Leonard v R [2013] NZCA 553 (11 November 2013)

Last Updated: 20 November 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA247/2013 [2013] NZCA 553
BETWEEN	SHAUN KAHU LEONARD Appellant
AND	THE QUEEN Respondent

Hearing:	30 September 2013
Court:	O'Regan P, Panckhurst and MacKenzie JJ
Counsel:	M A Stevens for Appellant M J Grills for Respondent
Judgment:	11 November 2013 at 3 pm

JUDGMENT OF THE COURT

A Time for appealing is extended.

B The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

[1] The appellant pleaded guilty in the District Court in Dunedin to one count of assault with intent to rape.^[1] At sentencing, Judge O’Driscoll noted that preventive detention had not been addressed. He determined that the appellant should be referred to the High Court for sentence, and the requisite reports were ordered.^[2]
[2] The appellant was sentenced by Fogarty J to preventive detention, with a minimum non-parole period of five years.^[3]
[3] The appellant appeals against that sentence. His notice of appeal was filed out of time and an extension is sought. The delay was short and counsel for the respondent accepts that there is no prejudice. We grant the extension sought.

Issue

[4] Counsel for the appellant accepts that the preconditions in s 87(2) of the Sentencing Act 2002 to the imposition of preventive detention are met. The essence of the appeal is that the sentencing Judge did not have sufficient regard to s 87(4)(e), the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

Legislation

[5] The relevant subsections of s 87 of the Sentencing Act provide:

(2) This section applies if—

(a) a person is convicted of a qualifying sexual or violent offence (as that term is defined in subsection (5)); and

(b) the person was 18 years of age or over at the time of committing the offence; 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

Sentence

[6] In his sentencing remarks, Fogarty J discussed at some length the application of the preconditions in s 87(2), and whether he was satisfied that the appellant was likely to commit another qualifying offence if released at the end of a finite sentence. The Judge assessed the likely finite sentence to be in the range of five and a half to six and a half years.^[4] The Judge did not specifically address the factors listed in s 87(4). He said:

[25] For these reasons, however, I am left satisfied, Mr Leonard, that you are likely to commit another qualifying sexual or violent offence were you to be released in 5 and a half to 6 and a half years time. That is my state of mind, my level of satisfaction. That being the case, I am then obliged – well, I am not obliged, I technically have a residual discretion. But given that state of satisfaction, I may impose a sentence on you, but I am considering, and it will be apparent from the words I have spoken today, that the safety of society and the protection of the community, which is the purpose of this sentence, has to be recognised by imposing a sentence of Preventive Detention.

Section 87(4) factors

[7] The imposition of a sentence of preventive detention requires first an assessment of whether the preconditions in s 87(2) are met. If they are met, the imposition of preventive detention involves the exercise of a discretion.^[5] That exercise of discretion requires an evaluation of the factors set out in s 87(4). The court must take into account all of the subs (4) matters. Those considerations are mandatory.^[6]
[8] There is a degree of overlap in that some of the matters in s 87(4), particularly those in paragraphs (a) to (d), will also be relevant to the assessment under subs (2). However, the focus of the two subsections is different, and all matters must be taken into account in the subs (4) assessment.
[9] Paragraph (e) is relevant only to the subs (4) assessment, and must be taken into account at that stage. Because Fogarty J did not expressly address the subs (4) factors, it is not possible for us to determine the extent to which he has had regard to subs (4)(e). Because of this, we approach this appeal by considering the sentence afresh, assessing for ourselves the subs (4) criteria.

Applying the s 87(4) factors

(a) Pattern of offending

[10] The first matter is any pattern of serious offending disclosed by the offender’s history. There is one relevant matter, an incident in 2005 which led to a prison term of nine years six months on a charge of rape and associated offending. The victim was a neighbour. The appellant had broken into her house some weeks earlier and stolen underclothing. On the day of the offending he broke into her house, wearing the underclothing. He raped her, threatening to kill her with a large knife if she did not comply. He repeatedly slapped her while he was raping her. He took no steps to avoid detection.
[11] Clearly that is very serious offending. It has features in common with the present offending. Mrs Stevens sought to distinguish the offending on the basis that the latest offending was not a home invasion, it did not involve a rape, there was no perverted or sadistic behaviour and the appellant voluntarily ceased the attack. We do not find that submission persuasive. The similarities outweigh any differences. Both offences involved targeting women with intent to rape. It is fortunate that the victim’s resistance prevented the completion of that offence, but that does not lessen the similarity.

