| [1] | This is an
appeal against the sentence of preventive detention with a minimum to be served
of five years, imposed in the High Court
at Wellington on 7 March 2003. |
| [2] | The offence for which the sentence was
imposed is of indecent assault on a 13 year old boy.The appellant, a 52 year
old single man,
replied to an advertisement by the complainant seeking odd jobs.
He arranged for the complainant to come to his house.There the boy
was offered
beer and perhaps cigarettes (which he declined).There was no real discussion
about work but the complainant was invited
to watch a video tape sitting on the
couch in the lounge with the appellant.While sitting there the appellant put
his hand on the
complainant’s genital area but it was brushed away.The
appellant then invited the complainant into his bedroom claiming he
wanted help
with an old injury.The complainant was offered the stimulant amyl nitrate,
which he declined.The complainant then was
induced to massage the
appellant’s back, after which the appellant sought to reciprocate.He
removed the complainant’s
shirt and rubbed his lower back moving down to
the buttock area.When the appellant attempted to remove the
complainant’s trousers
the complainant resisted and eventually managed to
extract himself from the bedroom and leave the
house. |
| [3] | At the time of the offending the
appellant was on parole.He had been released from prison a few months before
after serving a sentence
of 22 months for a similar offence (attempting to
induce a youth to masturbate).He was at the time subject to a condition of his
parole prohibiting him from having any unsupervised access to children under 16
years of age.He was also under treatment by the Department
of Corrections
Psychological Service designed, in part, to assist in developing an
understanding of his offending process and to
devise safety mechanisms to cope
with high risk situations. |
| [4] | The appellant
pleaded guilty at an early stage.When he came for sentence in the District
Court the Judge declined jurisdiction because
he regarded the appellant as a
candidate for the sentence of preventive detention.That was because of his
offending record.He had
seven previous convictions for indecent assault or
similar indecencies involving six victims.His offending had occurred over the
period commencing in 1988. |
| [5] | The appellant
presented a difficult sentencing task for the sentencing Judge.His offending,
although persistent, had not been particularly
serious and had not increased in
seriousness over the years;rather the contrary.His record is that of a
recidivist paedophile and
his response to previous sentences and sex offender
programmes has been poor.He has an acknowledged alcohol addiction which plays
a significant part in his sexual offending as it did in the offence with which
we are immediately concerned. |
| [6] | The
sentencing Judge had before her a letter written by the appellant the day before
sentencing.In that he acknowledged his alcohol
dependency and recognised that
total abstinence would be essential to prevent further offending.He expressed
both remorse and optimism
and indicated the need for continued assistance.Those views, however, stood somewhat in contrast with the pre-sentence report
and
reports from a senior psychologist from the Department of Corrections and a
senior clinical psychologist from Capital and Coast District
Health Board.They
indicate a significant lack of insight by the appellant into his offending, its
seriousness and impact upon his
victims.They indicate also a unanimous view
that the appellant presents a high risk of re-offending.The sentencing Judge
concluded
that the sentence of preventive detention was appropriate to protect
the public from the repeated and predatory nature of the appellant’s
offending. |
| [7] | In support of the appeal, Mr
Nisbet submitted that the sentencing Judge did not give sufficient weight to the
appellant’s early
plea of guilty and his willingness to undertake further
treatment for his offending.He emphasised that the offending appears to have
declined in seriousness over the last decade so that the risk of re-offending
should be assessed together with the degree of seriousness
should that risk be
manifested. |
| [8] | For the Crown Ms Laracy
submitted that the sentence was rightly imposed because of the high risk of
re-offending and the need to protect
young people in the
community. |
| [9] | There is no question that the
appellant is a serious candidate for the sentence of preventive detention under
s87 of the Sentencing
Act 2002.His pattern of offending indicates a paedophile
with a high risk of re-offending, low motivation to address his problems
and in
particular his alcohol dependency and poor responses to previous treatment
efforts. |
| [10] | The treatment provided over the
years has been considerable.In 1994 a report of a psychologist with the
Department of Corrections
indicated assistance to the appellant to develop a
strategy to minimise recurrence of sexual offending.However, following
treatment,
the appellant was assessed as having little regard to the
consequences of his offending on victims and limited control over both
his
offence related thinking and actual offending.He was referred to the STOP
Programme but attended only two
sessions. |
| [11] | In the year 2000 a pre-sentence
report indicates that the appellant had again commenced the STOP Programme in
November 1999.He made
minimal progress however, because he continued to deny
and minimise his offending and alcohol abuse.Eventually he re-offended but
was
permitted to stay on the programme subject to addressing his alcohol abuse and
showing improvement in his group work.He did subsequently
show some improved
motivation, but eventually his alcohol problem led to him being suspended from
the programme. |
| [12] | The appellant completed the
treatment programme at the Kia Marama Special Treatment Unit in October 2001.A
psychological report prepared
by the treatment centre outlined that he made
minimal progress in treatment.At the end of the treatment he was assessed as a
high
risk of further sexual offending against
children. |
| [13] | As previously indicated, at the
time of the present offending the appellant was under treatment by the
Department of Corrections Psychological
Service and, according to its senior
psychologist, he is assessed as not currently suitable for further
rehabilitative interventions
while he continues to diminish responsibility for
and minimise his offending.Any future provision of treatment will require a
significantly
greater acceptance of responsibility.In addition, the predatory
and intentional nature of his grooming behaviour, the sexual arousal
he
experiences during offending and his denial of responsibility all suggest he is
unlikely to be able to modify his behaviour of
his own
volition. |
| [14] | The provisions of the Sentencing
Act 2002 relating to the sentence of preventive detention (ss87-90) were
reviewed in the judgment
of this Court in R v C [2003] 1 NZLR 30.It was
there pointed out (para 25) that no credit for a plea of guilty can be given
