have not benefited from this normally very successful programme. The higher than average likelihood of his committing a serious sexual or violent offence within seven years of his release, his relatively young age as a sexual offender with adult victims and his denial of the offence all indicate that there is a high risk of harm to the community when Mr Rowe is released from prison. Mr Rowe’s history of offending indicated that the main risk reducing intervention has been imprisonment. His denial of the offence renders him unsuitable for programmes designed to address sexual offending. Mr Rowe’s comments have clearly indicated that he is not currently motivated to attend therapy to help him to avoid further sexual offending. However, he is currently facing the prospect of a very long time in prison and there is the possibility that he will alter this attitude at some stage during his prison sentence.
The approach of Harrison J
[15] Harrison J referred to the sentencing remarks of Heron J in 1998 but noted that he was required to exercise his own discretion independently and in accordance with the Act.
[16] The Judge declined to give the appellant credit for his guilty plea as he had required the complainant to give evidence and thus relive the trauma of the attack.
[17] Harrison J then considered the five criteria under the Act.
[18] He noted that the appellant had 13 prior convictions for sexual offending and that the present offence was committed while he was on parole for previous sexual offences. In his summary of the appellant’s history of offending he mistakenly referred to the appellant’s convictions in 1998 as being “for unlawful sexual connection and rape” whereas the offences for which he was actually sentenced were sexual violation by unlawful sexual connection and indecent assault, as the Judge had earlier correctly recorded. He also misdescribed the 1997 offending as involving indecent assaults.
[19] In his assessment of the seriousness of the harm to the community caused by the offending, Harrison J noted the “grave emotional trauma” of the victim of his most recent sexual offence which was occasioned by the sudden attack in broad daylight in a public park. The Judge noted that the complainant remained in shock and trauma for some time and that she has ongoing difficulties in the company of strangers.
[20] The Judge then considered the likelihood of the appellant committing serious crimes in future. He said that he was addressing this issue in terms of a hypothetical release date of 2006 being when he considered that the appellant would expect to be released if a finite sentence was imposed. On this aspect of the case he placed primary significance on the pre-sentence report and what Ms Norrie had to say.
[21] The Judge considered the efforts made by the appellant to address the causes of the offending. He concluded at [17]:
... I have come to the reluctant conclusion that you fall into that very small category of hard core recidivists for whom there is little hope for change, despite the authorities attempts to assist you through specific and otherwise successful sexual treatment programmes.
[22] The Judge had this to say when considering whether a lengthy determinate sentence might provide for the adequate protection of society at [18]:
… The maximum term for which you are eligible on this charge is one of seven years imprisonment. While I do not agree … that the circumstances of this crime are at the lower end of the continuum, I would be unable to impose a sentence of more than three years. In my judgment, that does not fit within the meaning of a lengthy determinate sentence, and it certainly would not protect society adequately from you.
[23] The Judge then went on:
[19] All of these five factors which I have discussed, taken together, leave me in no doubt whatsoever that you are likely to commit another qualifying sexual offence if released from prison in 2006. Indeed, Mr Rowe, I am satisfied that such an offence is inevitable. In my judgment you pose a very significant ongoing risk to community safety. History has shown that the alternative sentencing approach of finite terms of imprisonment have not worked to deter you from committing serious offending of a violent or sexual kind (R v Burkett, CA416/00, 21 February 2001). Nevertheless, despite this conclusion, I retain a discretion on whether to sentence you to preventive detention.
[20] [Counsel for the appellant’s] principal submission in opposition is that preventive detention would amount to an excessive punishment for this crime given that I must at the very least impose a minimum non parole period of five years (s 89(1)). By contrast, I note, if you are sentenced to a finite term of, say, three years imprisonment, you may well be eligible for parole by now. [Counsel for the appellant] submits that you would be punished disproportionately for this crime. I understand his point. However, as the Court of Appeal has emphasised (R v T, CA125/02, 19 July 2002 at paras 22 & 25), the purpose of preventive detention is not punitive. It is not designed to punish. Rather, its purpose is to protect the community against recidivist sexual violent offenders.
[21] In contrast to other cases considered by the Court of Appeal, I am satisfied that your conduct has resulted in offending of a very serious kind, and that its effect upon your victims is much more than mere damage, fear, disturbance or embarrassment. As I have said, your offending presents, by its very predatory and invasive nature, a direct and ongoing threat to the safety and security of female members of our society. It is in a very different league from T’s and Bailey’s case, where the Court of Appeal interfered to set aside a sentence of preventive detention (R v Bailey, CA102/03, 22 July 2003).
[22] Accordingly, I have no doubt that a term of preventive detention is the only sentencing option available to me. I sentence you to a term of preventive detention on this charge of indecent assault.
[24] The Judge’s conclusion that he was required to impose a sentence of preventive detention meant that he had to fix the minimum non-parole period. He set a minimum term of six years as being what was necessary for society’s protection.