(b) Seriousness of harm

[12] The next factor is the seriousness of the harm to the community caused by the offending. The present offending involved a sexually motivated attack, with a weapon, on a young woman in a public place in broad daylight. The fact that the appellant was deterred by the victim’s resistance from completing his intention of raping her does not mitigate the seriousness of the offending or the harm which it has caused to the community.

(c) Information indicating tendency to offend

[13] The third factor is information indicating a tendency to commit serious offences in the future. The psychiatric and psychological reports prepared under s 88 of the Sentencing Act are helpful on this aspect. The psychiatrist, Dr Parker, undertook a structured risk assessment, using the HCR20. That is a structured assessment tool that assists in the assessment of violence towards others by examining 20 factors that have been shown to be empirically linked with risk for violence. Ten of these factors are “static” historical factors, which are unchangeable and ten are “dynamic” or potentially changeable. The ten dynamic factors include five clinical factors related to the individual’s current presentation and five risk management factors relating to the individual’s future. Eighteen of the 20 risk factors were assessed as being present in the appellant. Dr Parker’s opinion is that the appellant “is at significantly higher risk of reoffending than the ‘average’ rapist”. He recommended that the Court take particular note of the HCR20 assessment in considering the risk of future offending.
[14] Dr Parker also noted that the appellant met the diagnostic criteria for a diagnosis of antisocial personality disorder. That diagnosis refers to a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood and continues into adulthood. He noted that the appellant also shows features of the diagnosis of sexual sadism, which is characterised by the derivation of sexual excitement from the psychological or physical suffering of a victim. He opined that if a further assessment determined that the diagnostic criteria for sexual sadism were not met, then an alternative diagnosis of paraphilia not otherwise specified could be considered as a way of conceptualising the appellant’s abnormal interest in violent sexual assault. He noted as relevant the lack of care the appellant had taken to avoid detection in both incidents of sexual violence. He reports that this has been noted in the literature on sexual offending to indicate that the offender has been so focused on the intensity of sexual gratification that arises from fantasy of the act that it has overridden all other considerations such as avoiding detection.
[15] Dr Parker noted that his view differed from that of the Corrections Department psychologist who had worked with the appellant during his term of imprisonment. The psychologist had not found evidence to suggest that sexual sadism was a significant issue. He viewed the appellant’s use of violence and intimidation as a way of obtaining sex. He also regarded the appellant’s failure to take steps to avoid detection as resulting from the appellant being overloaded with stress and essentially wanting to be caught as a way of relieving his difficulties. Dr Parker did not find that view convincing.
[16] Dr Parker also considered that the appellant meets the criteria for a diagnosis of sexual fetishism, an unusual preoccupation with the use of inanimate objects (frequently female underwear) as part of obtaining sexual arousal. Dr Parker expressed the view that with the benefit of hindsight it is possible that the lack of focus on deviant sexual fantasy resulted in an underestimate of the appellant’s risk at the time of his release on parole in 2012.
[17] The psychological assessment report under s 88, prepared by Mr Devereux, noted that the appellant attended 78 sessions with the Corrections Department’s psychologist between April 2009 and September 2012 and was still being seen for maintenance sessions at the time of his reoffending. His ROC*ROI (Risk of Conviction/Risk of Imprisonment) score fell within the group of offenders who have a moderate risk of imprisonment for general reoffending. That probability is based on static risk predictors. The appellant was assessed to have a PCL:SV (Psychopathy Checklist: Screening Version) score above the average score found for New Zealand offenders and his higher score on factor one indicated a higher probability of committing serious violence offences within two years of release into the community. On the Automated Sexual Recidivism Scale (ASRS), the appellant is assessed as being in the medium to lower risk category. That probability is based on static risk predictors.
[18] On the STABLE-2007, which assesses stable dynamic factors the appellant was found to be in the high risk group.
[19] The psychologist’s opinion is that on the basis of the static and dynamic risk factors identified in his assessment, the appellant should be considered to be at a high risk of sexual recidivism. Any future sexual reoffending would most likely occur in response to high levels of perceived emotional distress and subsequent increased levels of intrusive sexual thoughts, leading to higher levels of sexual preoccupation and sexual frustration, combined with a lack of access to a consenting sexual partner and a potential return to substance use. While his reoffending risk could potentially escalate rapidly there is likely to be a distinct element of premeditation. The overall conclusion of the psychologist is that the appellant is at a high risk of sexual recidivism and the risk level is likely to remain high until he can demonstrate significant progress in addressing his dynamic risk factors. Mr Devereux notes that the appellant presented as having made positive treatment progress in prison prior to his release but observes that clearly those gains were not sustained upon his release.

