R v S CA31/96 [1996] NZCA 276 (7 August 1996)

Last Updated: 13 February 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 31/96

_{THE QUEEN}

V

_S

Coram: Richardson P Henry J Thomas J

Hearing: 9 July 1996

Counsel: C P Brosnahan and M J Bullock for Appellant

S P France for Crown

_{Judgment: 7 August 1996}

_{JUDGMENT OF THE COURT DELIVERED BY HENRY J}

The appellant was indicted on three counts, all relating to one incident. He pleaded guilty on arraignment to charges of kidnapping and of assault with a weapon. He was found guilty at trial on a charge of assault with intent to commit sexual violation. He was sentenced to a term of 9 years imprisonment on the kidnapping charge, and concurrent terms of 8 years and 2 years respectively for attempted sexual violation and assault with a weapon.

The relevant facts in brief are that on the morning of Saturday 17 September

1994 the victim, an 11 year old boy, had been fishing from a barge on the Wanganui River. He started to walk home, met and was talking to one of his friends when they were approached by the appellant. On the pretext that the boys had been responsible for upsetting behaviour towards some girls he demanded that they accompany him to apologise. The friend fled the scene on his bicycle, but the victim was made to go to a scrap metal yard and there forcibly pushed into an old freezer which appears to have been used as a sort of doss-house. It contained an old carseat, some blankets and a duvet cover which operated as a curtain over the entry. The appellant also entered, and proceeded to remove from his pockets a set of handcuffs and a pocket knife. The victim grabbed the knife and hid it in one of the blankets. The appellant then obtained a fishing knife from the victim’s bag and threatened him with it, holding the knife against the boy’s chest or throat. Shortly afterwards the appellant said the boy could go, leaving the area first himself. There was no other physical violence and no overt attempt at sexual contact. When interviewed the appellant said that his purpose was to have sex with the boy. He also said that he was considering using the knife to slit the boy’s throat if he struggled. He said that what stopped him from doing anything further was the thought of losing his accommodation and his cat, and the thought of going back to Kaitoke prison. He admitted he had “got very close” to violating the boy.

The appellant is now 27 years of age and has a disturbing history, coming under Social Welfare and police notice from the early age of 5 years. From then on he has exhibited serious anti-social traits. At the age of 9 years 9 months he was described by a psychiatrist as “one of the most disturbed, impoverished and emotionally deprived children” he had ever seen. There were incidents of forced sexual activity with younger males when he was only 14 and 15 years of age. In June 1985 he was committed to a mental institution as a special patient having admitted charges of threatening to kill, assault and rendering a person unconscious in

circumstances broadly similar to the present offending. At that time he was on leave from Cherry Farm Hospital having been earlier committed under s.21 of the Mental Health Act 1969. He was transferred to Lake Alice Hospital where he remained for nearly 8 years until discharged in April 1993 as a consequence of the 1992 legislation. His release was the subject of considerable media attention. In May 1994 he was convicted of burglary for which he received a suspended term of imprisonment and a community programme sentence, the latter being current when the present offending occurred.

The Court has been provided with a comprehensive record of the appellant’s history, including a number of psychiatric and psychologist reports. In his early years he was placed in an estimated 56 foster homes, and has been in institutions of one sort or another for much of his life since the age of 6 years. In a 1994 report he is described as having identified problems of borderline intellectual retardation and paedophilia. He does not suffer from any major depressive disorder. It appears that he was ill-equipped to re-enter the community in 1993, one particular problem arising from his refusal to continue with medication once he became a voluntary patient.

A substantial term of imprisonment was in the circumstances inevitable. The problem which is presented is one of assessing the appropriate term, having regard to the fact that there is no course open to the Court which will ensure adequate confinement and supervision outside the prison system. There can be no doubt the Judge was right in treating the appellant as constituting a risk to the community, and to have the public interest and safety at the forefront of his assessment. The offending itself, viewed in isolation from that factor, would not warrant a term of 9 years imprisonment. However the preventive aspect of sentencing is well established. The need to protect the public from persistent depredations will allow, and in some cases will require the giving of a significant weighting to that factor.

The principle was recognised in R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 when considering the relevance of previous convictions. Sir Michael Myers CJ said at p.597:

“It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner’s previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.”

R v Ward [1976] 1 NZLR 588 endorsed this approach, and at p.591

McCarthy P referred to the relationships between the gravity of the offending and the predilection to re-offend in these terms:

“We recognise that this balancing is not easy. No rigid lines are really possible. Moreover, the protection of the public against those likely to offend repeatedly can all too easily be seen as an additional punishment for past offences. For these reasons the law has sought to preserve the preventive aspect being given too such importance. The controlling principle which it has developed to prevent it taking charge in a dominant way is that a reasonable relationship to the penalty justified by the gravity of the offence must be maintained. The desirability of prevention must be balanced against that gravity.”

In R v Andrian (1996) 13 CRNZ 449 this Court applied those principles in upholding a sentence of 9 years imprisonment for repetitive burglaries. The importance of the preventive element has statutory recognition in s.75 of the Criminal Justice Act 1985 which empowers the Court to impose for certain defined offending the indefinite sentence of preventive detention which has a minimum non-parole period of 10 years. That is available and from time to time is used for offending which would not of itself warrant imprisonment for such a length of time. There are other instances when this Court has upheld sentences substantially in excess of that

appropriate to the offending if taken in isolation by placing weight on the preventive element.

Ordinarily a sentencing Court should ignore the prospect of remission or parole in determining the appropriate sentence, those being matters of administration (R v Roera [1990] NZCA 312; [1991] 2 NZLR 44,46). It is however legitimate in an exceptional case to have some regard to those matters, as was recognised in Roera. More recently in R v Mwai [1995] 3 NZLR 149, this Court said (at p.157) that there is no inflexible rule and that it is permissible in an appropriate case to have regard in this area to the realities of the case. The earlier strictures of the general principle have also been lessened by the power of the Court under s.80 of the Criminal Justice Act 1985 to order that a minimum period of imprisonment be served. Section 80 does not apply to the appellant, who will be eligible for parole consideration after serving one-third of his sentence, with a final release date when two-thirds of the sentence has been served. In the unusual circumstances of this case, we think it appropriate to bear that in mind when considering the overall appropriateness of his sentence.

This offending was serious. It is fortunate, probably fortuitous, that more serious consequences did not result. The danger which the appellant represents to society is undoubted, and the sentencing Judge’s emphasis on this factor was justified. The effective sentence of 9 years was severe, even allowing for all relevant matters. It was probably at the maximum available to the Judge, but in the end we are not persuaded that it was excessive. We express the hope that programmes can be set in place for treatment and rehabilitation purposes.

The appeal must be dismissed.

Solicitors

Crown Law Office, Wellington, for Crown