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R v Dittmer CA258/01 [2002] NZCA 385 (24 October 2002)

Last Updated: 13 January 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s139, CRIMINAL JUSTICE ACT 1985


IN THE COURT OF APPEAL OF NEW ZEALAND
CA258/01



THE QUEEN




V




ROBERT JASON DITTMER


Hearing:
14 August 2002


Coram:
Gault P
Tipping J
McGrath J
Anderson J
Glazebrook J


Appearances:
T Ellis and L C Ord for Appellant
S P France for Crown


Judgment:
24 October 2002



JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1] Mr Dittmer was convicted after trial on two charges of indecent assault and one charge of sexual violation by unlawful sexual connection. He was sentenced, on 12 July 2001 under the sentencing regime then in force, to preventive detention in relation to the sexual violation charge. He appeals against his conviction on all three charges and also against the sentence of preventive detention.

Background facts

[2] Mr Dittmer and the complainant were both resident at a Salvation Army men’s hostel. Mr Dittmer was 25 at the time of the alleged offending and the complainant was 19. The charges arose out of an incident in a park in the early evening of Friday, 11 August 2000. The first count in the indictment was of indecent assault by kissing the complainant on the mouth. The second count was also of indecent assault. The allegation under this count was that Mr Dittmer touched the complainant’s genitals with his hand. The third count was of sexual violation through unlawful sexual connection occasioned by the penetration of the complainant’s anus by Mr Dittmer’s penis.
[3] In evidence in chief the complainant said that Mr Dittmer had grabbed him by the arms and kissed him with an open mouth. After this Mr Dittmer pulled him to the ground and pulled his pants down. Mr Dittmer then pulled his own pants down. The complainant said that Mr Dittmer touched his stomach and chest with his hand but that he did not touch any other part of his body at this point. He then gave evidence as to Mr Dittmer pulling him up to his knees, pushing his head down and inserting his (Mr Dittmer’s) penis into his anus. The complainant said that he had at various times told Mr Dittmer to stop and that Mr Dittmer had told him to be quiet and threatened to kill him.
[4] Mr Dittmer in evidence agreed that he and the complainant had gone to the park and that he had kissed the complainant. He maintained that the kiss was consensual. He denied touching the complainant’s genitals and the anal penetration but admitted that he had touched the complainant’s chest and stomach.
[5] The jury returned verdicts of guilty on all three charges.

Conviction appeal

[6] In relation to the conviction appeal Ms Ord for Mr Dittmer says first that there was no evidence on which the jury could have convicted in relation to the second of the indecent assault charges. Secondly she says that the Crown led inadmissible recent complaint evidence. Thirdly she submits that Mr Dittmer’s statement to the police, which was put in evidence, should have been edited to exclude reference to the fact that Mr Dittmer was taking medication to suppress his sexual drive. Finally she asserts that Crown counsel improperly elicited prejudicial evidence in cross-examination.

Count 2

[7] As can be seen from the summary of the complainant’s evidence in chief as set out above the complainant did not give evidence at that stage as to Mr Dittmer touching his penis. He gave evidence as to Mr Dittmer touching his stomach and chest in circumstances that could be seen as amounting to indecent assault. The indictment, however, was specific as to the action alleged. In addition Crown counsel in closing, while mentioning at one point the touching of the stomach and the chest, was clear that the charge related to touching of the genitals. The judge in summing up also referred to count 2 as relating to the touching of the complainant’s genitals. The jury therefore were not asked to consider whether the touching of the stomach and the chest was an indecent assault.
[8] In cross-examination there was a rather obscure question and answer relating to the alleged touching of the complainant’s penis as follows:
  1. He [Mr Dittmer] will deny that he touched your penis at all on this occasion, true, not true.

A. Not true.

[9] This allowed Crown counsel to re-examine about the matter as follows:
  1. My friend also asked you a question or put to you that Mr Dittmer will deny that he ever touched your penis and you said no that’s not true, that denial. When did he touch your penis.
  2. Not long after he touched my chest.
  3. And what position were you in when that happened.
  4. I was still on my back.
  5. And was that over the top of your clothing or underneath your clothing.
  6. Over the top.
  7. And when he was touching that area of your body, what was he using.
  8. His Hand.
  9. And was his hand staying still or was it moving.
  10. Moving.
  11. Did you say anything to him when he was doing that.
  12. Telling him to stop it.
  13. Did he stop it.
  14. No.

[10] There was therefore evidence elicited in re-examination to support the conviction on Count 2. It was up to the jury to decide whether to accept this evidence in light of the complainant’s statement in examination in chief that Mr Dittmer had not touched any other part of his body after touching his chest.

