The Queen v Churches [2002] NZCA 78; (2002) 19 CRNZ 485 (24 April 2002)

Last Updated: 16 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 316/01

THE QUEEN

V

GLENN ANDREW CHURCHES

Hearing:	24 April 2002
Coram:	Anderson J Salmon J Paterson J
Appearances:	R A Harrison QC for Appellant S J Gray for Crown
Judgment:	24 April 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the appeal

[1] Mr Churches appeals against a sentence of preventive detention imposed by the High Court after he pleaded guilty in the District Court to three counts of sexual offences against a seven year old girl. There was a count of sexual violation by digital penetration, a representative count of attempted sexual violation by rape and a representative count of indecent assault.
[2] The appellant had previously been convicted of specified offences within the meaning of s75(4)(b) of the Criminal Justice Act 1975, and was accordingly liable to a sentence of preventive detention by virtue of s75(1)(b) of that Act in addition to his liability under s75(1)(a) by reason of his conviction for sexual violation of the victim in the present case. The earlier convictions related to sexual violation of boys in 1987 and in 1991, resulting in cumulative terms of imprisonment amounting to seven years nine months being imposed in 1992. The present offences, having occurred between 1997 and 2001, were thus perpetrated during the period of and shortly after parole in respect of the earlier sentences.
[3] The grounds of the appeal, as stated in the Notice of Appeal, are that the sentence was manifestly excessive and/or wrong in principle.

Circumstances of the offending

[4] Between 4 August 1997 and 1 January 2001, the appellant regularly visited the victim’s home where she lived with her mother. The victim was then six years old. The appellant gained the trust of the parent to the extent that he was permitted to baby-sit the girl and her younger sister. The mother was unaware of his previous offences. Left alone with the girls, the appellant would put the younger one to bed, and in the lounge would massage the victim’s naked body with a lotion, often rubbing around her genitalia and her chest. He inserted his fingers into her vagina and on many occasions attempted unsuccessfully to rape her. When the mother learned about the previous convictions she prohibited unsupervised contact, but the appellant contrived successfully to abuse the child even when her mother was in another part of the house. Over a period of time he took a number of explicit lewd photographs of the child. When spoken to by the Police he admitted taking photographs and rubbing his exposed erect penis up the back of the victim’s legs towards her buttocks. As previously mentioned, he pleaded guilty in the District Court and did so within two weeks of his arrest. The District Court declined jurisdiction pursuant to s75(3) of the Criminal Justice Act and the appellant was accordingly committed for sentence in the High Court.
[5] The child’s mother is understandably angry and disgusted with the appellant whom she had regarded as a trusted friend and who breached that trust in such a disgraceful way. In a victim impact statement she described how the child had become difficult to control, suffering in her schooling and defiant to her teachers and her mother, lapsing into reclusiveness. Such reactions are no less tragic for their frequency in these cases. The child herself has said that she does not feel like going to school, feels depressed and has a lot of anger inside her which stops her concentrating. Again, experience shows that the emotional injury caused by such offences is unlikely ever to heal completely.

Appellant’s background

[6] The appellant is now 38 years old. He advised the Probation Service that when he was eleven he was sexually abused over a period of about two years by a “trainee priest”, causing him to become withdrawn and to have difficulty in relationships with adult women. He candidly indicated to the Probation Officer sexual preferences for adult women and male children, and that he was surprised that he had offended against a female child when he always thought his preference was for boys.
[7] During his previous term of imprisonment the appellant had participated extremely well in the Te Piriti Programme and upon release had been considered a medium to low risk of reoffending. While on parole he had reported regularly and complied with all post-release obligations.
[8] Assessment by the Department of Corrections for the purpose of the pre-sentence report indicated a high risk of reoffending having regard to his having offended whilst on parole when he was under the supervision of the departmental service, and would have had ample opportunity to seek help before reoffending began. He did not do so.

