The Queen v Brett David Grinder

[2003] NZCA 203

IN THE COURT OF APPEAL OF NEW ZEALAND

CA78/03

THE QUEEN

v

BRETT DAVID GRINDER

Hearing:18 August 2003

Coram:Gault P
Rodney Hansen J
Salmon J

Appearances:  R A Harrison for the Appellant

H D M Lawry for the Crown

Judgment:26 August 2003      

JUDGMENT OF THE COURT DELIVERED BY RODNEY HANSEN J

Introduction

[1]       The appellant appeals against a sentence of preventive detention imposed by Heath J on twenty-four charges of sexual offending, to which he had pleaded guilty.

Background facts

[2]       The offending began in 1976 when the appellant was fourteen years of age and concluded with his arrest in 2001.  It involved thirteen victims in total.  The offending took place over three distinct periods of time:

·May 1976 – February 1982 when the appellant was fourteen to nineteen years old.  The offences were committed against males aged between eight and sixteen years and a single offence against a four year old female.

·April 1986 – April 1990 when the appellant was twenty-four to twenty-eight years of age.  The offending involved representative charges of indecent assaults on a boy when he was aged between eight and eleven years and indecent assaults on two girls aged seven and eight.

·September 1996 – October 2001 when the appellant was between thirty-four and thirty-nine years of age.  This offending involved four girls aged between five and twelve.

One of the charges during the last period is a representative charge of sexual violation by unlawful sexual connection.  All of the other charges are of indecent assaults.  Most are representative.  The assaults on the male victims largely comprised masturbating them, some oral contact and self-masturbation in the presence of the complaintants.  The assaults on the female complainants included touching their genitalia, their breasts and their buttocks.  The representative sexual violation charge involved the appellant rubbing his finger between the complainant’s labia on several occasions.

Sentencing

[3]       The Judge was provided with psychiatric and psychological reports by:

·Dr Renate Bellvé-Wack, senior psychologist at Regional Forensic Psychiatry Services.

·Dr Pramila Fernandez, psychiatrist of the Regional Forensic Psychiatry Services.

·Report by Mr Greg Woodcock, registered psychologist.

He also had before him a report from Dale Mikhaels, psychotherapist with SAFE Network Inc, which conducts community therapy programmes.  The appellant had participated in a programme since November 2001 when he was first charged.

[4]       The Judge concluded from the reports that the appellant had been diagnosed as a paedophiliac who had a medium to high risk of reoffending.  They contained acknowledgements that the charges to which the appellant had pleaded guilty represented a mere fraction of his offending over the period in question.  The reports showed him to have been opportunistic and manipulative in the way he located his victims.

[5]       The Judge identified as aggravating factors:

·The harm caused to the victims and to the community.  He referred to the emotional scars borne by the victims, some of whom were family members or friends of relatives.

·The abuse of trust involved in much of the offending.

·The fact that the victims were particularly vulnerable.

·The number of offences and the length of time over which the offending had taken place.  He noted also the escalation from offences of indecency to the sexual violation of a girl of five or six years of age which occurred in 2000 and 2001.

·The manipulative tactics employed by the appellant to put him in a position to exploit his victims.  He noted the observations in Dr Bellvé-Wack’s report that the appellant actively created situations which would provide him with access to children and opportunities to molest them.

[6]       The Judge acknowledged as mitigating factors the early pleas of guilty and, in relation to the first group of offending, the age of the appellant at the time.  He rejected a plea that he take into account the appellant’s expressions of remorse as a mitigating factor, concluding that, on the material available to him, they stemmed more from the consequences being faced by the appellant than any feelings of empathy for his victims.

[7]       The Judge considered submissions on behalf of the appellant that a lengthy finite term of imprisonment would be sufficient to meet society’s needs and to protect vulnerable members of the community.  The submissions had emphasised the appellant’s positive response to more than a year of counselling as part of the SAFE programme.  The Judge was urged to accept that the appellant had faced up to his offending, had genuine insight into the harm done to his victims and had a positive attitude to further treatment for his paedophilia.  He concluded, however, that a finite sentence (which he determined would be eight years) would be inadequate and that a sentence of preventive detention was called for.

