THE QUEEN v MERVYN WILLIAM SCOBIE [2001] NZCA 243 (2 August 2001)

IN THE court of appeal of new zealand

ca 186/01

THE QUEEN

V

MERVYN WILLIAM SCOBIE

Hearing:	30 July 2001
Coram:	Tipping J Heron J Gendall J
Appearances:	M J Thomas and A Puata for Crown J J McCall for Respondent
Judgment:	2 August 2001

judgment of the court DELIVERED BY HERON J

[1] This is an application for leave to appeal to the Court of Appeal by the Solicitor-General in respect of a six months sentence cumulative upon previous sentences totalling 10 and a half years, imposed in the Christchurch High Court on 7 June 2001.

[2] The Judge had earlier sentenced the respondent to six and a half years imprisonment on 17 May 2001 which in turn was cumulative upon an existing sentence of four years imposed in the District Court which the respondent was then serving.He noted that the effective term following that sentencing was 10 and a half years.In the course of that sentencing he had said that the respondent escaped preventive detention by a narrow margin.

[3] The reason for the further sentencing the subject of this appeal, was explained by Panckhurst J as follows:

Four days later on 21 May (2001) you entered a plea to a further charge of indecent assault committed in the mid eighties, more accurately between 1986 and 1987.That charge I note was originally included in the indictment in relation to which I imposed the sentence of six and a half years but I ordered that it be severed in a judgment of February this year.That was because the charge concerned a different complainant and the case itself was one which was unrelated in time and circumstance to the case concerning your activities in Invercargill.

[4] The Judge was not prepared to accept that it was an isolated incident, and based on his knowledge of the respondent's circumstances, by virtue of the sentencing he had earlier performed, he thought that the respondent was an opportunist predator of young children.He noted that it was unfortunate that this further offence was not before him on 17 May and that again the Crown sought a sentence of preventive detention.

[5] The Judge, referring to his earlier sentence, of six and a half years, said that no doubt the respondent was eligible for the sentence of preventive detention, and in particular it was necessary for the protection of the public that he be indefinitely detained, but noted the length of time approaching 20 years, between his activities in Invercargill and the later offending for which he was sentenced in the District Court.The Judge noted that he had said then:

"It follows that you are now serving your first term of imprisonment in relation to which you have been a sentenced prisoner for about eight or nine months.You have had no treatment at any time.These circumstances, I think, raise two questions:will prison deter you from further offending, in particular if you do take up the opportunity of treatment through the Kia Marama programme?Perhaps a more relevant question (given the assessments in the reports) is whether the inevitable lengthy finite term which I am bound to impose will not in any event result in the circumstance that you will be well into your sixties before you are released in any event.May it be that you will not pose such a risk simply on account of age?Obviously there are no easy answers to those questions."

[6] It is necessary to catalogue and describe the three distinct series of offences which were the subject of the three sentences.

1. The District Court sentence of four years imposed on 7 September 2000 was in respect of six counts including sexual violation by unlawful sexual connection, indecent assault and two charges of inducing an indecent act on a female committed on or about 1990.The offending involved the respondent's step-daughter from the age of 7 until she was 12.The District Court Judge referred to the fact that some blame was laid on the victim by the prisoner indicating a high risk of reoffending and that it was prolonged offending with very serious consequences.The District Court Judge taking a starting point of six years and allowing for an early plea of guilty sentenced the respondent to four years imprisonment.

2. Serious sexual offending against his natural daughter and his daughter's school friend between 1974 and 1979, included charges of indecent assault which would constitute sexual violation under the present law, including indecent assaults, digital penetration of her vagina, one rape and one attempted sodomy in respect of the friend.The charges were laid as representative charges.In respect of these charges the respondent pleaded not guilty, but was convicted following a jury trial in the Christchurch High Court.In respect of these charges, the sentence of six and a half years imprisonment, on 17 May resulted. It was as we have said cumulative upon the earlier four year sentence.

3. One charge of indecently assaulting a daughter of a friend of the respondent's first wife, in or about 1986 or 1987 when the girl was 5 or 6 years old.It was this offending for which he received a sentence of six months imprisonment, to make the total of 11 years.In the course of his sentencing he noted the Crown had submitted that the further offence tipped the balance and that preventive detention was the appropriate sentence.Counsel for the respondent argued for a further finite term cumulative on the ten and a half years then standing.

[7] Of particular relevance is the Judge's observations in his 17 May sentencing, that "curiously in between then and the offending against your said daughter, nothing untoward occurred or at least nothing for which convictions resulted".