Psychiatric assessments

[9] The District Court had made an order pursuant to s121(2)(b)(i) of the Criminal Justice Act for the committal of the appellant to Mount Eden Penal Institution for the purposes of a psychiatric assessment and report pursuant to s75 of the Criminal Justice Act. An assessment and report was carried out by Regional Forensic Psychiatry Services of Waitemata District Health Board. The psychiatrist reported on various contextual matters as well as responses by the appellant to conventional lines of examination. The summary of the psychiatric report was that the appellant is a paedophile. In spite of participating in a treatment programme for sexual offenders at Te Piriti for almost a year, with a year of follow-up meetings, he volunteered to baby-sit the victim when he was aware from that programme that he should not be alone with children. He then offended on many occasions. He considered he had no family support. Although he expressed remorse, this was with limited emotions and was to be considered in light of the psychiatrist’s opinion that, “The degree of remorse has not been proven to correlate with risk of future reoffending”. The report noted violence and threats as a negative risk factor, as well as the commission of a number of sexual crimes towards several children. The present offending against a female, when the appellant professed a preference for male children, was noted. The psychiatrist was not prepared to make a psychiatric prediction of the risk of future offending. Psychiatric reports obtained for the purposes of s75 of the Criminal Justice Act sometimes disclose a diffidence by psychiatrists to make prognostications of risk on a hypothetical basis in the relatively distant future that a sentence of preventive detention involves. The tension between features of the discipline of medicine and the terms of s75 of the Criminal Justice Act are commonly resolved by forensic experience.
[10] For the assistance of this Court, counsel obtained a psychiatric report from Dr R Tapsell, a specialist general and forensic psychiatrist. Dr Tapsell was of the opinion that the appellant had a vulnerable personality with significant narcissistic and dependent personality traits. On the matter of risk prediction, Dr Tapsell also expressed reservations about the ability of psychiatry to make predictions as to the risk of recidivism at some distant future time. Research indicated some ability to make predictions about recidivism in the short term, although even then there were limitations in terms of validity and reliability. However, according to the literature, the appellant presented a demographic profile consistent with that population of men who have a high risk of sexual recidivism against children. In terms of the risk factors indicated by this Court, for the purposes of s75(2) of the Criminal Justice Act 1985 in R v Leitch [1998] 1 NZLR 420, Dr Tapsell could confidently say that he believed the appellant to present a significant risk of recidivism were he to be released today.
[11] Dr Tapsell also examined the question of what treatments or therapeutic interventions might be undertaken to reduce that risk, and concluded that given the nature of the present risk it could not be provided for in a community setting without essentially continual supervision and significant restriction of movement.

Reasons for sentence

[12] The Judge noted that the appellant was liable for preventive detention by virtue of both s75(1)(a) and 75(1)(b) of the Criminal Justice Act, and identified the principle of expediency for protection of the public that the appellant should be detained in custody for a substantial period. He examined the nature of the offending, including its occurrence over almost a three-year period, and the representative aspect of the counts. The nature of the offending, including the taking of the photographs, indicated a depth of depravity.
[13] The Judge noted that in the previous term of imprisonment there had been participation in the Te Piriti Programme, and follow-up meetings and reportings while on parole. He considered that the appellant did very little to avoid reoffending, noted the appellant’s acceptance that he was a paedophile and that the pre-sentence report assessed a high risk of reoffending.
[14] The Judge cited the elucidation of principle appearing in R v Leitch, supra, at p6:

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”.

[15] He posited the question identified by this Court in R v Scobie CA 186/01, 30 July 2001, whether a finite sentence can achieve the protective purpose of preventive detention. He concluded that a finite sentence should not be imposed. He was satisfied that it was expedient for the protection of the public that the appellant be sentenced to preventive detention, being satisfied having regard to all the material before him that there was a substantial risk upon release that he would commit one of the specified offences in the Act.

Submissions for appellant on appeal

[16] Counsel for the appellant noted the principles, elucidated in R v Leitch, supra, including the Court’s discretion whether or not to pass a sentence of preventive detention upon a person whose offence history renders him or her liable. 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, but the statutory test is not to be burdened by a notion of last resort. It is also open to a Court to consider, in circumstances where a finite sentence arrived at in accordance with normal principles would not be adequate for the protection of the public, the imposition of a finite term which would be less severe in its effect on the offender than preventive detention, but which at the same time would be of greater severity than a sentence related only to the usual balancing of the desirability of prevention against the gravity of the offending. Leitch recognised that in such circumstances it may be permissible to go beyond what would otherwise be the upper level of a sentencing range, but that room to do so must be limited in order to maintain the integrity of general sentencing principles.
[17] In the present case counsel acknowledged, realistically, that the appellant’s circumstances justified preventive detention both in terms of the jurisdiction to impose such a sentence and the indications for it. He submitted, nevertheless, that a lengthy finite sentence could meet the concerns for public safety, particularly since a greater finite sentence could be considered than one which would ordinarily be imposed on more commonly occurring sentencing principles. He submitted that a sentence of 12 years imprisonment in lieu of preventive detention would, in effect, be permissible.
[18] That approach was developed by counsel with reference to the significance of the early acknowledgement of fault and guilty pleas. He informed the Court that after arrest and leading up to pre-depositions, discussions were held with the Police with a view to a sexual violation charge being amended to sexual violation by digital penetration. The charge originally laid in that respect was sexual violation by rape. Upon the prosecution accepting that such an amendment was appropriate, guilty pleas were entered at the earliest opportunity.
[19] Counsel rightly points out that co-operation with the Police and an early plea of guilty have ordinarily entitled an offender to a substantial reduction in terms of the sentence imposed. The reasons for this sentencing approach have been adverted to by the Courts on many occasions. They include, of course, the saving to the community of the time, cost and inconvenience of a trial. But significantly, they include a humane consideration for the victims of offending who, by being relieved of the burden of giving evidence in a criminal trial which may not take place for some time after arrest, are spared the retraumatising experience and anguish involved. That consideration is particularly important in cases of violent and sexual offences.
[20] Counsel submitted that a sentence of preventive detention does not reflect any credit for co-operation with Police and early pleas of guilty. In a case such as the present, a sentencing Court is faced with two public interest considerations which are difficult to reconcile. The first is the protection of the public justifying and inherent in a sentence of preventive detention. The second is the encouragement by real discounts of co-operation by offenders and early guilty pleas.
[21] Whilst acknowledging that there will be cases where the gross nature of an accused’s list of previous convictions is such that even an early guilty plea would not save that person from preventive detention, counsel submits that the present appellant is not in that category.
[22] Counsel submitted that the appellant stopped when asked to by the complainant, and that the lack of violence involved in the offending was a factor to take into account. He noted that the appellant had indicated a desire to go through another programme of treatment for sexual offenders, and concluded that a finite term of imprisonment could meet the concerns of public safety whilst at the same time acknowledging the early plea of guilty and the co-operation with the Police.