(d) Absence or failure of efforts to address causes of offending

[20] The fourth factor to be considered under s 87(4) is the absence of, or failure of, efforts by the offender to address the cause or causes of the offending. It is clear that the one on one psychological treatment which the appellant received while in prison has not been effective to address the causes of his offending. Mr Devereux noted that the appellant presented as having made positive treatment progress while in prison, but clearly these gains were not sustained on release.
[21] Mr Devereux considers that attendance at the Department of Corrections Adult Sexual Offender Treatment Programme (ASOTP) would be the best and most intensive therapeutic option available to the appellant during his period of imprisonment. He strongly recommends consideration for attendance at that programme, which has already been added to his current prison services plan. Mr Devereux notes that while the appellant has indicated a willingness to undertake the ASOTP, he was advised that if he continues to remain guarded, avoidant, vague and non-committal during his pre-assessment interview for the ASOTP, the likelihood of him being accepted into that programme would be compromised. The opinion is expressed that the appellant will only benefit from this treatment opportunity if he chooses to engage in an open and honest appraisal of his sexual offending motivations and issues while attending the ASOTP.

(e) Lengthy determinate sentence preferred

[22] The final factor to be considered is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[23] We are of the clear view that a lengthy determinate sentence would not provide adequate protection for society. The factors which we have previously addressed indicate that there is a high risk of potentially very serious sexual offending against complete strangers in circumstances where the possibility of detection will not operate as a significant deterrent.
[24] Mrs Stevens submits that the existence of treatment opportunities is a factor weighing against preventive detention. She notes that attendance at the ASOTP is considered the best and most intensive therapeutic option available to him. She notes that consideration for attendance at this programme is strongly recommended by the psychologist and that the appellant is recorded as willing to attend the programme though his inclusion in it would be dependent on his full participation by being open and honest about his sexual offending. Counsel submits that his attendance at that programme is likely to come at an earlier stage if he is sentenced to a finite term rather than to preventive detention.
[25] We cannot have sufficient confidence that treatment during a finite term of imprisonment would mitigate the risk we have identified to an acceptable level. In our view, the reservations expressed by the psychologist as to the appellant’s preparedness to engage with and participate in this treatment at this stage suggest that a lengthy term of imprisonment is likely to be needed before the appellant could meaningfully participate in the programme. Further, we are concerned that a finite sentence may not be sufficient to bring the appellant to a realisation of the need to address his offending so as to participate meaningfully in treatment. The lack of a positive response to treatment in the previous finite term does not give cause for optimism in this regard.

Result

[26] For these reasons, we have reached a conclusion that a sentence of preventive detention was required. The minimum period imposed of five years is the statutory minimum.
[27] The appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington, for Respondent

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^[1] Crimes Act 1961, s 129(2).

^[2] R v Leonard DC Dunedin CRI-2012-012-3312, 27 November 2012.

^[3] R v Leonard [2013] NZHC 460.

^[4] At [8].

^[5] R v C [2003] 1 NZLR 30 (CA) at [6].

^[6] R v C, above n 5, at [7]; Trotter v R [2005] NZSC 7 at [3].