The Queen v Stephen Eldon Burkett

IN THE COURT OF APPEAL OF NEW ZEALAND

CA416/00

THE QUEEN

STEPHEN ELDON BURKETT

Hearing:	21 February 2001
Coram:	Gault J Robertson J Potter J
Appearances:	H Leabourn for Appellant P K Hamlin for Crown
Judgment:	21 February 2001

JUDGMENT OF THE COURT DELIVERED BY GAULT J

The appellant pleaded guilty to two charges of doing an indecent act in a public place and one charge of doing an indecent act on a boy less than 12 years old. He pleaded guilty at the earliest opportunity in the summary jurisdiction and was, therefore, subject to a maximum penalty of imprisonment for five years.
The District Court Judge declined jurisdiction to sentence the appellant and the matter was remitted to the High Court for sentence. On 27 October 2000 the appellant was sentenced to preventive detention. The appeal is against that sentence.
The convictions arose from three incidents on the same day, 12 July 2000. The first involved a journey on a bus in which a 15 year old complainant was a passenger. The appellant produced and showed the complainant a pornographic magazine and then exposed himself whilst masturbating. The second charge was that the appellant on the same day approached the second complainant in a bus shelter and put his hand on his thigh. He then boarded a bus and sat next to the complainant, put his hand on his leg, pulled up his shorts and began rubbing his leg. The third incident arose in the course of another bus journey when a 15 year old complainant was approached by the appellant who began rubbing his hand along the seat of the bus in an offensive manner after having placed his hand on his genitals and rubbed them to simulate masturbation.
This offending is accepted by the Crown as at the lower end of the scale of qualifying offences for preventive detention. However, there is no dispute that the appellant is vulnerable to that sentence under s75(1)(b) of the Criminal Justice Act 1985 because of his previous offending. He has a long record of convictions for what has been described as exhibitionist sexual behaviour going back to 1978. Mr Leabourn helpfully listed the convictions for offences of a sexual nature as follows:

2000Indecent Act – 3 months
1999Indecent Act (x2) – 8 months imprisonment
1997Indecent Act (x6) – 18 months imprisonment
1995Indecent Act (x2) and Indecent Assault – 2 years 9 months
imprisonment
Indecent Exposure and Indecent Act – 5 months
imprisonment, suspended 8 months
1992Indecent Assault and Indecent Act – 18 months imprisonment
19931991 Indecent Act – 15 months imprisonment
(Kia Marama Programme)
1990Indecent Act (x3) – 9 months imprisonment
1989Indecent Act (x10) –9 months imprisonment
1984Indecent Behaviour – 14 days imprisonment (suspended)
Australia
1979Indecent Assault – fine $200
1978Indecent Act (x2) – fines and 6 months periodic detention