Submissions for the respondent

[23] Having regard to those factors, mentioned in R v Leitch, supra at pp428-429, which may inform the question whether a sentence of preventive detention ought be imposed, counsel emphasised the nature of the offending, involving as it did, a range of significant sexual offences; its gravity and time span, having occurred over approximately three years; being repetitive, in breach of trust, and aggravated by the taking of photographs. The present victim was aged seven when the offences began, and the appellant’s victims in the earlier cases for which he was imprisoned were three boys aged between nine and eleven whom he had subjected to forced anal intercourse. The physical and emotional impact on the victim and her mother are severe. In relation to previous rehabilitation the appellant had failed. The time he had been out of prison for previous offending was very short and the offending began when he was still on parole. He could have sought help whilst on parole, but did not do so, and thereby evaded steps which may have prevented reoffending. Expressions of remorse were limited and his temperament indicated a proclivity for offending.
[24] In summary, counsel submitted that notwithstanding the guilty plea the sentence of preventive detention was justified in the interests of the protection of the public.

Discussion

[25] Mr Harrison’s submissions acutely recognise the best argument that can be advanced on behalf of the appellant. But for the early acknowledgement of fault and guilty pleas, little could be said in mitigation of the offending. The alacrity with which a paedophile, released on parole from a sentence of more than seven and-a-half years imprisonment for sexually violating a number of children, pursued and violated yet another infant, raises matters of grave concern for public safety irrespective of the scope for severe condemnation. While the latter may be mitigated by the ready acceptance of fault, the concerns for public safety are not.
[26] The sentence of preventive detention is punitive in effect but not in purpose. Considerations which may bear on the issue of punishment do not necessarily bear on issues of public protection.
[27] The Act must be taken to bestow a judicial discretion because it recognises that it may be expedient for the protection of the public to detain an offender in custody for a substantial period without recourse to the indefinite sentence. Thus a sexual or other relevantly violent offender may be considered not to represent such a significant future risk as to warrant a sentence involving life-time amenability to monitoring and recall.
[28] What should be done with a dangerous offender eligible for preventive detention is often crucially a matter of judgment for the sentencing Judge. The burden imposed on an appellant from the exercise of a discretion is to demonstrate that it was wrong. Counsel sought to do so by, in effect, submitting that the sentence failed adequately to take into account the guilty pleas in a case where, he must submit, they could properly have been taken into account so as to indicate a lengthy finite rather than an indefinite sentence.
[29] Whilst recognising the cogency of the policy considerations for credit at sentencing for early guilty pleas in, particularly, cases involving sexual and other serious violence to victims, we think that where the issue involves preventive detention there must be a more substantial and compelling link to the issue of the protection of the public than exists in the present case. But for the guilty pleas, the sentence of preventive detention was amply justified. The appellant has been a proved menace on several occasions in the past and represents a substantial risk in the future. That risk is too significant to contemplate a lengthy finite sentence and is not ameliorated by the early pleas of guilty. The credit for those pleas will no doubt be brought into account when questions of parole arise and then they will be given their due weight. But they are insufficient to carry this appeal.
[30] For the above reasons the appeal against sentence is dismissed.

Solicitors
Crown Solicitors, Auckland