Recent complaint evidence

[11] The Crown led recent complaint evidence from two witnesses - a Captain of the Salvation Army and a nurse at the hostel. On the Saturday, the day after the alleged offending, the complainant spoke to the Captain and complained that Mr Dittmer had done something sexual to him. As a result of this allegation Mr Dittmer was asked to leave the hostel and he did so. The complainant had tried to talk to the Captain the evening before but she had been unavailable.
[12] On the Monday after the alleged offending the complainant consulted the nurse about an injury to his knuckles. In the course of the consultation he complained that Mr Dittmer had raped him. The nurse gave evidence of this complaint as well as the complainant’s demeanour during the consultation. She also said that, as a result of the complainant’s disclosure, she decided to call in the Captain as she did not work the next day and the complainant’s allegations would have to be followed up. The Captain came into the room and the complainant repeated the allegation of rape but gave no further details. The evidence of the repetition of the allegation of rape was given only by the Captain who also gave a description of the demeanour of the complainant when he repeated the allegation of rape.
[13] Ms Ord on behalf of Mr Dittmer does not challenge the admissibility of the evidence of the complaint to the Captain on the Saturday or the evidence of the complaint made to the nurse on the Monday. What is challenged is the evidence of the Captain as to the repetition to her, in the presence of the nurse, of the complaint of rape on the Monday. Ms Ord says that this evidence was duplication and also enabled the Captain to give evidence of the demeanour of the complainant at the time of the second complaint, evidence that was highly prejudicial.
[14] The first point in this regard is that we have difficulty in seeing the complainant’s two statements on the Monday morning about being raped as being other than a single complaint, linked as they are so closely in time and place. There is no rule that there cannot be two witnesses in relation to one complaint. Secondly the Captain’s evidence of demeanour would have been admissible in any event based as it was on her observations. We also note that none of the recent complaint evidence was the subject of objection at trial and that may have been for legitimate tactical reasons.
[15] For the above reasons this ground of appeal must fail.

Mr Dittmer’s statement

[16] Ms Ord submits that either Mr Dittmer’s statement should have been edited to remove the reference to Mr Dittmer taking libido-suppressing medication or evidence should have been called as to the effect of the drug. Leaving the reference to the medication before the jury without that further evidence was in her submission highly prejudicial.
[17] It is clear that Mr Dittmer’s statement had been edited in other ways and indeed one of the excisions was just above the passage now objected to. It can be taken that it was a conscious decision of trial counsel not to object to the statement about the drug and we can think of a number of reasons why that decision may have been made (and possibly even on express instructions from Mr Dittmer). In the particular circumstances of this case there were clearly reasons why a decision may have been taken not to call evidence as to the effect of the drug. Apparently Mr Dittmer was still able to function sexually despite the drug.
[18] In any event, the objection now taken to the inclusion of the reference to the drug in the statement must be seen as an attack on trial counsel. This was not a ground of appeal. If incompetence of trial counsel is to be raised on appeal then it must be raised explicitly and on notice. If it had been then we would not have had to speculate about trial counsel’s tactics as we would have had affidavit evidence from counsel. This ground cannot be relied on now.

Eliciting of prejudicial evidence

[19] The complaint under this head is that the Crown prosecutor elicited prejudicial evidence from Mr Dittmer in cross-examination. This was said to relate to the staff at the hostel disapproving of the amount of time he was spending with the complainant, the staff having him under observation, and evidence that he had had extensive contact with mental health services and that he did not deal with rejection very well. It was submitted that this evidence gave the impression that Mr Dittmer had a history of previous sexual offending or at the least that he was a dangerous person who could not be trusted without supervision.
[20] In our view there was nothing untoward in the questioning by Crown counsel. Much of the material complained of was in fact first introduced by Mr Dittmer himself, either in his statement or in evidence in chief, and was merely giving legitimate background information to his living conditions and his relationship with the complainant. The only part of the questioning that could in other circumstances raise some concerns was the questioning about the staff having Mr Dittmer under observation. As one of the main planks of the defence was that the offending was very unlikely to have taken place in a park, however, this line of questioning could be seen as legitimate to explain why sexual activity was not able to take place in the hostel.
[21] This ground of appeal must also fail.