At the time of the offending to which the present appeal relates the appellant had been in the community only a matter of weeks after having served a sentence of three months imprisonment for doing an indecent act with a male. Before that, in December 1995, he had been sentenced to imprisonment for two years nine months for offences of indecent assault.
The appellant is 46 years old and lives an itinerant lifestyle without any settled relationship, employment or network of support.
Although he was not required to do so, the sentencing Judge ordered a psychiatric report which he had available at the time of sentencing together with an earlier similar report and a full pre-sentence report.
The Judge began his sentencing remarks by saying:
…the critical question for my decision this morning is whether I sentence you to a finite term of imprisonment for those offences or whether I sentence you to Preventive Detention. Because the charges were laid summarily and not, as we call it, indictably it is agreed by counsel, and I accept, that the maximum term of imprisonment to which I could sentence you if I adopt the former course is 5 years imprisonment rather than the 7-10 years to which you would otherwise be liable.
He described the offending and referred to the requirements in s75. He then reviewed the recent decisions of this Court including R v Leitch (1997) 15 CRNZ 321 and in particular the factors identified at p328 of that decision as among those relevant to the question of whether preventive detention should be imposed.
The Judge reviewed the appellant’s background of offending and mentioned that he had entered, but not completed, the Kia Marama programme prior to his offending in 1992. The Judge summarised the information available from the reports as follows:
The Probation Officer comments that your response to community-based sanctions on previous convictions has been poor. It seems, certainly from both the psychiatric and the probation reports that you have had a most unfortunate background and that the offending that you committed over many years may well stem from that, but that you have really failed to do anything effective about the effects of your background over the years since. The Probation Officer says that you made it clear that your “sexual preference is adolescent boys” and that you have “never aspired to developing a monogamous or stable adult homosexual relationship” and you “acknowledge what you have done was wrong in a legal sense”. You told the Probation Officer then that you were not interested in attending the Kia Marama programme. It seems that you did commence that programme when you were in prison on an earlier occasion but failed to complete it. Mr Spring’s instructions gained from you during the course of the sentencing this morning were that you had some difficulty with the psychologist involved. That may or may not be the case but nonetheless the Kia Marama programme and the Te Piriti programme are the best that the Corrections system in this country can offer and I regard it as significant that you failed to complete the Kia Marama programme when it was offered to you on that earlier occasion.
The Probation Officer concludes that you are very likely to re-offend because, as he said, you do not wish to change your sexual deviance as, to you, this is a “form of behaviour which provides you with a degree of comfort and feeling of well-being”.
The psychiatric reports are to much the same effect. They speak of your psychiatric history during your earlier admissions to mental hospitals and they speak also of your background. The psychiatrist takes the view that, under the heading of “Mental Illness”, that you exhibit “the criteria for diagnoses of the sexual paraphilias, exhibitionism and paedophilia in that he has attractions to young boys although these are usually but not always in the age range thirteen to twenty”.
In an assessment done specifically for s75 purposes and balancing the behaviour and risk issues, Dr Wyness says that mitigating factors are that your previous charges have never included violent offences and none of your sexual behaviours have included coercion or violence, you are intelligent, and you expressed a willingness to engage in psychological therapy.
The Judge then considered the offender against the relevant points identified in Leitch as follows:
Applying the factors from Leitch, although I acknowledge that the nature of the offending and its gravity on this occasion were not as serious as many other sexual offences that come before the Court, they were certainly serious as far as the victims perceived them to be and as far as your former victims have perceived them to be. There may not have been a great deal of violence involved but there is a violence in coercion and a violence in your visiting your behaviour on young men, which is all too apparent from reading the material that is before me.
As to the category of victims and the impact, I have already referred to the impact on those victims and it seems that you are a predator on young men, usually of the ages of 10-14 or thereabouts but on one occasion in this instance a 10-year old boy.
Concerning your response to previous rehabilitation efforts – well it is clear that you have not responded to previous terms of imprisonment and in particular, as I have mentioned, you failed to respond to the Kia Marama programme when it was offered to you.
As to the time elapsed since any relevant previous offending – I have already mentioned it can only be a matter of weeks after your release from prison that you offended as you did on this occasion.
Then, as to steps taken to avoid reoffending – you have really taken none. You may, because of your background, [have] been limited in your ability to undertake steps to prevent reoffending but you have really undertaken no such step.
On acceptance of responsibility and remorse for the victims – the material that is before me, Mr Burkett, is that there has been very little of that on your part. I can see from your actions in the dock that you dispute that but nonetheless that is the impression I get from the material before me.
Firstly, predilection or proclivity for offending taking account of professional risk assessments – well, I have to take serious account of what the psychiatrists tell me about the likelihood [of] your reoffending and there really is little conclusion available to me other than that at some stage when you are in the community you will almost certainly reoffend.
The Judge concluded that it is expedient for the protection of the public that the appellant be detained in preventive detention.
In support of the appeal, Mr Leabourn argued that the sentence is manifestly excessive given the nature of the offending at the lower end of the scale of seriousness. He argued further that the sentence is unfair because at no time has the appellant been given a clear and documented warning that the sentence would be imposed if he continued to offend in the way he has.
Counsel accepted that there is no requirement that the qualifying “specified offences” involve violence or particular seriousness. Indeed the statutory prescription of specified offences is inconsistent with that. Mr Leabourn also accepted that to require a prior warning would be to impose a limitation that is not in the statute: R v Freeman [1955] NZLR 718,730.
Both counsel addressed us on the factors identified as relevant in Leitch. They provide a helpful framework, but it is important to avoid using them as a substitute for the statutory criteria. They must not constrain the broad assessment to be made. The list is not intended to be exhaustive, nor are the various factors to be accorded the same weight in all circumstances.