The appeal
[25] Counsel for the appellant contended that a determinate term of imprisonment – he suggested three years – would have been adequate. He relied on the principle that a lengthy determinate sentence is preferable to an indeterminate sentence. He stressed the hiatus (between 1993 and 2003) in the appellant’s violent sexual offending (ie excluding offences involving the performing of indecent acts). He also made reference to the mistakes made by Harrison J in his sentencing remarks in relation to the offending for which the appellant was sentenced in November 1998 and also the 1997 offending. He claimed that the Judge’s mistakes as to the appellant’s offending history associated with the delay which occurred between the commission of the indecent assault and sexual violation offences in 1992 and 1993 and the appellant’s trial (in 1998) resulted in a summary which mistakenly suggested “a regular and unabated spread of offending which does not match the actual offending (as opposed to conviction) history”. The result he said, was a “skewed analysis” of the appellant’s offending record.
[26] He further submitted that Harrison J ought not to have been satisfied that the appellant was likely to commit another qualifying sexual offence if released on the expiry of an appropriate finite term of imprisonment.
Evaluation
[27] There are three worrying aspects to the case. The first is the actual offending for which the appellant received his sentence of preventive detention was of limited gravity when viewed in the context of the sort of offending for which that sentence is usually imposed. The second - and it is a related consideration – is that much of the offending for which the appellant has previously been sentenced involved exhibitionist behaviour. Thirdly, the Judge did make mistakes in his survey of the appellant’s history of offending.
[28] In that context we have given careful consideration to the appropriateness of the sentence.
[29] In this regard we start by identifying the appellant’s prior convictions for what may be fairly regarded as sexual violence: two offences of indecent assault committed in 1987, attempted sexual violation in 1990 (for which he was sentenced in June 1991 to three years imprisonment); sexual violation in 1992 and indecent assault in 1993 for which he was sentenced in 1998 to five years imprisonment and then the current offending which occurred in 2003. The offending in 1992 and 1993 occurred while he was on parole in respect of the sentence imposed in 1991 and the current offending occurred while he was on parole in relation to the sentence imposed in 1998. Treating as perhaps a single incident, the two offences of indecent assault committed in 1987 (both of which would appear to have been committed on the same day), the appellant has been convicted of offences involving sexual violation, attempted sexual violation and indecent assaults in at least five separate incidents.
[30] It is settled law that once the statutory prerequisite for preventive detention has been met, the offender’s whole offending history can and should be taken into account: R v McGhee (1995) 13 CRNZ 108 at 122, line 11. This makes relevant the offences committed by the appellant when he was under 18. Also relevant are the indecent acts for which the appellant has been convicted on so many occasions. There has been an overlay of aggression to much of this behaviour which is closely associated with the appellant’s more serious sexual offending.
[31] Leaving aside the sentences of imprisonment imposed in 1998 for the 1992 offence of sexual violation and the 1993 offence of indecent assault, the appellant received two other sentences of imprisonment between 1993 and 2003. Making allowance for those sentences (as well as for the five years imposed in November 1998), the appellant must have been in prison for around four years (and perhaps more) of the ten year hiatus between 1993 and 2003 relied on by his counsel. In light of the period of time which the appellant spent in prison during the 1993‑2003 period and allowing for the other sexual offences for which he was convicted which were committed in this period (namely offences associated with the performance of indecent acts committed in 1993, 1994, and 1997) we do not see the “hiatus” between 1993 and 2003 as being as important as counsel for the appellant suggested. Nor do we regard the Judge’s mistakes in his survey of the appellant’s offending as detracting from his assessment of the probability of further offending.
[32] We accept that predictions as to future offending are not necessarily particularly reliable. However, there is nothing to suggest that the Judge’s approach was not open to him. There is the pattern of offending to which we have just referred, the actuarial assessments made by Ms Norrie, the history of failure on the part of the appellant to engage with rehabilitative programmes and the underlying sense which we, in company with the Judge, have that unless the appellant is prepared to address in a serious way the causes of his offending, further offending is almost inevitable. Finite sentences of imprisonment have been tried but his offending behaviour and his associated ways of thinking have simply not changed. There is no reason to think that a finite sentence would serve to protect to the public from the probability of further offending.
[33] Against that background, it is perfectly clear that the statutory prerequisites for a sentence of preventive detention were satisfied. In particular, we consider that the probability of the appellant’s offending in a relevant way upon release from a finite sentence was sufficiently probable to be “likely” for the purposes of the statutory test.
[34] As R v Dean CA192/03 17 December 2004 indicates, sexual offending which is not of a particularly grave nature can, nonetheless, warrant a sentence of preventive detention. There, this Court observed at [76]:
Where the facts indicate that preventive detention may be appropriate, the Court’s focus is not on the impact of the present offending but rather is on whether the offending, when seen in context, demands a special reaction for the protection of society or a group within society.
Dean was decided in the context of the old preventive detention regime under which the minimum term of imprisonment required to be served was ten years. Given the serious offences for which the appellant has been convicted in the past, we do not see the limited (at least in this context) gravity of the present offending as inconsistent with the imposition of preventive detention.
[35] Counsel for the appellant did not specifically challenge the fixing of the minimum period of imprisonment at six years. The Judge, in fixing that sentence, was motivated by public safety considerations - considerations which were open to him under s 89. Given that the minimum non-parole period which could be fixed is five years, any interference with the Judge’s assessment in this regard would border on tinkering and in any event we are not satisfied that the Judge was wrong in this aspect of the sentence.
The result
[36] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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