R v Hutchison [2007] NZCA 55 (8 March 2007)

Last Updated: 8 February 2014

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA258/06 [2007] NZCA 55

THE QUEEN

v

JARRED JAMES HUTCHISON

Hearing: 12 February 2007

Court: Arnold, Panckhurst and Priestley JJ Counsel: A Markham for Crown

F P Hogan for Respondent

Judgment: 8 March 2007 at 3 pm

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted, and the appeal is allowed.

2. The sentences of 13½ and 10 years imprisonment for sexual violation are quashed and preventive detention is substituted. The ordered minimum

_{period of imprisonment, seven and a half years, remains.}

REASONS OF THE COURT

_{(Given by Panckhurst J)}

R V HUTCHISON CA CA258/06 8 March 2007

An indeterminate or a finite sentence?

[1] The Solicitor-General seeks the substitution of a sentence of preventive detention in lieu of a finite term of 13½ years with a minimum period of imprisonment of seven and a half years. Such sentence was imposed in relation to the repeated rape and violation of a child over a five year period, when she was three to eight years of age. The respondent is aged 34 years. He is eligible for the sentence of preventive detention.

[2] However, the sentencing Judge, Cooper J, concluded that given the absence of previous like offending and the circumstance that Mr Hutchison had never received treatment for the causes of his offending, a lengthy determinate sentence was to be preferred, as opposed to a sentence of preventive detention.

[3] The essence of the argument in support of the Solicitor-General’s appeal is that the issues of future risk following release, and whether a determinate sentence would provide adequate protection for society, were not sufficiently confronted at sentencing. Counsel for the Solicitor-General argued that upon an appropriate focus on these issues substitution of the indeterminate sentence in lieu of a finite term was required.

The offending

[4] The nature of the offending was awful. The respondent pleaded guilty to

24 counts of sexual violation by rape, 51 counts of sexual violation by unlawful sexual connection and 16 charges that he knowingly made objectionable publications contrary to the Films Videos and Publications Act 1993.

[5] Between 1998 and 2005 he was in a de facto relationship with the mother of the child victim. The mother went out to work. The complainant was left in the respondent’s care. Over the relevant period she was repeatedly raped and sodomised. She was also forced to perform oral sex on the respondent. These acts commonly occurred after the complainant had been undressed, blindfolded and her hands tied together.

[6] In June 2005 the complainant disclosed the abuse to her father. However, the actual scale and extent of the offending was only revealed when the police seized a collection of video tapes. These contained hours of graphic footage recording the acts to which the complainant had been subjected. In some scenes the respondent could be heard giving directions to the complainant as he filmed her. Almost all the scenes ended with close-up shots of the complainant’s face and mouth after the respondent had ejaculated on her.

[7] Interspersed in the video footage were hundreds of indecent still images of young girls obtained from the internet. There was also footage of young girls playing or walking on suburban streets in the immediate neighbourhood. A search of the respondent’s computer confirmed it had been used to access child pornography sites, as did the existence of three folders containing a collection of photographs of nude children. This material was consistent with that included in the video footage.

[8] Inevitably the impact of the offending upon the complainant was profound. Victim impact statements from both the complainant’s mother and father confirmed the anguish which the complainant herself had been caused, and also the extent to which the respondent’s offending had fractured relationships within the family.

The sentencing decision

[9] Mr Hutchison pleaded guilty to the charges at an early stage in the

District Court. He appeared in the High Court for sentence on 27 June 2006.

[10] After reference to the nature and impact of the offending, Cooper J referred to several matters pertaining to the respondent’s background. He had a number of previous convictions for offences committed over a 16 year period. These included driving, dishonesty and offences involving minor violence. In 1992 the respondent was sentenced to imprisonment for careless driving causing death arising from an accident in which his fiancée died and he sustained a significant head injury. However, he had no previous convictions for offending of a sexual nature.

[11] The Judge referred to the respondent’s work history, his consumption of alcohol and drugs to excess (including a methamphetamine habit which existed during part of the period of the relevant offending), the reports of the health professionals obtaining pursuant to s 88 of the Sentencing Act 2002 and to the submissions of counsel for and against the imposition of an indeterminate sentence.

[12] His decision continued:

[22] For a number of reasons I am inclined to the view that a sentence of preventive detention ought not to be imposed in this case. Reaching that conclusion, I have as I have said, not been able to give much weight to any factor of remorse or insight into your offending or the expressed desire to rehabilitate yourself. The reports that I have read indicate, rather, that you as yet fail to appreciate the significance of the harm that you have done to the young complainant. Nevertheless, in considering the issue of preventive detention, I think it is significant that you have no previous record of offending of this nature, that you have not in the past (and perhaps this is because you have not acknowledged the need), been treated for your paedophilia and voyeurism and treatment and programmes may be available to you in prison, which are factors which tend against a sentence of preventive detention.

