R v D [2012] NZHC 629 (2 April 2012)

Last Updated: 26 April 2012

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

1985. NAME SUPPRESSION OF D TO PROTECT THE IDENTITY OF THE COMPLAINANT.

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2011-083-2192 [2012] NZHC 629

THE QUEEN

v

_D

Hearing: 2 April 2012

Counsel: L Rowe for the Crown

J Rowan QC and R Simon for D Sentence: 2 April 2012

_{SENTENCING REMARKS OF MALLON J}

Introduction

[1] [D], can you please stand. I need to go through a number of matters in explaining to you the sentence that I need to pass on you. You appear for sentencing today, having pleaded guilty to four counts of sexual violation by rape, one of which

_{was representative.}[1]

R v D HC WANG CRI 2011-083-2192 [2 April 2012]

[2] You are here for sentencing in this Court because the Crown is seeking a sentence of preventive detention.

Circumstances of offending

[3] The charges relate to offending against one complainant, your daughter, over the period August 2008 to May 2010. The offending commenced when your daughter was about 14 years old and ended when she was about 16 years old. The offending occurred in the home that you shared with your daughter and her mother. All the offending occurred in much the same circumstances.

[4] The first incident occurred between August 2008 and 2009. You, your daughter and the daughter’s mother had consumed alcohol and cannabis. Your daughter was intoxicated and fell asleep on the couch. She awoke to you touching her and you proceeded to take off her pants and underwear and to rape her. Afterwards you pulled her pants back up and left the room.

[5] The second incident was similar. It occurred in about February 2009. You, your daughter and other family members had been drinking alcohol, the complainant fell asleep on the couch and awoke to find you rolling her onto her stomach and removing her pants. You proceeded to rape her and afterwards left the room.

[6] The third incident took place in about March 2009. You, your daughter and other family members had all been drinking alcohol. Your daughter went to sleep in a double bed with her older sister. In the early hours of the morning, you got into bed between your daughter and her sister, your other daughter. You removed her shorts and underwear which woke her up. You proceeded to rape her. Afterwards you stayed in the bed for awhile before leaving the room.

[7] The representative charge related to events between 13 August 2008 and May

2010 in which further rapes occurred in similar circumstances on dates that the complainant is unable to specify but which you admitted to when you were interviewed by the police.

[8] The offending was disclosed on 23 September 2010 and, as mentioned, you admitted that offending when you were interviewed on 18 October 2011.

Victim impact

[9] There is a victim impact statement from your daughter. I know that that has been read to you today and she expresses in that her thoughts about what you did to her. She says that she feels that she no longer has a father because of what you did to her. She says that you should have been there to protect her, but instead you took advantage of her. She says that she will never be able to forget what you did and her sister should never have had to see what she did. She has moved out of the area to try and put this behind her but it is “burnt” into her.

Circumstances of the offender

[10] Turning to information about you, I have the probation officer’s pre-sentence report, a report from a psychologist and a report from a psychiatrist. The latter two reports were obtained under s 88 of the Sentencing Act 2002.

[11] You are now 45 years old. You describe having a happy childhood although, when you were in primary school, you were the victim of sexual abuse. Your sister confirmed this and says that the one of the perpetrators was a brother of your mother’s who is now deceased. Your mother confirms that you were abused by your uncles, and says it was more than one, when you were a boy. Your mother and sister remain supportive of you and have maintained contact with you and are present in court for you today.

[12] You left school at 16 with no formal qualifications. You have been employed in various jobs and were in employment at the time of your arrest for the present offending. The probation officer comments that cannabis and alcohol have been part of your lifestyle for most of your adult life. The psychiatric assessments indicate that you do not have a mental illness, and there was no evidence of any psychiatric condition at the time of the offending. The report writers note that you have major

issues with alcohol dependence and anger. They further observe that you have major issues arising from your past sexual abuse.

[13] You have seven children aged between 11 and 24 years old from three separate relationships. Your children have not been in your care for some time. You told the report writers that your relationship with the mother of your youngest three children was turbulent, characterised by violence and frequent periods of separation. The three children from that relationship, one of whom is the victim of the offending for which you are being sentenced, were removed from your care by CYFS some years ago and placed with their maternal grandparents. As a result, you had little involvement with the victim in this case, both before and at the time of the offending.