within a sentence of preventive
detention save in respect of the minimum
sentence to be served.That, in any event, cannot be less than the five years
imposed in
this case. |
| [15] | In this case the
issue of concern is whether the sentence of preventive detention is
disproportionately harsh in light of the particular
offending in which the
appellant has engaged.We asked Ms Laracy, whose submissions were of
assistance, whether there have been cases
in which the sentence has been imposed
for recidivist offending at such a comparatively low level.We were referred to
R v K (CA57/00, judgment 30 March 2000, in which that sentence was upheld
on appeal where the particular offence was one of indecent assault
to which the
offender had pleaded guilty at an early stage.The offence was of touching the
vagina and bottom of a young girl of 4
– 5 years entrusted to him.He was
in her bed and subsequently masturbated.His list of previous convictions was
lengthy and
included indecent assault on a female between 12 and 16 years for
which he had been sentenced to imprisonment for five years.The
case for
preventive detention plainly was stronger in that case than in the present
case. |
| [16] | On the other hand in both R v
Burkett CA416/00, judgment 21 February 2001, and R v T CA125/02,
judgment 19 July 2002, this Court allowed appeals against sentences of
preventive detention and substituted finite sentences
in circumstances similar
to this in the present case.In Burkett we said (para
22) |
We hasten to add that should we be of the view on
assessment of the overall picture that protection of the public demanded such a
response we would not be deterred solely by the relative lack of seriousness of
the most recent offending.However, when addressing
the protection of the
public it is appropriate to bear in mind what it is that there is concern to
protect from.Where it is from
potential serious offending of a violent or
invasive kind, there must be greater reluctance to risk alternative sentencing
approaches.In
the present case the type of offending of which there is real
risk of recidivism is not in that category.It is to be noted that in
the 22
years since the offending began it has not progressed to more serious conduct,
nor is there indication of any tendency towards
violence.The psychiatric
opinion is that the risk of violence is low.
The purpose of the indeterminate sentence of
preventive detention is not punitive but is rather to protect the community.Its availability
as a sentencing option reflects society’s need to protect
itself against recidivist sexual violent offenders.Nevertheless the
punitive
effect of the sentence requires a careful examination by the Court of the
seriousness of the offending against which preventive
detention will provide
protection, as a factor relevant to public safety and therefore the exercise of
the sentencing discretion.
...
While his proclivities have therefore not resulted to date in paedophiliac
offending of the most serious kind, it is certainly of
a nature that is
damaging, frightening, disturbing and acutely embarrassing to his victims as the
complainant’s victim impact
statement in this case makes plain.Accepting
all this, it is nevertheless the case that preventive detention would be very
punitive
indeed for the offending for which the appellant is to be
sentenced.
(b) ... the seriousness of the harm to the
community caused by the offending;and
| [19] | Ms Laracy invited us to consider
whether there should be a greater willingness to impose the sentence now that
the minimum period
before eligibility for parole is five years rather than ten
years as it was under the Criminal Justice Act 1985.We would not discount
that
as a relevant consideration, but it should be seen as providing greater
flexibility in sentence administration rather than ground
for a reduction in the
level of seriousness of the offending as justifying preventive detention.So
regarded it would be difficult
to reconcile with the express considerations in
s87(4) and in particular the principle that a lengthy determinate sentence is
preferable
if that provides adequate protection for society.The real issue is
whether in all the circumstances the offender should receive the
indeterminate
sentence, not what minimum term should be served before parole.That comes at a
subsequent stage. |
| [20] | The nature of the
offending of this appellant cannot be characterised as trivial.But neither is
it high on the scale of seriousness.His
two most recent offences seem to have
consisted in overtures to young men desisted from when rejected.Prior to that
his offences
in 1993 and 1995 involved indecent assaults on male victims over
sixteen.Their seriousness is indicated by the sentences respectively
of six
months periodic detention and six months imprisonment.While offensive,
embarrassing and even frightening to victims, the pattern
of offending over this
ten year period has not been violent or of an increasing seriousness.It
reflects apparent sexual gratification,
when disinhibited by alcohol, from low
level offending from which he seems to be and was readily deterred.Offending
at that level
does not warrant the indeterminate sentence of preventive
detention without first there having been a lengthy finite sentence as,
in
effect, a final warning and chance to address underlying
problems. |
| [21] | Accordingly, while we recognise
the high risk of re-offending, we think this offence, in the context of the
history of offending,
should be met with a finite sentence.That must be longer
than would be a usual response to this level of offending to take account
of the
need to protect the community.On that basis we do not consider it likely to
distort sentencing levels for this type of
offending. |
| [22] | Accordingly, we allow the
appeal, quash the sentence of preventive detention and substitute a sentence of
imprisonment for five years. |
| [23] | It is
necessary also to consider whether there should be imposed a minimum period to
be served under the s86 of the Sentencing Act.That
requires first
consideration of whether the circumstances of the offence were sufficiently
serious to justify a minimum sentence
to be served greater than the one third
otherwise applicable.We have no doubt that they were, and Mr Nisbet did not
disagree.This
indecent assault involved the aggravating factors of the age of
the victim, the predatory conduct including the planning and having
the boy
visit a private home and the offering of disinhibiting substances.We note too
the disturbing effect the offending had on
the complainant and his family.The
circumstances involved also offending while on parole and in breach of an
express condition of
that parole. |
| [24] | Turning
to the length of the minimum period, it is appropriate to take account of the
guilty plea, but also the need for protection
of the community and for the
appellant to address both his alcohol dependency and his proclivity to offend
against adolescent males.We
are of the view that the appropriate minimum
period is three years, and we so
order. |