[23] I am also influenced by observations made in both the psychiatrist’s and psychologist’s reports, that it is difficult to predict at this point that you would re-offend after a lengthy period of imprisonment and the opportunity that might be afforded to you in prison to undergo suitable treatment courses. Given what both the health professionals say about the difficulty of predicting what might happen when you are released, and having regard to the possibility that at the end of a long finite term an order might be made for extended supervision, I have concluded that preventive detention should not be imposed in all the circumstances.

[13] The Judge’s attention then turned to the appropriate finite term. Principally influenced by the decision of this Court in R v Kolio CA 219/01, 1 November 2001 a starting-point of 17 years imprisonment was adopted. From this a reduction of three and a half years was made in recognition of the guilty pleas which were entered “at the earliest opportunity”. A sentence of 13½ years resulted. This term was imposed in relation to the 24 offences of rape. The 51 charges of unlawful sexual connection attracted sentences of 10 years imprisonment, while the various objectionable publication offences were met with terms of three years or six months. As all terms were imposed concurrently the effective sentence remained 13½ years imprisonment. In addition, the Judge directed that the respondent serve a minimum term of imprisonment of seven and a half years.

The level of risk in this case

The argument

[14] The issue of risk was central to the Solicitor-General’s argument. In brief, Ms Markham argued that the risk, or likelihood, that the respondent would commit a further qualifying offence upon release was such as to dictate the need to impose a sentence of preventive detention. This submission was largely based upon the assessments contained in the reports from the two health assessors. Counsel further argued that the absence of a previous history of sexual offending, the fact the respondent had not received treatment and the ability to impose an extended supervision order (ESO) at the end of the finite term (being the factors identified by the Judge as militating against an indeterminate sentence) were meaningless, absent a close assessment of the nature of the risk posed by the respondent.

[15] In summary Ms Markham contended:

41. ... the Judge’s reasons do not give the required primacy to the interests of protection of the community. The respondent’s offending is in the most serious category, he presents with a formidable risk profile, and his likely victims are among the community’s most vulnerable. His motivation for treatment is questionable, and his prospects for successful treatment are not promising. An indeterminate sentence is necessary to protect the public from the respondent’s significant and ongoing risk.

The section and its interpretation

[16] Section 87 contains a focus upon risk at various points:

(1) The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.

(2) This section applies if –

(the defendant is convicted of a qualifying sexual offence and is

18 years of age or over) and

(c) the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the

sentence expiry date (as specified in subpart 3 of Part 1 of the

Parole Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.

(4) When considering whether to impose a sentence of preventive

detention, the court must take into account -

(a) any pattern of serious offending disclosed by the offender’s history;

and

(b) the seriousness of the harm to the community caused by the offending; and

(c) information indicating a tendency to commit serious offences in future; and

(d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and

(e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. (emphasis added)

[17] This Court in R v C [2003] 1 NZLR 30 said of s 87 that it gave rise to a test not “materially different” from that outlined in R v Leitch [1998] 1 NZLR 420 (CA), in that preventive detention is a sentence designed to protect the community from those who pose a significant and ongoing risk to its members. It follows that while imposition of the sentence remains a matter of discretion, the sentence is not to be seen as one of last resort.

[18] The fact that since the Sentencing Act came into force in 2002 eligibility for parole may arise after five years (rather than 10) does not indicate that less serious offending is required to justify the imposition of the sentence. The real issue remains whether the offender should receive an indeterminate sentence because he or she poses a significant and ongoing risk to the safety of the community. The minimum term to be served before parole may be considered is a subsequent question, arising only when the prior statutory test for imposition of the sentence is satisfied: R v Bailey CA102/03 21 July 2003.

[19] Consistent with the significant and ongoing risk requirement a sentence of preventive detention provides the ongoing protection of life parole, and the sanction of recall, which do not accompany a determinate sentence. Hence, as this Court noted in R v Parahai [2005] 3 NZLR 356, a finite sentence to be followed by the available “backstop” of an ESO should not be viewed as “an agreeable alternative” to preventive detention.

The risk reports

[20] As required two expert reports were obtained one from a psychologist and one from a psychiatrist. That from the psychologist was of most assistance, because

it was obtained first and the respondent was essentially cooperative at that stage, but not at the time of preparation of the second report.

[21] The psychologist considered that Mr Hutchison exhibited both paedophilia and voyeurism, the presence of these paraphilia being one of the most robust predictors of future sexual offending. In addition he was found to have a psychopathic personality disorder characterised by a shallow and unstable affect, lack of empathy and remorse, absence of feelings of guilt or shame, and a manipulative, dominant and exploitive interpersonal style. The head injury which he suffered in 1991 was assessed to be of moderate to severe significance, but the effects of the injury could not be determined due to difficulty in obtaining meaningful test results. It remained a possibility that the injury increased his risk of offending and inhibited his ability to benefit from treatment.