In the present case the Judge was presented with a habitual offender with a high likelihood of re-offending upon release from any finite sentence that might be imposed. The indications at the time of sentencing were that he was not motivated to stop his behaviour as he lacked insight into its seriousness and its impact on his victims.
In an attempt to address this last point we were invited to read an affidavit sworn by the appellant just two days before the hearing of the appeal. In that he said:
I wish to take this opportunity to state that I am deeply remorseful that this offending has occurred and the impact it has had on the Complainants. Further, I accept full responsibility for the incidents having occurred and my pleas of guilty were part of that expression of remorse.
I also state that should I be given the opportunity to undertake an offender’s treatment programme that I am prepared and willing to undertake any programme that is made available to me whilst in custody. I have indicated a certain reservation in relation to a previous programme that I have commenced, namely the Kia Marama Programme, however those reservations occurred as a result of a personality clash between one of the supervisors of the programme and myself.
I indicate that this reservation does not apply to any other programme that may be offered and in particular the Te Piriti Programme which is operated from Auckland Prison.
I also confirm that I am prepared to undertake psychological counselling in relation to my own personal difficulties and believe that once I have completed such counselling it may be a simpler and more logical step to then complete a sex offender’s treatment programme prior to my being released into the community.
These undertakings deserve consideration, although they are open to criticism as stimulated by the appellant’s present predicament, particularly insofar as they are inconsistent with the pre-sentence assessments. To that extent, however, we have the benefit of material that was not before the sentencing Judge.
The psychiatric reports give these assessments:
I believe that Mr Burkett exhibits the criteria for diagnoses of the sexual paraphilias, exhibitionism and paedophilia in that he has attractions to young boys although these are usually but not always in the age range thirteen to twenty. I do not believe that Mr Burkett currently exhibits any symptoms or signs of a functional psychiatric disorder.
…
I believe that Mr Burkett does not pose a risk to himself. Given his record of offending and his attitudes towards this I believe that he is at a high risk of re-offending in that he is likely to commit further exhibitionistic acts or make approaches of a sexual nature to adolescent boys. I believe that the risk of his being violent toward other people is low.
…
His insight into his sexual behaviour was limited into the potential impact of this upon his victims but he was able to acknowledge that his behaviour itself was at least technically against the law. He continued to note that his own needs required him to seek the sexual gratification which his upbringing and life experience had led him to desire and his way of doing this was to engage in exhibitionistic practices and seeking out young men.
…
He does not appear dependent on any particular substance of abuse. However, his substance abuse may contribute to his offending behaviour.
Mr Burkett has a homosexual orientation with a preference for boys and young men aged approximately thirteen to twenty-five years. Clearly these limits do not apply at all times as the current charges involve a ten-year old boy. He uses exhibitionistic behaviour for sexual gratification in itself as well as to attract potential sexual partners. He believes these behaviours become more intense when he is being hounded by society and the police, his homelessness, drifting and abuse of substances. He does not believe he is able to alter his sexual preferences. He does express the need for him to restrict his behaviour to make it more socially acceptable.
What to the appellant and others not immediately involved might be characterised as nuisance offending can be frightening and disturbing to young adolescent victims. The assertion to the probation officer that “a percentage of the boys are appreciative of his contact with them” demonstrates both the extent of the lack of insight and that the conduct has been more frequent than that which has led to convictions. Although this is not as serious as some sexual offending, the stage must come when steps are to be taken to protect the vulnerable target section of the public from its repetition. But on all the information now before us we consider that that course at the present time is too punitive.
There is incongruity in the situation in which, because of the type of charges laid and the manner in which they were dealt with, the appellant faced a finite sentence of five years maximum (subject to any allowance for his early guilty plea), yet also was exposed to the indeterminate sentence of preventive detention with the consequent minimum term of 10 years imprisonment. The very disproportionality invites careful consideration of the need for the blunt instrument response of preventive detention.
We hasten to add that should we be of the view on assessment of the overall picture that protection of the public demanded such a response we would not be deterred solely by the relative lack of seriousness of the most recent offending. However, when addressing the protection of the public it is appropriate to bear in mind what it is that there is concern to protect from. Where it is from potential serious offending of a violent or invasive kind, there must be greater reluctance to risk alternative sentencing approaches. In the present case the type of offending of which there is real risk of recidivism is not in that category. It is to be noted that in the 22 years since the offending began it has not progressed to more serious conduct, nor is there indication of any tendency towards violence. The psychiatric opinion is that the risk of violence is low.
Accordingly, without minimising the distasteful and offensive nature of the persistent offending, we accept that the risks of allowing the appellant the opportunities he seeks to receive a clear warning of the consequences of re-offending and to obtain psychological counselling and sex offender treatment while undergoing a finite sentence are not such as to make the consequences of that proving unsuccessful unacceptably serious.
Weighing all the factors, we are satisfied that the heavy hand of preventive detention should be held for a last time. We are prepared to quash the sentence imposed in preference for a finite sentence within the jurisdictional limits applicable. In that respect, we impose the maximum of five years imprisonment. Should it seem that in doing that we have made no allowance for the guilty plea, we simply note that the appellant has benefited from that because of the resulting limit in the maximum sentence available.
For the avoidance of all doubt, we require counsel to advise the appellant that any sexual offending, however minor in the future almost certainly will attract a sentence of preventive detention. His record will be noted accordingly. Further, we expect the appellant to honour the assurances given to the Court in his affidavit that he will seek counselling and undertake such programmes as are available to him while he is serving his sentence.
The appeal is allowed. The sentence of preventive detention is quashed and there will be substituted a sentence of imprisonment for five years. That is to be imposed, in respect of the offence of indecency with a boy under 12, by a sentence of five years and, in respect of the other two indecent act offences, each by a sentence of imprisonment for two years. Those sentences are to be served concurrently.

Solicitors
Crown Solicitor, Auckland

[2001] NZCA 42

21 February 2001