THE QUEEN v LUKE JOHN KITCHING [1999] NZCA 218 (7 October 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 240/99

THE QUEEN

V

LUKE JOHN KITCHING

Coram:	Thomas J Keith J Tipping J
Decision: (ex parte)	7 October 1999

judgment of the court DELIVERED BY TIPPiNG j

[1] The appellant pleaded guilty to four counts of sexual violation, two counts of indecent acts, two counts of permitting indecent acts, and one count of indecent assault on a boy.He was sentenced in the High Court at Auckland to a term of preventive detention under s75 of the Criminal Justice Act.He now appeals against that sentence.

[2] The appellant applied for legal aid in respect of this appeal.The Registrar declined the application after the necessary consultation pursuant to s15 Legal Services Act 1991.The appeal is, therefore, to be determined on the basis of written submissions.

[3] While boarding at a house in South Auckland the appellant gained the trust of his landlord and the girlfriend of the landlord.The convictions relate to three different victims, all young boys.The first was the 12 year old son of his landlord's girlfriend.On those nights when the boy's mother would stay at the landlord's house, he would sleep on the couch.On these nights, the appellant would engage in indecent acts on him.The second victim was the landlord's own 4 year old son.The appellant abused him on approximately five or six occasions.The third victim was a 7 year old boy whom the appellant would babysit.The appellant met the victim's mother through his work and again gained her trust so that he could have uninterrupted access to her son. In terms of the nature of the abuse, the sentencing Judge remarked that the appellant "persistently, remorselessly and cruelly abused [the victims] over an extended period in every way that one can conceive of abuse."

[4] This case is a continuation of a pattern of offending by the appellant. This pattern began when the appellant was 16 and has continued up to the present time.He is now 33.The previous offending appears to have begun with the appellant taking advantage of opportunities for abuse which were presented to him and developed to the pattern which is now apparent where the appellant gains the trust and friendship of young boys in order to prey on them sexually. It is this pattern that establishes the clear and apparent danger that the appellant poses to the public and the need for lifelong supervision of him. The sentencing Judge was right to give priority to the risk the appellant poses to society and to opt for a term of preventive detention rather than a lengthy finite term of imprisonment.The decisions of this Court in R v Leitch [1998] 1 NZLR 420 and R v S, CA 15/98, 6 May 1998, were properly relied upon by the sentencing Judge in making this decision.In the circumstances, the sentence was not only appropriate but was almost inevitable, given the history of offending and the negative prognostic features indicated in the psychiatric report.

[5] The appellant, submits for his part, feelings of remorse and a desire to undergo treatment to help prevent further offending.While these feelings appear genuine, and the acceptance by the appellant of his problem is a positive step, the submissions only emphasise the likelihood of re-offending and the consequent need for constant supervision.The administration of the sentence and the programming of treatment and counselling are for the prison authorities and not for this Court.

[6] The appeal is dismissed and the sentence of preventive detention upheld.