R V NEILL HC CHCH CRI 2009-009-6199 [2009] NZHC 1436 (15 October 2009)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                                CRI 2009-009-6199



                                      THE QUEEN



                                             v



                        
   ROBERT REGINALD NEILL



Charge:         Sexual violation by unlawful sexual connection with a young
                       person
under 12;
                Sexual conduct with a young person (2)

Plea:           Guilty

Appearances: Heather McKenzie and Brent
Stanaway for Crown
             Jonathan Eaton for Prisoner

Sentenced:      15 October 2009
                Sexual violation ­ 5½
years imprisonment; minimum term of
                       3½ years imprisonment
                Sexual conduct ­ 2 years imprisonment
on each (concurrent)



                     SENTENCING NOTES OF HARRISON J




_________________________________________________________________________________

SOLICITORS
Raymond Donnelly & Co (Christchurch) for Crown
Jonathan Eaton (Christchurch) for Prisoner


R V NEILL HC CHCH CRI 2009-009-6199
15 October 2009

Introduction


[1]     Mr Neill, you have pleaded guilty to one charge of sexual violation by
unlawful sexual connection
of an 11 year old boy and two charges of sexual conduct
with the same child. You know that the maximum term of imprisonment for which
you are eligible on the first charge is 20 years. On the second charge the maximum
term is seven years.


[2]     The principal question
for determination today is whether or not to impose a
sentence of preventive detention or whether or not to impose a fixed or finite
term of
imprisonment. The answer to that question will depend upon whether I am satisfied
that a finite term coupled prospectively
with an extended supervision order will
provide society with the necessary degree of protection against you.


[3]     Your offending
highlights a significant tension between two sentencing
principles. On the one hand there is the importance of punishment, which
is inherent
in a fixed term. On the other hand there is the singular requirement of community
protection, which underlies the power
to impose preventive detention. Whichever
sentence is imposed, you are aware that a minimum term will be fixed.


[4]     Before
dealing with the formal parts of your sentencing, Mr Neill, I wish to
acknowledge the high quality of the argument and submissions
presented both by
Ms Heather McKenzie for the Crown and Mr Jonathan Eaton for you.                From
listening to my exchanges
with both, you will understand that each has provided
very informative argument, whether for or against a sentence of preventive
detention. I am grateful to them and also to the report writers, the psychiatrist and
the psychologists and the probation officer.
As a result I am satisfied that I have
available all possible information about you necessary to determine the appropriate
sentence.


Facts


[5]     The material facts fall within a depressingly narrow compass.

[6]    You were an acquaintance of your victim's
mother. You were staying at her
house at the time of the offending. For reasons which are not explained, you were
allowed to sleep
in the boy's bed. He slept on a mattress on the floor in the same
room. Sometime during the night you climbed onto the mattress.
You pulled the
child's pants down and you started masturbating him while lying nearby. He told
you to get away. You covered his mouth
with your hand to stop him talking. You
then continued to masturbate the boy for a few minutes. Next you sucked his penis
for several
minutes. When the boy tried to leave the room you blocked the door,
preventing him.


[7]    You then directed the child to masturbate
you. He initially refused. In due
course he capitulated, only because he hoped you would go to sleep. He would then
be able to tell
his mother. The child told you of his intention. You pleaded with him
not to inform his mother. He left the room for that purpose and you fell asleep.


[8]    Initially when confronted by the boy's mother you denied the offending. You
then fled Canterbury
and travelled to Lower Hutt. You contacted the police there
and made a partial admission.       You also attempted to commit suicide.
         The
circumstances of the attempt you made on your own life have been recently outlined
by Mr Eaton.


[9]    Consistently
with the pattern of your behaviour, Mr Neill, you told the
probation officer that the victim was a willing participant. You now appear
to accept
that he was not responsible in any way. But to some health professionals you have
tried to rationalise your crimes. To
one you have said that you were almost justified
because the boy was "screwed up". You must understand, Mr Neill, as a result of
what you have heard today, that the sole responsibility for these offences rests with
you. The conduct of an 11 year old boy is utterly
irrelevant. I am satisfied that he
was not a willing participant. He was only involved because you forced him to.


Preventive Detention
Inquiry


[10]   As I have said the principal inquiry is whether or not to impose a term of
preventive detention or a fixed term
of imprisonment. The purpose of preventive

detention is to protect the community from those, like you, who pose a significant
and
ongoing risk to its members. You are plainly eligible for the sentence. That is
for three reasons: first, you have committed qualifying
sexual offences; second, you
are aged 60 years ­ well over the 18 year threshold; and, third, I am satisfied from
the three professional
reports and from the circumstances of your offending, both
present and past, that you would be likely to commit another qualifying
offence if
released at the date of expiry of a sentence which would otherwise be imposed.


[11]   Given that degree of satisfaction,
I must now consider five mandatory factors
in deciding whether to impose preventive detention.