[22] The report writer noted the escalation in the appellant’s offending over time and the increase in its seriousness, a pattern giving rise to concern. In addition the respondent was himself a victim of child sexual abuse, had a history of employment and domestic instability, a substance abuse disorder, a tendency to deny or minimise the seriousness of his offending and, finally, a number of previous convictions, giving rise to a history of non-compliance with court orders. These features were all viewed as historical or dynamic risk factors.

[23] The expert identified only one potentially risk reducing factor, being the respondent’s express willingness to undertake treatment during his sentence. However, she considered his motivation to be questionable, noted his failure to seek treatment of his own accord in the past and regarded his manipulative personality, head injury and negative response to past court-ordered interventions as pessimistic factors. Overall, the psychologist considered that the possibility of meaningful progress through treatment could not be totally excluded, but she feared that successful treatment of the respondent would pose a challenge. She was loath to venture a long-term risk assessment, preferring the approach that Mr Hutchison’s risk of reoffending should be reassessed towards the end of his sentence.

[24] The psychiatrist’s report was of less assistance on account of Mr Hutchison declining to cooperate in a further assessment. However, the report writer expressed the view that if released from prison at that time (May 2006) there was a “moderate to high likelihood of recidivism”. No risk assessment in the long term was given. Should the respondent engage in a therapeutic programme of treatment, the writer considered his risk of committing further sexual offences may be reduced.

Discussion

[25] As can be seen the Judge was placed in a difficult position on account of the limitations in the expert assessments. The respondent appeared for sentence in relation to multiple serious offences committed over a prolonged period, but absent a history of prior sexual offending. There was, therefore, no historical pattern of relevant offending. Moreover, a long term risk assessment was not available, although the psychologist’s report was essentially pessimistic on account of the range of issues which would have to be overcome if the respondent was to successfully complete a course of treatment designed to address the causes of his offending.

[26] We accept that as at the date of sentencing the respondent did pose a significant and ongoing risk to the safety of young members of the community. But, whether it remained likely that he would commit a further qualifying sexual offence, or offences, after release remained a much more difficult question. We also accept the point which was at the core of Ms Markham’s argument that the Judge did not make a finding in terms of s 87(2)(c), namely whether he was satisfied the respondent was likely to further offend upon release, no doubt because of the difficulties which attended this issue, to which we have already referred.

[27] But a sentencer is required to confront that question, regardless of the difficulties. Perhaps unsurprisingly there is a difference of opinion between the members of the Court as to whether future risk was established in this case. The majority are of the view that the psychologist’s report in particular does satisfy the statutory test, by indicating that there is a likelihood of further relevant offending upon release from a finite term. The combination of the pattern evident in the

subject offending, coupled with the impediments to the respondent’s successful involvement in a course of treatment, are seen as providing a basis for satisfaction that the likelihood of further relevant offending is established.

[28] The remaining member of the Court considers that on the available material the Judge could not have been satisfied that the likelihood of further relevant offending upon release was established. Added to this difficulty in the way of a finding on future offending were the absence of prior offending of this type and the need to weigh the s 87(4)(e) principle of a preference for a lengthy determinate sentence. In the same way that a finite sentence should not be viewed as “an agreeable alternative” this principle should not be minimised solely because of judicial concerns about an unknown future risk. Nor did the minority consider it could be said that, in this difficult sentencing situation, the Judge had exercised the discretion wrongly.

Does a lengthy determinate sentence provide adequate protection?

[29] Again, the Court is divided as to this aspect. The majority consider that the respondent is eligible and that it is appropriate to exercise the discretion to impose preventive detention, given the seriousness of the present offending and the significant and ongoing risk which the respondent may pose to young children in the future. The remaining member of the Court considers that the sentence of 13½ years imprisonment which Cooper J imposed will provide adequate protection to the community, and that in any event Mr Hutchison is not eligible for the indeterminate sentence of preventive detention because s 87(2)(c) is not satisfied.

[30] In light of the view of the majority, leave to appeal is granted and the appeal itself is allowed. The sentences of 13½ and 10 years imprisonment imposed in relation to the sexual violation charges are quashed and a sentence of preventive detention is substituted.

[31] Ms Markham submitted that, if preventive detention was substituted, the minimum period of imprisonment imposed by Cooper J should stand. Implicit in that submission was an acceptance that seven and a half years sufficiently marked

the gravity of the offence and that the safety of the community did not require an even longer minimum term: s 89(2). The majority agree with this assessment. The minimum term imposed in the High Court will therefore stand.

Solicitors:

Crown Law Office, Wellington