[14] When asked by the probation officer about your offending, you did not offer any explanation. You did not try to shift the blame. You said “I just feel guilty, that’s all. My fault, I take the blame for what I done wrong”. The probation officer expressed the view that your remorse appeared rehearsed and lacked any real depth of understanding. The court-appointed psychologist also expressed the view that you appeared to lack empathy. However, counsel for the Crown and for you make the point that your remorse was evident in your police interview in October 2011 where you broke down several times in the course of making a full confession. The psychiatrist, Dr Barry-Walsh, reports that you could not answer how the offending had come about but that you felt guilty at the time and started staying at home and decreasing your alcohol use. You told him that you appreciated that your offending was painful and hurtful to your daughter and family, that you knew it was wrong, harmful and shameful.

Previous convictions

[15] You have a number of previous convictions. There are some minor matters in

1984, two driving offences in 1990 and 1991, convictions for assault of a child and injuring with intent to injure for an incident in 1994 and a conviction for male assaults female in 1995. You were convicted of assault with intent to rape in 1995. For this offence, you were sentenced to four years and six months’ imprisonment and

I will come back to this conviction later as it is the most relevant one for present purposes. After that time, your only convictions are for a drink driving incident, failing to answer District Court bail and shoplifting in 2005, and a further drink driving offence in 2007.

Finite sentence

[16] Because a sentence of preventive detention involves considering whether a finite sentence would provide adequate protection for society, I proceed first by considering what finite sentence I would impose.

[17] The Crown submits that the aggravating factors in this offending warrant a starting point at upper band three or lower band four from the Court of Appeal guideline judgment, R v AM.[2] That is, a starting point of between 15 and 16 years’ imprisonment. In written submissions, your counsel submitted that the starting point was too high, and that a more appropriate starting point is at upper band two or lower band three and a starting point of between 12 and 13 years’ imprisonment. This

afternoon your counsel acknowledges that he was a bit low in suggesting that starting point; and the two cases that he referred to were decided before R v AM and were also involving different offending.

[18] Band 3 is generally appropriate for offending which involves two or more factors increasing culpability to a higher degree.[3] Band 4 is for repeated rapes of one or more family members over a period of years.[4] Of the aggravating factors discussed by the Court of Appeal, your offending involved a vulnerable victim (through her age and intoxication), a gross breach of trust (in abusing your daughter) and repeated offending over a period of two years and, at least on one occasion, in

front of one of your other daughters. There is also the inevitable psychological harm to your daughter that is caused by your sexual abuse, exacerbated by your gross breach of trust. Having said that, this is not the worst offending of its kind because,

_{in comparative terms, the victim was not very young and the offending did not}

extend over many years.[5] I therefore consider that a 15 year starting point is appropriate.[6]

[19] I turn now to the factors personal to you. The only aggravating factor is your previous convictions for assault with intent to rape, which occurred 13 years ago. Because of the length of time since the conviction, I am not going to uplift the 15 year starting point I have adopted. You are entitled to a full discount for your guilty plea at the earliest opportunity. Deducting 25 percent from the starting point of 15 years would give an end sentence of 11 years and three months’ imprisonment. I will deduct a further three months for your remorse. Your counsel has spoken of that this afternoon and I accept that you are remorseful.

Preventive detention

[20] I now turn to the question of preventive detention.

Pattern of offending

[21] I must first consider whether your offending history shows a pattern of serious offending. Your previous conviction for assault with intent to rape is relevant here. The incident occurred in a period when you were binge drinking and using cannabis. You were in a relationship at the time. You were 29 years old. The victim was 17 years old. You knew the victim but claimed not to have recognised her because you were heavily intoxicated. As described by the Judge when you were sentenced:

...you formed [the] intention when you saw this young woman on her own in the telephone box.

...You hid your bike, you checked whether there was anybody around who might help her and stop you and then when she walked past you jumped out and grabbed her, assaulted her violently until she was almost knocked out and pulled her clothing off. Then you stopped for reasons that have been

discussed in the report. There it is said that was because of your recollection of things that had happened to you when you were quite a little boy.

