THE QUEEN v ANTHONY JAMES HARRIS [2000] NZCA 100 (27 June 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 167/00

THE QUEEN

V

ANTHONY JAMES HARRIS

Hearing:	27 June 2000 (at Auckland)
Coram:	Blanchard J Ellis J Anderson J
Appearances:	K Raftery for Crown J L Cagney for Respondent
Judgment:	27 June 2000

judgment of the court DELIVERED BY ANDERSON J

[1] The Solicitor-General seeks leave to appeal against a sentence of six years imprisonment imposed on the respondent following his pleas of guilty to 11 counts of sexual offending against a young boy.The grounds upon which leave is sought are that the sentence was manifestly inadequate and that either a sentence of Preventive Detention, for which the respondent is liable, or a finite sentence longer than six years should have been imposed.

[2] The present offending took place over a period of almost three months shortly before and shortly after the victim's 12^th birthday.It included two charges of sexual violation, involving oral genital contact, contrary to ss 128 and 128B of the Crimes Act 1961, and nine charges of indecent assault or inducing indecent acts in respect of a boy under 12, contrary to the provisions of s 140(1)(a), (b) and (c) of the Crimes Act 1961.The respondent, who is now aged 35, had been convicted in the High Court and sentenced to three years imprisonment in December 1993 on two counts of sexual violation and one count of indecent assault, also in respect of an 11 year old boy.He is accordingly liable to Preventive Detention pursuant to s 75(1)(b) of the Criminal Justice Act 1985.

[3] When imposing sentence in the 1993 case Tompkins J referred to the respondent's history which included a propensity to be attracted to young boys. The probation report at that time concluded that the respondent had to address very serious issues in connection with that propensity and that unless he did so the respondent would continue to be a threat to children.That Judge went on to say:-

You have told the Probation Officer of your willingness to accept psychological help.I can only urge you to do so as a means of overcoming the serious problems you have, not only in your own interests but also because of the devastating effect this would have on children if it were to recur.I need hardly emphasise that if it were to, then the Court would take a very, very serious view of that offending if you came up for sentence again.

[4] That Judge's reference to "devastating effect" was to prove sadly prophetic.In the present case the damage to the victim is very grave.This lad still suffers from a serious head injury caused when he was an infant.He attends a special needs class and his development is significantly below his chronological age.His hearing is impaired.The abuse inflicted by the respondent has burdened with anguish the boy's feelings of loneliness and inadequacy.

[5] The respondent ingratiated himself with the present victim by helping him with a paper round and then began to physically interfere with him.This involved genital contact, orally and manually, indecent fondling and kissing. The victim's mother, suspecting what the respondent was up to, complained to the police who warned off the respondent pending their investigation.Despite this warning he could not help himself from meeting the lad, for what counsel referred to as a farewell meeting, and committing further indecencies.

[6] On the earlier occasion when he had been sentenced to three years imprisonment the respondent had undertaken the Te Piriti course for sexual offenders in custody.Plainly the skills learnt on that course were insufficient to deter him from the present offending.Nor was the warning from the police sufficient to deter him from illicit contact with the boy.

[7] A comprehensive psychiatric report was prepared for the purpose of sentencing in the High Court.This defined him as a homosexual paedophile attracted to pre pubescent boys under the age of 12.Indications of a greater risk of re-offending included his being a rather isolated and lonely man with low self confidence and tending to be under assertive.The psychiatrist noted a difficulty in dealing with negative emotion and the fact of previous sexual charges which had led to imprisonment.The previous failure at rehabilitation; the continuing single status consistent with an inability to enter into an appropriate adult relationship; the extrafamilial nature of his victims; are factors which put him at a higher risk of re-offending. Indications of a lower risk of re-offending included the fact of only one previous Court appearance for sexual offending, and the absence of mental illness or substance abuse.The report also referred to the absence of violence in his offending, although we would remark that in this Court's experience overt violence is not a usual feature of this type of offending. The psychiatrist considered that the offending had not been diverse in nature and that also indicated a better prognosis.The psychiatrist recommended a further sex offender programme in order to reduce risk.