Submissions of Mr Ellis on the sentence appeal

[22] On behalf of Mr Dittmer, Mr Ellis puts forward a general systemic challenge to the sentence of preventive detention as well as arguing specific points in relation to Mr Dittmer. In terms of his general challenge Mr Ellis submits that the Court should take into account the criticisms made by the United Nations Human Rights Committee of the sentence of preventive detention and its concerns that it was not compatible with Articles 9 and 14 of the International Covenant on Civil and Political Rights (ICCPR). In particular Mr Ellis submits that the sentence violates the presumption of innocence, to the extent that it can be seen as punishment in respect of possible future offences. In his submission the Court should also take into account the fact that the system does not provide for treatment until near the end of the 10-year minimum non-parole period and no regular reviews are conducted until after the end of that period. Thus the detention is arbitrary. Mr Ellis argues that the Court has in other contexts taken into account international obligations in interpreting legislation and should do so here. Mr Ellis also relies on the New Zealand Bill of Rights Act (BORA), the Magna Carta and the Bill of Rights 1689.
[23] Mr Ellis asks this Court to review its decision in R v Leitch [1998] 1 NZLR 420 in the light of these considerations. In particular he submits that Leitch was wrongly decided when at 428 the Court said that it was inapt to import notions of the burden of proof into the word “satisfied” in relation to the requirements of s75(2) and (3A) of the Criminal Justice Act 1985. In Mr Ellis’ submission the ordinary criminal standard of proof should apply. The decision was also wrong in that it failed to consider the ICCPR and the BORA despite hearing submissions.
[24] Moving to the specific points in relation to Mr Dittmer, Mr Ellis submits that the psychologist’s report was inadmissible as Mr Dittmer had not given his informed consent to its production. In addition, the psychologist was biased as he was in a therapeutic relationship with Mr Dittmer. The admission of the report in any event breached the principle against self-incrimination. Mr Ellis also criticises the process at the sentencing and says that it was far too peremptory and the evidence too slight for the imposition of a sentence of such seriousness. He further criticises the Judge’s sentencing remarks as not disclosing reasons and thus constituting a failure to apply Leitch and independently as breaching of s23(5) of BORA. Finally he submits that the sentencing Judge failed even to realise that he had a residual discretion and did not consider its use. He also failed to consider a finite sentence and a finite sentence should, in Mr Ellis’ submission, have been imposed in the circumstances.

General criticisms

[25] We now examine the proposition that the legislation relating to preventive detention should be interpreted in the light of ICCPR. It is true that this Court has said on a number of occasions that statutes should be interpreted in a manner consistent with international obligations, but that can only be done if the words of the statute allow it – see eg the remarks in the principal judgment of this Court in New Zealand Airline Pilots’ Association v Attorney-General (1997) 3 NZLR 269, 289. The criteria Parliament has laid down for the imposition of preventive detention cannot be overridden by the Court.
[26] The merits of the arguments as to the BORA and the ICCPR may not have been examined in detail by the Court in Leitch, the appeal having been allowed on other grounds. However, the Court did at 431 refer to the Crown submissions with approval. In particular the Court set out the submission that:

.... the central issue for the Court is the appropriateness of the sentence imposed in terms of domestic law, with the complaints machinery via the Optional Protocol to which New Zealand has acceded and the periodic reporting requirements to the United Nations Human Rights Committee being the appropriate mechanisms for addressing the question whether New Zealand is fulfilling its international obligations under the International Covenant.

[27] Leitch therefore interpreted the legislation in the manner it did against a background of those comments. It is a recent decision of the Court and one of five Judges. There would need to be strong reasons to depart from any aspect of that decision. In fact there appear to be strong reasons not to depart from the decision.
[28] In relation to Mr Ellis’ submission that preventive detention involves arbitrary detention, given the 10 year period before a prisoner sentenced at that time is eligible for parole we note that Parliament, with the new sentencing and parole regime, which came into effect on 1 July 2002, has reconfirmed the parole provisions for sentences of preventive detention imposed before the new regime – see s20(2) of the Parole Act 2002. The power of referral for consideration for early parole has even, by s25(1) of the Parole Act 2002, been narrowed. Now only the chairperson rather than any Parole Board member can refer and only in exceptional circumstances. As the referral power is not at issue before us it would be inappropriate for us to comment, as Mr Ellis has asked us to do, on how (if at all) the ICCPR may relate to its exercise.
[29] Parliament has retained the sentence of preventive detention in the new Sentencing Act 2002, albeit with a more flexible parole regime. The consistency of the sentence of preventive detention under the new regime with the ICCPR was considered during the select committee process in the course of the passage of the new sentencing regime through Parliament and the Justice and Electoral Committee was satisfied the provisions complied with ICCPR (see p 20 of its report).
[30] In enacting the new preventive detention regime Parliament can be seen as having approved the principles set out in the decision in Leitch, concerning criteria for the imposition of the sentence, to a large degree and against a background of a consideration of New Zealand’s obligations under ICCPR. It would thus clearly be inappropriate for this Court to depart from that decision. In s87(2)(c) of the new Sentencing Act 2002, Parliament uses the words “the court is satisfied” and, in s87(4), refers (albeit in different terms) to many of the factors set out in Leitch. It must therefore be taken to have approved the analysis in Leitch. In particular, by using the word “satisfied” without further qualification (albeit with more guidance as to factors to be taken into account) Parliament may be presumed to have approved the interpretation by the Court of that word as not requiring proof beyond reasonable doubt set out in Leitch at p 428.
[31] We note in addition that Parliament has specifically set out the standard of proof in respect of disputed facts – see s24 of the Sentencing Act 2002. It can be assumed that it would have set out a standard of proof in the preventive detention context if it had wished the test in Leitch no longer to apply.

