R V NEIL FRANCIS CLARK [2003] NZCA 84 (29 May 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA343/02

THE QUEEN

v

NEIL FRANCIS CLARK

Hearing: 26 May 2003

Coram: McGrath J

Panckhurst J

Doogue J

Appearances: R G Glover for the Appellant

M N Zarifeh for the Crown

Judgment: 29 May 2003

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1]

The appellant pleaded guilty to two charges of burglary in the District Court.He was sentenced to eight years imprisonment with a minimum non-parole period of two thirds of that sentence.The offending of the appellant was part of a long established pattern of breaking into unoccupied houses and, while on the premises, using clothing and other personal items of the occupiers for the purposes of cross-dressing and masturbation.He appeals against both the terms of imprisonment and the minimum non-parole period imposed.

Background circumstances

[2]	The appellant is 42 years of age.He was first convicted of burglary when he was aged 14½ years.Over the years since he has made over 40 court appearances in relation to some 60 burglary offences, apparently having the same hallmarks as his present offending.
[3]	The pattern in the appellant’s offending is that he enters houses where women reside at times when they are not present.He remains for some time gathering clothing and personal items of the occupiers and using them to satisfy his urges.Although the appellant had often stolen property his offending is primarily motivated by sexual gratification.
[4]	The two offences for which he was sentenced by the District Court in the present instance are typical.On 16 July 2002 he broke into a flat in Christchurch remaining long enough to go through all of the female victim’s personal effects.He spent most of his time in her bedroom using the items that he had acquired to masturbate.He also left cigarette remains where they would readily be observed by the victim on her return home.When he eventually left the flat he took with him several items of her makeup, jewellery, underwear and clothing having a total value of approximately $300.
[5]	The appellant was on parole at the time of this offending from a sentence of one year nine months imprisonment imposed following conviction for committing an indecent act with intent to insult a male.He had been earlier granted and completed a period of home detention in respect of that sentence.On a previous occasion he had been sentenced in October 1997 to five years imprisonment on ten charges of burglary having the same features as the present offending arising from events which had occurred between May and September 1997.
[6]	The second offence for which he was sentenced took place on 1 August 2002 when the appellant broke into a family home in Blenheim.The appellant again remained in the house for a lengthy period searching through the personal effects ofthe second female victim.He used underwear belonging to her in the course of masturbation.As on the previous occasion he left cigarettes in obvious places, including the bedroom of the family’s infant daughter.He also left a disposable nappy between the sheets of the victim’s bed which he had occupied.When he left the victim’s home he took with him items of clothing and other small items and cash to a value of approximately $500.He surrendered himself to the police on 5 August 2002, admitted the offending, and entered early pleas of guilty to the charges of burglary brought against him.

Sentence in the District Court

[7]	The District Court Judge believed that the most significant factor in sentencing the appellant was the devastating effect which the burglaries had had on his victims.In light of his past record the probability of those effects would, in the Judge’s view, have been known to the appellant at the time of his offending.The Judge referred to victim impact reports which indicated that one of the victims had considered it necessary to move out of her house while the other had spent countless hours cleaning, in both cases because of the psychological impact of what the appellant had done in their home.As well, the persistent nature of the appellant’s offending, coupled with the reports of departmental psychologists, who took the view that little or nothing could be done to assist the appellant from continuing to offend in this way, meant that the appellant remained at high risk of continual re-offending.
[8]	The Judge took the view that the appellant was sufficiently intelligent to know that he should resist his impulses especially as he was aware of the havoc he was causing.Her Honour agreed with an observation by the reporting probation officer that the appellant’s habit of blaming others for his predicament had not assisted those treating him. The Judge did not accept that he had an untreatable illness.While he obviously had desires to act in the way he did, in the Judge’s view the appellant also had the ability and willpower to refrain, but would not.The Judge was unimpressed by the fact that the offending occurred while the appellant was on parole.
[9]	In His Honour’s view a penalty near to the maximum of 10 years imprisonment had to be imposed because, when considered in the context of past offending, this case was near to the most serious of burglaries.After taking into account the appellant’s plea of guilty he decided the appropriate sentence in respect of each burglary was eight years imprisonment.He also took the view that the serious nature of the offence justified a minimum term of imprisonment.He ordered the appellant to serve a minimum period of two thirds of the full term of the sentence which was the maximum non-parole period that it was open to impose.

Submissions on appeal

[10]	Mr Glover for the appellant submitted that in view ofhis psychological and psychiatric problems the sentence of 8 years imprisonment, coupled with a minimum parole period of 5 years 4 months, was manifestly excessive.He criticised the Judge for failing to set a specific starting point and allow a precise discount for the guilty pleas.If, as counsel suggested, the Judge had taken a starting point of 10 years imprisonment, the maximum, that was manifestly excessive and the discount of 2 years was inadequate.
[11]	Mr Glover argued that the sentence failed to give recognition to the sentencing purpose of rehabilitation and re-integration to the community under s7 of the Sentencing Act 2002.Despite the appellant’s psychological and psychiatric background that factor had not been taken into account.The Judge had also only highlighted negative aspects in the psychologists’ reports.These reflected the entrenched view of the services within the Department of Corrections that the appellant was the author of his own fate.Mr Glover referred to reports that had been obtained on a previous sentencing occasion from Mr Unger suggesting that progress could be made if the appellant were treated by an expert in sexual disorders.He accepted that the sentence had to be one which gave society some security against further offending by the appellant but, he said, at the same time it should allow a search for appropriate treatment for his condition be made.
[12]	The imposition of the minimum parole period was an additional punitive element on a very severe sentence.It limited the prospect of the appellant’s release into a therapeutic environment and carried with it the possibility of enhancing the risk of eventual future re-offending.