[8] The pre sentence report considered that the respondent's motivation to address the factors contributing to his offending was high because he has insight into his offending, knows it is wrong and wants to stop.However the willingness to blame his young victims, indicated by an attitude that they had importuned him, is a matter for concern.

[9] The sentencing Judge considered the case difficult because it was borderline in respect of Preventive Detention.Ultimately the Judge was not satisfied, despite some factors indicating to the contrary, that it was expedient for the protection of the public to impose Preventive Detention at that stage.He considered that there should be "a finite sentence of some magnitude to reflect not only the seriousness of your re-offending and also to have a certain preventive factor involved but that you be given a chance."

[10] Counsel for the Crown on this appeal commenced his submissions by pointing out that two of the charges carry a maximum penalty of 20 years imprisonment and the other nine are subject to a maximum penalty of 10 years imprisonment. He submitted that the appropriate sentence was one of Preventive Detention.

[11] Counsel for the Crown referred to the period of offending which encompassed two to three months, its repetition, the breach of trust involved in the victim's reliance on the friendship of the older respondent, the age and actual immaturity of the victim, and the continued contact even after police intervention.Referring this Court to the principles elucidated in R v Leitch [1998] 1 NZLR 420, he submitted that it was clearly expedient for the protection of the public in this case that the indefinite sentence be imposed because of the pattern of offending, the category of victims who were particularly vulnerable, the seriousness of offending despite the Te Piriti treatment programme, and the indications of risk appearing in the psychiatric report.

[12] If this Court were not to substitute a sentence of Preventive Detention then in the Crown's submission a more substantial finite sentence could have been imposed without adversely affecting the integrity of general sentencing principles and should be imposed.The starting point of seven years imprisonment was, in the Crown's submission, plainly inadequate in the circumstances of this case which on its best view was a borderline Preventive Detention case.

[13] Counsel for the respondent submitted to this Court, as he had in the High Court, that there were matters which reduced the risk of re-offending.These were the absence of offending for three years after release on the earlier occasion and the indications within the pre sentence report and psychiatric report that the Te Piriti programme may not have succeeded because of hearing difficulties the respondent himself has, with consequential difficulty in responding in a group situation.As to the contact with the boy after being warned, the respondent did not initiate this nor further offend after the farewell meeting.He argued that the respondent was not beyond redemption and deserves one more chance.Counsel submitted that the Judge had not erred in principle and that when compared with the offending by Leitch, which involved nine counts of indecent assault on four male complainants aged 13-15, and in respect of which this Court substituted a sentence of eight years imprisonment for the Preventive Detention which had been imposed, the six years could not be regarded as manifestly inadequate.

[14] Viewing this offending in terms of a finite sentence, we think that a starting point could not exceed 10 or perhaps 11 years without becoming anomalous in respect of finite sentencing patterns.After an allowance of a real and manifest discount for the pleas of guilty, which have saved the victim further anguish, the case would warrant a finite sentence of certainly not less than 7½ years imprisonment, which is appreciably more than the finite sentence actually imposed.We are satisfied on this approach that the sentence imposed was manifestly inadequate.The more difficult issue is whether a sentence of such length would be sufficiently protective of the public, in particular pre pubescent boys, or whether that risk is such as to warrant Preventive Detention.

[15] We take the view that the risk can only adequately be met in this case by a sentence of Preventive Detention with its singular features of continuing supervision after release and amenability to recall.The respondent received a clear warning from the High Court in 1993 that further offending would be regarded with great seriousness.He undertook the Te Piriti programme, but neither the skills he learnt there nor the warning he had received could deter him from his paedophilic activity.In the earlier case, as in this, he took advantage of a young boy who was entitled to trust him and he breached the trust.In this present matter he could not restrain himself from further contact with the boy even though he had attracted the attention of the police, as he knew.He just cannot restrain himself.No otherwise appropriate finite sentence adequately meets the risk.

[16] Accordingly leave is granted to the Solicitor-General to appeal, the appeal is allowed and the sentences imposed in the High Court are quashed. There is substituted in respect of each count a sentence of Preventive Detention.

Solicitors:

Meredith Connell (Auckland) for Crown