Psychologist’s report

[32] We now move on to the specific concerns raised by Mr Ellis. The first of these relates to the High Court Judge’s reliance on the psychologist’s report.

Circumstances relating to the production of the psychologist’s report

[33] It appears that Crown counsel sought the report from Mr Tie, a clinical psychologist, as a substitute for access to the reports prepared within the prison context in relation to the appellant’s previous sentence and the application which had been granted under s105 of the Criminal Justice Act regarding that previous sentence. The report was not prepared under s121 of the Criminal Justice Act.
[34] Mr Tie set out how his report was written in his affidavit of 12 August 2002. He said that he had prepared a draft of his report before going to see Mr Dittmer and did not intend to interview Mr Dittmer at that time as he was familiar with his situation from their past work together. Mr Tie showed Mr Dittmer the draft report and told him he did not have to provide additional information. He gave Mr Dittmer the opportunity to comment on the report but he did not wish to do so. Mr Tie asked Mr Dittmer to acknowledge that he had read the report and received a copy by signing the report, which Mr Dittmer duly did.
[35] Mr Tie set out at the beginning of the report that he had explained to Mr Dittmer the purpose of the assessment and the limits of its confidentiality. He indicated that Mr Dittmer consented to the assessment. Mr Tie, however, stated in his affidavit before this Court that he did not ask for Mr Dittmer’s consent to write the report presented to the court as he did not think consent was required. Mr Tie says that the limits of confidentiality (including the fact that information provided by Mr Dittmer could be used to inform subsequent reports to the court) had been explained to Mr Dittmer at the time of the initial assessment sessions in October 1998. The explanation as to the limits of confidentiality would not have been repeated at subsequent sessions as Mr Dittmer moved directly from assessment to treatment. Mr Dittmer’s consent to treatment was sought and it was explained that he had a right to refuse to engage in treatment and that he could withdraw at any time.
[36] Mr Tie treated Mr Dittmer until Mr Dittmer was taken into custody in late August 2000, although, in accordance with the policy of the service, he continued to see him on about a monthly basis after that to try and assist him in coping with his imprisonment.

Mr Ellis’ submissions on the psychologist’s report

[37] Mr Ellis submits that Mr Tie’s report should not have been admitted for the purposes of the sentencing hearing. No objection was taken to that report by counsel acting for Mr Dittmer at sentencing. Mr Ellis, however, submits that the report contained protected communications in terms of s33(3) of the Evidence Amendment Act (No2) 1980 (EAA) and that such communications would only be disclosed with the consent of Mr Dittmer. Such consent was neither sought nor obtained at the time of making the report. Mr Ellis also points out that s121 of the Criminal Justice Act 1985 provides only for reports to be required from psychiatrists and not psychologists.
[38] Mr Ellis submits that the inclusion of protected communications in Mr Tie’s report, in the form of case notes from treatment sessions, taints the whole report. Mr Tie’s report says that his sources of information were clinical interview with Mr Dittmer (although, as noted above, Mr Dittmer was not interviewed immediately prior to the writing of the report), documents contained on Mr Dittmer’s Psychological Services file including case notes from treatment sessions with Mr Tie, two Forensic Psychiatric Services reports and two Psychological Services reports to the Parole Board written by Mr Tie.

Crown submissions on psychologist’s report

[39] The Crown submits that s33 EAA does not preclude reliance on Mr Tie’s report. Mr Dittmer has already been convicted. Although sentencing is clearly a criminal proceeding Mr Dittmer was not facing criminal charges at the time of sentencing. The material in the psychologist’s report was being used solely for the consideration of sentencing options and at the time of sentencing Mr Dittmer was not a defendant in criminal proceedings as required by s33 of the EAA. The material is not evidence in any classic sense. It is not sworn and can be placed before the Court as a report. If challenged of course it may turn into evidence but there was no such challenge here.
[40] The Crown argues that the purpose of s33 of the EAA is to allow people who are ill to receive treatment. If that involves revelation of uncharged offending, a psychiatrist or other medical person cannot divulge it without consent if the patient is an accused in criminal proceedings. This privilege over-rides the admissions exception to the rule excluding hearsay evidence. When it comes to sentencing, however, the policy interest is in the Court having as much relevant material as possible. Section 33 of the EAA should therefore not be interpreted to deny the Court access to this material.
[41] Even if s33 applies and consent was required, then the Crown submits that Mr Dittmer must be held to have consented to the material being used as the interviews and treatment were conducted on the basis of the restrictions on confidentiality explained to Mr Dittmer at the commencement of Mr Tie’s relationship with Mr Dittmer.