Crown submissions

[13]

Mr Zarifeh for the Crown accepted that the Judge had started at the maximum available sentence term of 10 years and deducted two years for the guilty plea.He submitted that a sentence of 8 years imprisonment was not manifestly excessive. Mr Zarifeh argued that the Judge had given consideration to the rehabilitation of the appellant, but had decided that previous sentences aimed at assisting his rehabilitation had failed.Despite the substantial and extensive intervention over the years of services, in particular psychological counselling, the appellant had not addressed his problems and the point had now been reached where considerations of deterrence and public protection had to be given greater recognition.Mr Zarifeh said that the indications were that the appellant’s own motivation to change his habits was clearly low.

[14]

The Crown submission on the starting point was that it was open to the Judge to impose a sentence close to the maximum available in view of the history of previous similar offending and because the offending occurred while the appellant was on parole in this case.Having started at that point a discount of 2 years for the guilty pleas was not out of line with general practice.Mr Zarifeh also submitted that the minimum term of imprisonment was justified in view of the past history and correct in principle.

Decision

[15]	We are satisfied that it was clearly open to the Judge to sentence the appellant on the basis that his prospects of rehabilitation are very slim.There has been a major effort by the psychological services of the Department of Corrections to assist the appellant who is a man of intelligence and who must have insight into the serious harm his offending has caused others.It is of particular concern that the appellant has ignored restrictions imposed to protect the public and to assist him in coping with his impulses such as those imposed on where he was to reside when on parole. However Mr Unger, the consultant psychologist who had previously reported for the defence in April 2000, then saw some hope of rehabilitation if a different approach by a psychotherapist with expertise in sexual disorders were applied.We hope the Department of Corrections will not lose sight of that possibility.The Court cannot however second guess the judgments made by the Department in this area.What is apparent is that the considerable efforts made to rehabilitate the offender to date have been singularly unsuccessful.
[16]	In those circumstances we consider it was entirely appropriate for the Judge to focus on prevention of offending and public protection in deciding the term of the appropriate sentence.In determining the starting point the Judge referred to the principle stated by this Court in R v Ward [1976] 1 NZLR 588, 590, that the sentence passed should bear a relationship to the intrinsic nature of the offence and the gravity of the crime.The Court there added that it is necessary however to take previous convictions into consideration as they reflect on the character of the offender. Where they also indicate a predilection to commit a particular type of offence it was the duty of the Court to protect the public by lengthening the period of confinement for the purposes of public protection.
[17]	As indicated, the Judge’s starting point was the maximum term of 10 years imprisonment for a burglary offence.Had this appellant’s offending been motivated by dishonesty he would have been categorised as a “spree” burglar who usually receive sentences more in the range of 4 years: Senior v Police (2000) 18 CRNZ 430.Even though feelings of violation of the privacy of a victim’s home are inherent in every burglary we agree with the Judge that the appellant’s type of offending is more serious than general crimes of burglary, in view of its very serious impact on the victims.In the present instance the Victim Impact Reports record their feelings of disgust, violation, fear of repetition and rage.
[18]	The conclusion we have reached, having considered those aspects, is that the starting point should have been nine years imprisonment.After making the same allowance as the Judge for the guilty pleas the fixed term element of the sentence should have been seven years imprisonment.That is sufficient to denounce the appellant’s offending and to protect society from him for an appropriate time.
[19]	Where we substantially differ from the Judge is in relation to the minimum parole period that he imposed.Despite his continual failures to benefit in a lasting way from the many rehabilitative opportunities offered him over the years the appellant is an intelligent man who may still be capable of developing and maintaining the degree of positive motivation that would allow him to live a normal life in the community.This leaves some hope for his future rehabilitation.We take the view that release after serving the statutory minimum portion of a sentence of 7 years imprisonment would be a sufficient response to this offending.Thereafter further detention should be concerned with protection against the on-going risk.
[20]	The Parole Board is of course required not to release an offender during the period of its discretionary jurisdiction if he or she is assessed as being a danger to the community, which the appellant is at present.We take the view that the question of parole should be left in the discretion of the Board recognising that the decision on whether and if so when to release the appellant into the community in advance of his statutory entitlement to be released will not be an easy one to make.Much will depend on how the appellant responds to the opportunity he will have during his imprisonment to accept responsibility for and show he can effectively address his situation, rather than continuing to blame others and his physchological condition for his plight.
[21]	For these reasons the appeal against sentence is allowed.The sentence of 8 years imprisonment is vacated and a term of 7 years imprisonment substituted.The minimum non-parole period of two thirds of the sentence set by the District Court is set aside.

Solicitors:

Crown Solicitor, Christchurch