[8] In other words the Judge was comparing the gap in time between the offences for which six and a half years were imposed, as contrasted with the offences for which four years were imposed.Clearly the further offending which the Judge had not dealt with at that time, fell in between those periods, was something untoward, and depending on how much weight the Judge gave it, removed the absence of offending over that period as a factor.

[9] The Crown says that the appropriate sentence having regard to this history of offending, and the other matters we are about to discuss, should have resulted in a sentence of preventive detention.Not only has the additional offending to which he pleaded guilty, tipped the balance, but already there was, based on the history, a major argument for imposing that sentence now.

[10] Counsel for the respondent pointed to the plea of guilty in respect of the offending for which a sentence of four years was imposed, and the most recent plea of guilty.Mr McCall says also that his high potential to reoffend as reported in some of the reports, is made on the premise of an absence of treatment, and that before preventive detention is considered an opportunity should be given for rehabilitation available in the form of the Kia Marama or Te Piriti courses and the respondent has expressed, through counsel, his willingness to undergo that treatment.

[11] The Court is not required to impose preventive detention whenever it is satisfied it is expedient to do so.See R v Leitch[1998] 1 NZLR 429 which we discuss later.The issue is whether the protective purpose of preventive detention could reasonably be met by an available finite sentence of imprisonment.We see this as the central theme of the Judge's sentencing and he incorporated into the present sentence under appeal, the observations that he had made on 17 May.

Turning to your personal situation, I note that you are 59, you turn 60 years in November of this year.In recent years you have been a beneficiary and presently you are a sentenced prisoner.In September of last year you were sentenced to four years imprisonment for similar offending, indecent assaults, inducing an indecent act and sexual violation.Those crimes were committed upon your step-daughter.At least in that case you did accept responsibility to the extent that you pleaded guilty and saved her the ordeal of a trial.The only other previous conviction you have is one in 1973 for indecent assault upon a child between twelve and sixteen years.For that you were placed on probation for twelve months.I note that that offence occurred just a short time before the commencement of the offending for which you are for sentence today.

[12] Plainly the mitigating factors arising from the gap between offending had now disappeared and it may be that the Judge was somewhat distracted by the observations from Crown counsel that his conclusions on sentencing on 17 May would be tested on appeal.We think that it could well have been that if he had then imposed a sentence of preventive detention it may have appeared as if he was attempting to avoid or anticipate the consequences of an appeal.It would be in the interests of the appearance of justice not to create, however unjustifiably, that sort of impression.Obviously no such appeal did follow the 17 May sentencing.

[13] We intend to approach this case on the basis of the issue of whether a finite sentence can achieve the protective purpose which preventive detention is obviously designed to create.Before doing so however, it is necessary to look at the various reports which cast some light on the prospects of rehabilitation through the available courses which will be available to the respondent in the course of either a finite sentence, or one of preventive detention.

[14] On 6 April 2000 for the purpose of the earlier sentence, and in accordance with the usual practice, the Judge requested a psychiatric report.After an initial attitude suggesting one of co-operation and a desire to discuss his sexual offending the psychiatrist noted a later reluctance to do so.He said:

The defendant appears to have a pattern of repeat sexual offending against young girls aged between 8 and 11.Attempts to explore this with him, however, met with a constant level of denial, an inability to accept any part of his own offending behaviour and a tendency to downplay the entire issue.Furthermore, he totally lacked any sense of empathy for his victims and completely lacked any sense of remorse for the effects his behaviour might have on his young victims.The principal area of concern the defendant showed was more about the trap that he now found himself in, in prison.Such a defended stance by the defendant does not auger well for his response to treatment.

[15] The consultant psychiatrist suggested that the matter be referred to the departmental psychologists who work in specialised areas such as Kia Marama. The report from two psychologists is bleak and under the heading "Potential to Reoffend" they say as follows:

Mr Scobie has a long history of offending against pre-pubescent girls, both within his family and outside.With one of his victims, his offending showed a clear escalation in severity over time to the point of rape and sodomy.Mr Scobie denied much of his offending and as such fails to take responsibility. In cases where he has admitted his offending he has tended to fail to take responsibility by blaming the victim for initiating the activity, supposedly due to their appearance or them touching him.Mr Scobie has had no treatment to address his offending.

In addition Mr Scobie has virtually no social supports and poor social skills for developing healthy relationships.At this point in his life, he has no significant goals except looking forward to retirement.These factors increase the risk of the lifestyle imbalance which increases his vulnerability to offending.However, his offending behaviour is not complicated by substance misuse or psychiatric disorder.

His long history of offending against multiple victims, both intra-familial and extra-familial, coupled with beliefs which support his offending, in the absence of treatment, suggests he has an extremely high potential to re-offend.