Discussion

[42] Section 33 of the EAA provides as follows:

Disclosure in criminal proceeding of communication to medical practitioner or clinical psychologist

(1) Subject to subsection (2) of this section, no registered medical practitioner and no clinical psychologist shall disclose in any criminal proceeding any protected communication made to him by a patient, being the defendant in the proceeding, except with the consent of the patient.

(2) This section shall not apply to any communication made for any criminal purpose.

(3) In subsection (1) of this section, “protected communication” means a communication made to a registered medical practitioner or a clinical psychologist by a patient who believes that the communication is necessary to enable the registered medical practitioner or clinical psychologist to examine, treat, or act for the patient for—

(a) Drug dependency; or

(b) Any other condition or behaviour that manifests itself in criminal conduct;—

but does not include any communication made to a registered medical practitioner or a clinical psychologist by any person who has been required by any order of a Court, or by any person having lawful authority to make such requirement, to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or other purpose.

(4) In subsection (3) of this section—

Clinical psychologist means a psychologist registered under the Psychologists Act 1981 who is engaged in the diagnosis and treatment of persons suffering from mental and emotional problems; and includes any person acting in a professional character on behalf of the clinical psychologist in the course of the treatment of any patient by that psychologist:

Drug dependency means the state of periodic or chronic intoxication, produced by the repeated consumption, smoking, or other use of a controlled drug (within the meaning of section 2(1) of the Misuse of Drugs Act 1975) detrimental to the user, and involving a compulsive desire to continue consuming, smoking, or otherwise using the drug or a tendency to increase the dose of the drug:

Registered medical practitioner includes any person acting in his professional character on behalf of the registered medical practitioner in the course of the treatment of any patient by that practitioner.

[43] Sentencing is clearly a criminal proceeding in terms of s33 of the EAA. We have difficulty in seeing Mr Dittmer as other than a defendant in such proceedings. The term defendant is used in our view merely to make it clear that the privilege does not extend to all participants in a criminal process. This means that we reject the Crown’s argument that s33 of the EAA does not apply in this context. We note the policy arguments put forward by the Crown and the desirability of having as much information before the Courts as possible at sentencing but these policy arguments cannot override the plain wording of s33.
[44] This leaves the question as to whether there was a valid consent. There is no doubt that most of Mr Dittmer’s communications with Mr Tie over the period when Mr Tie was treating Mr Dittmer will come within the definition of protected communication as they were made by Mr Dittmer believing that the communication was necessary for his treatment. The Crown argues that all communication took place after the limits of confidentiality had been explained to Mr Dittmer in the initial meeting. It is submitted that any communication made after that point was made on the understanding that it could be disclosed in later court proceedings.
[45] We consider that the consent contemplated by s33 is a specific and informed consent to disclosure in circumstances where there is a proper choice given. As we understand it the choice given to Mr Dittmer by Mr Tie was not whether or not the protected communication would be disclosed. Mr Dittmer was given no choice as to that. If he made any communication at all then that was on the basis, advised by Mr Tie, that it would be disclosed. This is not the type of consent envisaged by s33 of the EAA. The choice contemplated by that section is a choice of whether or not to consent to disclosure of a past protected communication. It is not a choice of whether or not to make a protected communication knowing it may be disclosed later. That would be against the policy of s33 of the EAA. The policy is to encourage people to seek treatment which is very much in the public interest.
[46] In addition, if the type of consent given by Mr Dittmer were valid in terms of s33, the effect would be that consent could be given in advance to later revelation in criminal proceedings of any type and at any time. In this case it is unlikely to have been contemplated by Mr Dittmer (or indeed Mr Tie) at the time of the supposed consent that Mr Tie would later be writing a report for a Court to consider in relation to a sentence of preventive detention. Presumably, if the Crown’s argument is accepted, the material could also be disclosed in any later trial on other charges (something that the Crown acknowledged would be against the policy of s33 of the EAA).
[47] We also have concerns at the suggestion that a valid consent to disclosure can be given at the beginning of a course of treatment, with no repetition at all over the period of treatment, and, what is more, over a period when the practitioner treating a patient will presumably be encouraging communication and from a person who is unwell or otherwise vulnerable.
[48] We conclude therefore that there was no valid consent given by Mr Dittmer to the disclosure of protected communications. On a reading of Mr Tie’s report we also agree that there appears to be material based upon protected communications. The report also, however, contains observations of Mr Tie and others as to Mr Dittmer’s behaviour. These observations would not necessarily be protected. Reports of observations by others would of course be hearsay and this may affect the weight placed on them but, unless the matters raised are contested, we do not consider it necessary to call the people involved. We would not accept Mr Ellis’ submission that the whole report is necessarily tainted by the inclusion of protected communications.
[49] In this case, however, it is difficult on the information before us to be sure what parts of the report are based on protected communications and to segregate these parts from the remainder of the report. We thus propose to deal with this appeal on the basis that Mr Tie’s report should not have been admitted at all. Because of this decision we do not need to consider Mr Ellis’ submissions about bias or self-incrimination. We do note that there can be no criticism of the Judge in relation to the admission of this report. The report on its face indicated at the beginning that consent had been given and no objection was taken at sentencing on behalf of Mr Dittmer.
[50] We also note at this point that there was also a report from a psychiatrist, Dr Miller, commissioned under s121 of the Criminal Justice Act. To write that report Dr Miller reviewed Mr Dittmer’s files as well as discussing Mr Dittmer with staff of the Forensic Psychiatric Service, including his former treating psychiatrist. As no objection was taken to the admissibility of Dr Miller’s report it is not necessary for us to consider whether a report, even one commissioned under s121 of the Criminal Justice Act, would raise some of the same issues under s33 EAA as Dr Tie’s report.