(1)    Pattern of serious offending


[12]   First, there is the pattern of your serious offending disclosed by your criminal
history. You have five convictions for
sexual offending against young people or
children dating back to 1992. You have heard that I am prepared to put to one side
for these
purposes your conviction in the Youth Court in 1966.


[13]   In 1992 you were sentenced to two-and-a-half years imprisonment for
indecency offences against both a male and female child under the ages of 12 years.
In 2005 you were sentenced to 18 months imprisonment
for indecency against a
young male. The circumstances of that past offending are set out in the report
provided by Dr Galvin. It
is of some significance in this exercise that the offending
that you committed in 1992 was principally directed towards a relative.


[14]   Like the subject or current offences, your previous offending was not, I
accept, at the most serious end of the scale. But
it indicates two things. One is a
consistent pattern of attraction to commit sexual offences against those who are most
vulnerable;
in other words, a predatory tendency. The other is that the serious
offending started at a relatively late stage in your life. By
my calculation, you were
about 47 years of age. That is most unusual.

(2)    Harm to community


[15]   The second factor is the
seriousness of the harm caused to the community by
your offending. As I noted earlier, Mr Neill, your victim was an 11 year old boy.
He was the child of a woman you had befriended. By unfortunate coincidence he
had been sexually abused by a different male three
years earlier.


[16]   I accept that your victim has had an apparently troubled young life. Shortly
after your offending he was
placed in foster care for his own protection. He has
since run away at least four times. He has been sent to a secure facility in
Auckland
until a place became available in a similar facility in Christchurch. All he wants to
do, Mr Neill, is to be reunited with
his mother and with his older brother.


[17]   He feels very angry towards you. He said he would like to kill you. He now
suffers from sleep disturbances and
serious nightmares. He has a fear of the dark.
On a more sinister note, he has started a practice of self-harm. That is said to be
a
common compulsion among children who are the subject of sexual abuse. It is also
unsurprising that his level of self-esteem is
at the bottom of the measurable scale.


[18]   Your victim's life is a mess. I accept that you are not completely to blame.
But
you know, and I know from my experience of these things, that your offending
has compounded his emotional suffering. No child deserves
that; no child should
suffer at the hands of an adult.


[19]   I have outlined these factors, Mr Neill, because they illustrate
the degree of
harm which your offending causes to those in the community, to those who are least
able to protect themselves.


(3)
   Future offending


[20]   The third factor is whether or not there is a reliable evidential basis for
concluding that you will
have a tendency to commit crimes in the future.

[21]   The probation officer, not unsurprisingly, concludes that you present a
high
risk of re-offending. She relies on your lack of victim empathy, your lack of a safety
plan and your apparent unwillingness
to recognise and address high risk situations
which are a major cause for concern.


[22]   Mr Eaton has produced a report from the
Psychological Services section of
the Department of Corrections dated 3 April 2008. It followed your referral for the
purpose of
obtaining treatment to manage your risk of re-offending. At that time
Dr Nairn, the senior psychologist, advised that you appeared
to "own" your
offending ­ by that I assume she means that you were prepared to take responsibility
for your crimes ­ and that you
were aware of the consequences of re-offending; that
you had completed a defence map and safety plan; and that you were estimated
by
her to pose a low risk of re-offending in a general manner and a moderate risk of re-
offending in a sexual manner.


[23]   Well,
Mr Neill, your commission of these offences is a resounding
demonstration of the insincerity of your assurances to Dr Nairn on that
occasion, and
you have also let down her confidence in your ability to participate in a remedial
programme.


[24]   Dr Buchan, the
consulting psychiatrist, confirms your risk factors. She has
identified all the historical and situational risk factors that show
you pose a
significant risk of further sexual offending in the context of, and I emphasise this, the
absence of treatment.     In
particular she identifies your sexual arousal patterns;
ongoing difficulties with emotional regulation and relationship skills, particularly
those involving intimacy; social isolation; access to vulnerable victims, particularly
your targeted group of young males; lack of
external supervision; and use of
cannabis. The circumstances of the offending on this occasion, as Ms McKenzie has
pointed out, include
many of those factors.


[25]   You told Dr Buchan that you were shocked and querulous about why you
committed the offending. You
confessed your responsibility to her. You then
attempted to apportion a good deal of blame to the boy. As a result you said you did
not "feel too bad about what happened". I hope, Mr Neill, that that was a remark

that you now regret and one that showed a degree
of untypical consideration. I am
prepared to put it to one side. But all of these events tend to confirm what I am
satisfied is a
lack of self insight.


[26]    Dr Galvin, the clinical psychologist, observed that your risk, as
Ms McKenzie said today, based on
static factors, is in the medium-high range. You
exhibit a lot of dynamic risk factors. They increase your overall risk of recidivism.
Dr Galvin considers that while it is clear that you are able to articulate the damage
your offending might have done and to use words
of responsibility and remorse, you
still hold to the view, in a way of attempting to pass blame onto others, that your
victim sought you out. Nevertheless she is of the opinion, and this
is significant, that
your cognitive distortions and some of your risk factors could be addressed at
Kia Marama.