Recommendations

It is strongly recommended that Mr Scobie attend the Kia Marama Special Treatment Programme for sex offenders.

[16] In R v Leitch [1998] 1 NZLR 429 this Court said this:

Section 75 is a stand-alone sentencing provision. The standards to be met are those set out in the section. There are no other preconditions or criteria. However s 75(2) does not require the Court to impose preventive detention whenever it is satisfied that it is expedient for the protection of the public to detain the offender in custody for a substantial period. The Court "may" pass a sentence of preventive detention. At that point, when weighing the exercise of the discretion, the Court will ordinarily consider whether the protective purpose of preventive detention could reasonably be met by an available finite sentence of imprisonment. And there may perhaps be other considerations which in particular circumstances may justify the Court in the proper exercise of discretion not to impose preventive detention. Nevertheless, what is clear on this analysis is that, as the Court put it in R v Rameka (Court of Appeal, Wellington, CA 178/97, 18 June 1997), "the statutory test is not to be burdened by the notion that preventive detention is a sentence of last resort".

Where the "expedient" standard is met it is of course appropriate in the exercise of the residual discretion to compare the statutory incidents and effects of preventive detention and an available finite sentence. A comparison of that kind may assist the sentencing Court in deciding whether, following its assessment of the risk of reoffending at an appreciably distant future time, the necessarily substantial period of detention should be by way of an indefinite or an available finite term. If, compared with an available finite sentence, preventive detention would be longer than necessary to meet the objectives, the indeterminate sentence would be manifestly excessive.

[17] In this case the respondent is serving a lead sentence of four years imprisonment for sexual violation, and a cumulative lead sentence of six and a half years for sexual violation, so a term of two thirds of ten and a half years plus one half of his six month sentence will be required to be served before the respondent is automatically released.That amounts to a little over seven years.He will however be subject to conditions of release which are likely to prohibit contact with children within the age range of his previous victims, and for him to be subject to recall up until the time his eleven year sentence has been served.He will if he agrees, be subject to rehabilitative treatment of a general kind including transfer to Kia Marama or Te Piriti programmes nearer the date of his release.If he declines to co-operate,an attitude which we think is unequivocally demonstrated at the moment despite some submissions to the contrary through his counsel, he will be released without undergoing any appropriate treatment.

[18] The sentence of preventive detention as the law currently stands will entitle him to be considered for parole after serving ten years and it is likely that a failure to attend and succeed at any child sex offenders treatment program would delay his release for some considerable time.A successful completion of this course and a demonstration that his attitude had significantly changed from that which is presently displayed, would likely see him released a reasonable time from his eligibility date all other matters being equal.

[19] By the time the reports to which we have referred were completed, namely the psychiatrist's report of 6 April and the departmental psychologist report of 14 May, the respondent had been in custody at least since 7 September 2000.He has had approximately seven to eight months to reflect on his circumstances but no significant change had apparently occurred in his attitude, which all suggests to us that chances of rehabilitation in this way, are somewhat unlikely.

[20] This persuades us that the greater incentive that preventive detention can provide in order to ensure a serious undertaking of remedial programs, is likely to be obtained through that form of sentence, than by serving the undoubtedly long finite sentence.The Judge thought his release at an age of approximately 67, would lessen the likelihood and opportunity for this sort of offending.The opportunity of him moving into a family or any relationship where there is access to pre-pubertal teenage girls would no doubt diminish, with time, as the Judge predicated.

[21] In our discussion with Ms Thomas in this case we suggested that it is relatively rare for preventive detention to be imposed in the absence of significant earlier intervention in the form of earlier sentences and likely accompanying warnings.Ms Thomas suggested R v Martin, CA 251/99, 12 October 1999, was such a case and of course such earlier sentencing history is not a prerequisite for this type of sentence primarily addressed as it is, to the protection of the public.In any event there is one earlier conviction in 1972 for indecent assault when a community based sentence was imposed.

[22] Notwithstanding the Judges careful analysis of the competing factors, we think the risk cannot be discounted sufficiently to enable a finite sentence to be imposed.

[23] It is on the Crown to show in an appeal such as this that the considerations justifying an increase in the sentence speak more powerfully than those which might justify a reduction.R v Wihapi [1976] 1 NZLR 422.We think that the protection of the public in the form of the category of persons represented by his victims renders a finite sentence, in principle wrong.

[24] Accordingly leave to appeal is granted and the appeal allowed.The sentence of six months cumulative on a term of ten and a half years is quashed and a sentence of preventive detention is imposed.

Solicitors:

Crown Law Office, Wellington

Papprill Hadfield & Aldous, Christchurch for Respondent