Process at the Sentencing

[51] Mr Ellis’ next argument was that, where a sentence of preventive detention is at issue, there should in all cases be an oral hearing allowing questioning of any expert witnesses and properly led evidence as to any other matters sought to be relied upon. We have already made some comments on this submission in relation to hearsay matters contained in reports.
[52] If a person to be sentenced wishes, he or she can of course require witnesses to be available for cross-examination and can call witnesses, including other expert witnesses who might have a different perspective. A judge can also ask for further material to be included in any court-ordered reports if he or she considers that necessary to provide a full picture for sentencing. However, it must be remembered that sentencing remains to a large degree an adversarial process and a judge should be careful not to usurp the parties’ role in this regard. Whether there is an oral hearing with witnesses will therefore usually be a matter for the person to be sentenced and his or her counsel and/or the Crown. Mr Dittmer and his counsel did not in this case require evidence to be given at an oral hearing. Given the content of the reports before the court one can surmise that this decision may have been made because such an oral hearing was unlikely to have ameliorated Mr Dittmer’s situation and may have made it worse. This therefore can provide no ground for appeal. We note too this ground of appeal appears to be an attack on trial counsel without a proper foundation having been laid.
[53] Mr Ellis then submits that too much weight was given to the psychiatrist’s report. He submits that the literature shows that predictions of future offending in individual cases are notoriously unreliable. Courts therefore should give little weight to any predictions made. We make a general comment first on this submission.
[54] It was not a ground of appeal that trial counsel was incompetent in failing to draw the sentencing Judge’s attention to the literature Mr Ellis refers to. There was no application to adduce fresh evidence on appeal (and of course any such application would have run into difficulties as the literature referred to would have been available at the time of sentencing). It is true that a Court is able, under s42 of the Evidence Act 1908, to take judicial notice of published material where that is authoritative. In this specialist area, however, one would (at the least) expect expert evidence confirming that the material referred to is authoritative. In addition, in this case Mr Ellis seeks to impugn the psychiatrist’s report on the basis of extracts from the literature included in submissions. This is inappropriate. The literature should have been put to the psychiatrist in cross-examination at the sentencing hearing (or on appeal if relevant applications had been made) to give him the opportunity to comment.
[55] Having said this we acknowledge that prognosis as to future offending is undoubtedly difficult, especially where predictions are required for other than the short term. Psychiatrists will also readily acknowledge those difficulties. Parliament did in s75(3A) of the Criminal Justice Act, however, at least in the case of first offenders, require a psychiatric report as a pre-condition to the imposition of a sentence of preventive detention. Parliament must have considered such a report to have utility and intended that it be considered carefully by the sentencing judge. It has under the new sentencing regime extended the requirement by requiring reports from two health assessors in all cases where preventive detention is in issue – see s88(1)(b) of the Sentencing Act 2002. Parliament’s will in this regard cannot be ignored. We note the similar conclusions come to by the Supreme Court of Canada in Lyons v The Queen (1987) 37 CCC (3d) 1 at 48-51 per La Forest J.
[56] Mr Ellis’ next submission is that in all cases, when evaluating a psychiatrist’s evidence, a judge must carry out the same analysis as was conducted in R v Neve (1999) 137 (CCC) (3D) 97. In our view the analysis there suggested is simply a reflection of the general factors relevant when examining expert evidence. It will not usually be necessary for judges to articulate their assessment of these general factors. As with any expert witness the report of a psychiatrist must of course be examined carefully by the judge in the light of all the material provided. If specific challenges are made to the expert’s view (or are obvious from the report itself) these must be considered and dealt with by the judge.
[57] In this case Dr Miller, the psychiatrist, was clearly well qualified and very experienced. He based his report on examination and familiarised himself with Mr Dittmer’s history as is good clinical practice. His report follows a conventional structure and sets out both his conclusion that Mr Dittmer presents a high risk of reoffending and also the reasons for that conclusion in a manner that is easily understandable and professional. The Judge was entitled to rely on that report in coming to his conclusion as to the appropriate sentence.