[27]    In conclusion
I am satisfied that you do pose a real and significant risk of re-
offending without appropriate therapeutic intervention.


(4)
    Efforts to address causes


[28]    The fourth factor is the question of the efforts taken by you to address the
cause of your
offending.


[29]    You have heard my exchanges with counsel on that subject. In short, you
were assessed as being suitable for
entry into the STOP programme in 2008.
However, for reasons beyond your control, you did not obtain entry. Beforehand
you had over
30 individual treatment sessions with a registered psychologist.
However, Ms McKenzie very fairly points out that there is a distinction
between
one-on-one counselling with a psychologist and participation in a group environment
in a structured programme.         Moreover,
as Mr Eaton highlights, many of those
sessions were related to your anxiety problems, not to the underlying issue of your
sexual
difficulties.


[30]    It is significant that you are willing to re-engage in treatment for sexual
offending. I am prepared to put
aside the conclusion that might be open to me that

that expression of willingness is a convenient one. I am prepared to accept
that you
are genuine and that you do want to change your sexual predilection for young
people. Both Dr Galvin and Dr Buchan support
reference to a formal programme.


[31]   I do accept, and it is significant, that you have had limited specific treatment
for your
sexual offending in the past. That is a very relevant factor.


(5)    Lengthy determinate sentence


[32]   The fifth factor that
I must consider is the principle that a lengthy determinate
sentence of imprisonment is preferable if this provides adequate protection
for
society.


[33]   Mr Eaton trod a careful path this afternoon. He does not want to advocate a
course which would lead to imposition
of a sentence of such relative brevity that the
prison authorities would be unable to find entry or a place for you in a therapeutic
programme.


[34]   Both counsel have addressed me on the appropriate starting point for your
primary or index offence of sexual
violation by unlawful sexual connection. There is
a degree of consensus. Having heard them both, I am satisfied that the appropriate
figure is five years. That must be adjusted upwards by at least one year to take
account of the totality of your offending and the
other two offences of sexual
conduct. A further adjustment or uplift is appropriate to a hypothetical final starting
point of eight
years to recognise your propensity for this type of offending. The
question then is whether that sentence, coupled prospectively
with an extended
supervision order on your release, would provide adequate protection for society.


[35]   You have heard me say,
Mr Neill, that this is a finely balanced exercise. I
have given it anxious consideration, both before and during this hearing.
Ms
McKenzie posed the question very appropriately: in effect she inquired whether
the Court is prepared to take the risk of imposing
a finite term as opposed to a term
of preventive detention. She is right. There is a risk, and it is very real, that you will
re-offend
on your release. On one view you are predatory. You minimise, you tend

to blame, you show signs of being manipulative, and you
lack an insight. On the
other hand, though, as I have said, you are willing to participate in programmes.
Mr Eaton is also right.
While there is a pattern to your offending, and while the
harm done is serious, it is constant and at a relatively low level.


Conclusion


[36]   Having weighed up all the factors, I am going to exercise my judgment in
favour of a finite term of imprisonment in the
expectation that the Department of
Corrections will apply for an extended supervision order on your release. The factor
that sways me is the one highlighted by Mr Eaton.
You have not had the benefit of
intensive therapeutic intervention. There is, I am satisfied, a legislative presumption
in favour
of exhausting that avenue or a similar avenue or avenues of rehabilitation
before imposing preventive detention. That sentence is
truly a last resort.


[37]   Accordingly, Mr Neill, I apply an adjusted starting point of eight years
imprisonment on the lead or
index offence of unlawful sexual connection. Against
that you are entitled to a discount of one third. The final sentence, allowing
for your
plea of guilty and your expressions of remorse, is five-and-a-half years
imprisonment. On the other two charges you are
sentenced to concurrent sentences
of two years imprisonment on each.


[38]   It is beyond question that a minimum term of non parole
should be imposed.
In the circumstances that is at the maximum of two thirds or three-and-a-half years.
In other words, you will
not be entitled to apply for parole before three-and-a-half
years have elapsed.     This term of imprisonment is structured, Mr Neill,
in the
expectation that the authorities will take all possible steps to ensure that a place is
found for you in the Kia Marama or
some other programme to coincide with your
eligibility for release on parole. I am anxious to avoid the prospect that you will
simply
languish in prison without the benefit of the therapeutic intervention which
underlies and drives this sentence.


[39]   In conclusion
I can tell you, Mr Neill, that you owe this result to Mr Eaton. I
trust that you accept that point and also acknowledge that today
is your last chance.

You know that if you commit any further sexual offences on your release, you will
be sentenced to a term of
preventive detention. The prospects of your release on that
sentence are very slender. You must take advantage of the opportunity
that your
counsel has earned for you today. Please stand down.




                                            ________________________________
                                            Rhys Harrison J