[8]       As all of the offending had taken place before the Sentencing Act 2002 (“the Act”) had come into force, the Judge was required to be satisfied that the appellant would have been sentenced to preventive detention under the Criminal Justice Act 1985.  He found that criterion satisfied and that, in terms of s 87(2)(c) of the Act, there was a real and substantial risk that the appellant would commit a specified offence on release.  He referred to the assessment of the health professionals whose reports he had considered, the gravity and continuity of the offending and the following particular factors:

a)The multiple nature of the sexual offending involving indecencies against both young males and young females.

b)The period of time over which the offending occurred.

c)The appellant’s inclination to blame victims or to excuse his own responsibility for his conduct.

d)The absence of empathy for the appellant’s victims.

e)The appellant’s remorse was centred on the consequences to him rather than the consequences to the victims.

f)The inadequate insight shown by the appellant into the changes needed to prevent his behaviour continuing, despite his attendance at the SAFE programme.

[9]       The Judge went on to decide that, having regard to the appellant’s guilty plea and to the fact that he would undergo appropriate treatment programmes in prison, there was no need for him to consider extending the minimum non-parole period from the five-year period specified in s 89 of the Act.

Grounds of appeal

[10]     Mr Harrison argued that the Judge erred in relying heavily (as he put it) on the report of Dr Bellvé-Wack He criticised it as lacking in objectivity because she had interviewed one victim by telephone.  He submitted that the report was at odds with the report of Mr Woodcock, the psychologist, information before the Court in relation to the appellant’s participation in the SAFE programme, and with a report from another psychiatrist, Dr Ian Goodwin, obtained and tendered on behalf of the appellant for the purpose of the appeal.

[11]     Mr Harrison said that of the six factors which weighed most heavily with the Judge  as pointing to a substantial risk of reoffending (set out in para 8 above), only the first two could be relied on.  He argued that the remaining four were contradicted by the report of Dr Goodwin, Mr Woodcock and the SAFE counsellor.  Mr Harrison said if they are disregarded the conclusion reached by the Judge could not be supported.  The risk posed by the appellant could be met by a finite term of imprisonment.

Decision

[12]     There is no substance in the criticism of Dr Bellvé-Wack’s objectivity.  There was nothing improper in the way she went about gathering information for the purpose of the report.  She spoke by telephone to a victim at the request of the appellant’s wife.  He was fortuitously present when Dr Bellvé-Wack phoned her to verify some matters raised in the course of an earlier interview.  There is nothing objectionable in this.  There is no reason to doubt Dr Bellvé-Wack’s professional detachment. 

[13]     All the experts assess the appellant as in the medium to high risk category of paedophilic reoffending.  Their assessments are largely based on the six factors identified by the Judge.  These are categorised as either static or dynamic risk factors.  Static factors are historical factors such as previous offending, gender and age.  Dynamic risk factors refer to an individual’s capacity to change offending behaviour.  They include such factors as the ability to recognise the antecedents of and the harm caused by the offending.

[14]     There was no disagreement that the static factors pointed to a medium to high risk of reoffending.  Any differences between the experts concerned the dynamic factors.  Dr Goodwin’s impression of the appellant differed from that of Dr Bellvé-Wack.  Whereas she had found the appellant to lack insight and to exhibit “a striking passivity” in relation to the SAFE programme, Dr Goodwin felt the programme had given him some understanding of his offending.  He concluded that the appellant had a significant number of positive dynamic factors which should be exploited in order to make further gains in the treatment of his paedophilia.  

[15]     It is apparent from his conclusion that Dr Goodwin’s more sympathetic assessment of the appellant’s response to treatment does not lead to a different assessment of the risk of recidivism.  His view of the dynamic factors merely suggests a greater likelihood that the appellant may (not will) respond favourably to treatment.  But even if Dr Goodwin’s opinion had resulted in a marked difference of opinion on the risk of reoffending, we would see no reason to prefer his view to those of the experts relied on by the sentencing Judge.  There was a strong identity of views among the three principal experts relied on.  Dr Fernandez’s assessment of the dynamic factors concurred with that of Dr Bellvé-Wack.  She described the appellant’s insight as “minimal” and his having “no awareness” of triggers contributing towards his sexual offending.  Mr Woodcock saw positive indications for future treatment but judged the appellant as posing, nevertheless, a moderate to high risk of paedophilic reoffending.  The observations of the SAFE counsellor were part of the material that the psychiatrist and psychologists had regard to but could not be preferred to the conclusions of those experts on the critical issues.

[16]     The somewhat more favourable impression formed by Dr Goodwin may be attributable to the further treatment received by the appellant since sentence.  The appellant’s knowledge of the factors which influenced the sentencing Judge may also have been a factor.  However, putting these matters to one side altogether, there is nothing in Dr Goodwin’s report which establishes error on the part of the experts on whom the Judge relied or in the conclusions he reached on the basis of their reports.

[17]     In the result, we are satisfied that the sentence of preventive detention was fully justified.  The appeal is dismissed.

Solicitors:           
Crown Solicitor, Auckland