Sentencing remarks

[58] Mr Ellis’ next submission relates to the sentencing remarks. Those remarks amounted to some one and a half pages. The Judge discussed briefly the circumstances of the offending and the effect on the victim. He also referred to Mr Dittmer’s previous convictions and noted that Mr Dittmer had also admitted relevant incidents which were not the subject of criminal prosecution. He quoted the conclusion of the reports from both the psychiatrist and the psychologist as to Mr Dittmer being at high risk of re-offending. He then stated that, on the basis of the material before him, he considered there to be a substantial risk of Mr Dittmer committing a specified offence upon his release and concluded that it is expedient for the protection of the public that he should be detained in custody for a substantial period.
[59] Contrary to Mr Ellis’ submission we do not consider that the sentencing remarks show that the Judge abdicated judicial responsibility for the decision and relied totally on the expert opinion. It is clear that the Judge turned his mind to the relevant factors and made his own assessment.
[60] The sentencing remarks were, however, unusually brief in the context of a sentence of preventive detention. The Judge, with some justification, may have considered that this was such a clear case for preventive detention that he did not need to elaborate. The sentence of preventive detention, however, is undoubtedly one of the most serious punishments that can be imposed. A person sentenced to such a serious sentence has the right to know in some detail exactly why the sentence is being imposed and is entitled to understand the full judicial reasoning process with regard to the factors that have been held relevant to the determination. In this case we agree with Mr Ellis that the sentencing remarks of the Judge could have been fuller.
[61] We agree also with Mr Ellis that there is nothing in the sentencing remarks that shows the Judge considered his residual discretion and in particular the question of whether a finite sentence (increased, if appropriate, to take account of public protection factors) would suffice. Again this may have been because the Judge considered there was no realistic alternative. If that was the case this conclusion and the reasons for it should have been articulated.

Discussion on sentence appeal

[62] We have accepted the submission that the psychologist’s report should not have been admitted. We have also accepted the submission that the Judge failed to consider the residual discretion (or at least failed to articulate that in his sentencing remarks). We have also accepted the submission that the Judge’s sentencing remarks could have been fuller, given the imposition of such a serious sentence. This means that this Court needs to consider the appropriate sentence afresh. In doing this we will ignore the psychologist’s report and take into account the residual discretion. We first examine each of the Leitch criteria (as set out at 429 of that decision):

... the nature of the offending, its gravity and the time span; the category of victims and the impact on them; the response to previous rehabilitation efforts; the time elapsed since any relevant previous offending and the steps taken to avoid reoffending; acceptance of responsibility and remorse for the victims; predilection or proclivity for offending taking account of professional risk assessments and the prognosis for the outcome of available rehabilitative treatment.

Nature of the offending

[63] Mr Dittmer has prior convictions for obscene exposure in 1994 and misuse of a telephone in April 1996, receiving sentences of supervision. In November 1996 he was also convicted of various charges of indecent assault, inducing an indecent act and unlawful sexual connection involving oral sex. The victim was a boy of 6. For those offences Mr Dittmer was sentenced to a total of 3 years and 6 months imprisonment. He served all but three months of that sentence.
[64] The current offending includes sexual violation through penetration of the victim’s anus by Mr Dittmer’s penis. Given his prior convictions and the current offending Mr Dittmer therefore qualified for the sentence of preventive detention by virtue of both limbs of s75(1) of the Criminal Justice Act.
[65] It is true that Mr Dittmer’s list of prior convictions is not as extensive as in some cases where preventive detention is at issue. On the other hand there has been an escalation in the seriousness of the offending culminating in the penetrative sexual violation against the current victim. This escalation is of concern to us and we note that it was also one of the factors that led Dr Miller, the psychiatrist, to conclude that Mr Dittmer was at high risk of reoffending.

Category of victims

[66] As indicated, the victim of Mr Dittmer’s immediately prior offending was a child of 6, the son of a woman with whom Mr Dittmer had formed an association. The current victim was a young man of 19 and someone who had serious personal problems that had led him to the Salvation Army Hostel. Offending of a sexual nature against young children is of course particularly serious and violating the young victim, only 19, who was vulnerable for other personal reasons is also of major concern.
[67] Both the victims were male (as were apparently the victims of the earlier offending) and that is a factor that Dr Miller reports as one that predicts re-offending.

Response to rehabilitation

[68] Despite being willing to engage in extensive attempts at rehabilitation, Mr Dittmer has had a very poor response. This is clearly of major concern.
[69] According to the Judge’s remarks at sentencing the offending against the 6 year old boy took place during the time Mr Dittmer was attending the Stop programme. While imprisoned for those offences Mr Dittmer began the assessment process at the Kia Marama Sex Offenders Treatment Unit but was suspended from the programme because of inappropriate behaviour. Mr Dittmer admitted to Dr Miller that he had made sexual advances to other inmates. As a result he was not able to complete the programme but was subsequently treated by Mr Tie in one to one psychotherapy sessions for some two and a half years.
[70] Mr Dittmer has also received medication in the form of libido lowering drugs but, despite a comparatively high dose, Mr Dittmer admitted to Dr Miller that he was still able to function sexually, although at a diminished level and with continued sexual fantasies. Dr Miller states that such abnormal erotic interests are predictive of reoffending.

Time elapsed since previous offending and steps taken to avoid reoffending

[71] It is true that Mr Dittmer has not been resistant to most of the rehabilitation attempts but it is significant that the current offences took place only some 7 months after Mr Dittmer’s release from prison (and that was after having been ordered to serve all but three months of that sentence). Cooperation with rehabilitation attempts is of limited significance without results.

Acceptance of responsibility

[72] Mr Dittmer has in the past freely admitted his offending (and indeed in the case of the offending against the 6 year old boy this appears to have been self-reported). It is of concern, however, that he continues to deny responsibility for the current offending.

Predilection for future offences

[73] Mr Dittmer’s pre-sentence report states that his supervising parole officer predicted that, when the support put in place after his release from prison was no longer available, Mr Dittmer was likely to reoffend. This of course turned out to be the case.
[74] Mr Dittmer himself said to Dr Miller that he was at moderate risk of reoffending and Dr Miller’s report refers to the fact that psychiatric staff involved in Mr Dittmer’s recent treatment put him at high risk of reoffending. Dr Miller’s own opinion was also that there was a high risk of reoffending. His conclusion was as follows:

Regretfully, I must conclude that the evolution of Mr Dittmer’s sexual offending, its nature and extent, lack of response to intensive treatment and his own admission lead me to conclude that Mr Dittmer is at high risk of reoffending.

[75] Mr Ellis criticised Dr Miller’s conclusion as not referring to the risk of Mr Dittmer committing specified offences in the future as it just refers to reoffending in general. From the context we consider it is clear that Dr Miller was referring to a high risk of Mr Dittmer committing a specified offence. We note in any event that the Court was not required to come to a view that there is a substantial risk of Mr Dittmer committing a specified offence as he qualified for preventive detention under both s75(1)(a) and (b).
[76] On the basis of the material before the Court (and especially the fact that the current offending took place such a short time after Mr Dittmer’s release from prison), Mr Dittmer’s own assessment and the opinions of the experts we can only conclude that Mr Dittmer is at high risk of reoffending. We would in any event conclude that there was a substantial risk of Mr Dittmer committing a specified offence upon release.

Prognosis for treatment

[77] Dr Miller did note that Mr Dittmer may now be more accepting of treatment in the Kia Marama Treatment Unit but stated that he could not be confident that this would be successful. For completeness (seeing it is favourable to Mr Dittmer) we note that Mr Tie in his report appeared to be perhaps more optimistic than Dr Miller as to Mr Dittmer’s possible success in that programme.
[78] Given Mr Dittmer’s previous responses to treatment attempts we consider the Court could only proceed on the basis of there being a very poor prognosis for the success of future treatment. It is of particular concern to the Court that Mr Dittmer could not even complete the assessment phase of the Kia Marama programme during his last prison term.

Residual discretion

[79] On the basis of the above considerations we are satisfied that it is expedient for the protection of the public that Mr Dittmer be detained in custody for a substantial period. We now consider whether this purpose could be met by the imposition of a finite period of imprisonment, there being no other factors in this case relevant to the exercise of the residual discretion.
[80] We consider that a finite term of imprisonment (even one elevated to the extent allowable to take into account public protection issues) would not suffice to protect the public. This is primarily because of Mr Dittmer’s previous lack of response to extensive rehabilitation efforts, the poor prognosis for the success of any further treatment and the fact that the current offending took place only some seven months after release from prison (and indeed release after Mr Dittmer was required to serve all but three months of that sentence due to a successful s105 application).
[81] We conclude therefore that a sentence of preventive detention is appropriate.

Result of conviction appeal

[82] For the reasons given above Mr Dittmer’s appeal against conviction is dismissed.

Result of sentence appeal

[83] There were errors in the procedure in the sentencing of Mr Dittmer by the High Court. As a result we have considered afresh whether preventive detention was the appropriate sentence for Mr Dittmer according to the requirements of the law applicable at the time. We have concluded that the sentence of preventive detention is the appropriate sentence, having disregarded the psychologist’s report and having specifically considered the residual discretion.
[84] The appeal against the sentence of preventive detention is accordingly dismissed.


Solicitors
Sladden Cochrane & Co, Wellington for Appellant
Crown Law Office, Wellington for Crown


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