[22] The similarities with the present offending are your use of alcohol and cannabis and that you were intending to rape the young woman and that you were in a relationship with a woman at the time. There are, however, differences. In the

1995 incident the woman was not a family member and was just someone alone on the street, you violently attacked her, and you did not carry through your intent to rape her. In the present case the victim was known to you, there was no violence but instead you took advantage of her young age and intoxicated state.

[23] According to prison records you told a prison officer that in the 1995 incident you had actually raped the victim. The court appointed psychiatrist also says that in the 1995 psychiatric assessment you disclosed that you had raped your partner. There is no further information about that and [it is said that you do not remember making the disclosure nor whether you did in fact rape her.] In the absence of further information about either of these two disclosures I think it is unsafe to place any reliance on them.

[24] You were released in July 1998 after serving three years of your sentence. The present offending commenced more than 10 years after your release, and more than 13 years after that offending.

Serious harm to community

[25] The next factor I must consider is the seriousness of the harm caused to the community by your offending. There is no doubt that your offending has caused serious psychological harm not only to your daughter but that it also did so to the young woman that you assaulted in 1995.

Reoffending risk

[26] Turning to the risk of you committing serious offences in the future. I am informed by what the experts have to say.

[27] The psychologist, Mr Badenhorst, has assessed you on the various tests that the psychologists use in these matters. On the ASRS test, which assesses the probability of sexual recidivism solely on static factors, you are in the medium to high group. On the Stable 2007, you were found to be in the moderate risk group. On the PCLSV, you scored above average. The psychologist also considered other factors, namely, what he described as “treatment failure”; secondly, a history of deviance (although in that he included the reported rape of your partner); and thirdly, sexual offending while in an intimate adult relationship. Overall, taking into account these factors the psychologist assesses you to be in a high risk of reoffending, most likely to take the form of rape of known females who may be related to you.

[28] The psychiatrist, Dr Barry-Walsh, also assesses you as being at high risk of further offending if you were to have unsupervised contact with your daughter, particularly if you were continuing to use substances.

Interventions

[29] Turning to the issue of interventions. When you were in prison for the 1995 assault with intent to rape, you participated in 18 sessions of individual treatment [with Department of Corrections psychologists] to address issues of depression, suicidality and offending. Your counsel points out in submissions today that the issue of suicidality was a serious one and that you attempted to take your life on

13 October 1996. The treating psychologist was of the opinion that you had demonstrated a willingness to work on offending issues and that substantial work had been done on offending issues. Recently you have said that you have no recollection of the treatment that you had. In reoffending, you have not applied the skills that you may have learned about in that treatment.

[30] On your release you also had three counselling sessions.

[31] On this issue, Mr Badenhorst notes your previous treatment and that you did not apply it to prevent your current offending. He reports that you are motivated to participate in intensive group treatment. He notes that further assessment is required

to determine whether an adult sexual offender or child sexual offender treatment programme would be most suitable.

[32] Dr Barry-Walsh notes that you want help and you are aware that you need assistance with the problems you have, including your problems with alcohol and anger. He says that there are a number of interventions that may substantially modify your risk. He notes your willingness to engage in therapy and your remorse means that you are likely to engage with a sexual treatment programme. Work on your anger, drug and alcohol abuse, he says would have a follow on favourable effect on your reoffending risk. He also mentions the possibility of work on literacy skills. He concludes that a combination of treatment and interventions would substantially reduce your reoffending risk.

Preference for finite sentence

[33] One of the factors I need to take into account also is the principle that a lengthy determinate sentence is preferable to a sentence of preventive detention, if the determinate sentence provides adequate protection for society.

Overall assessment

[34] The Crown submits that a sentence of preventive detention is appropriate because of the high risk that all report writers are agreed exist, that your sexual offending has extended over a period of some years, that despite treatment you have reoffended, that the reoffending was of the most serious kind, that your previous offending also involved violence and an attack on a stranger for sexual purposes. It says that the availability of an extended supervision order would not provide protection since it is there to protect those under 16 and one of your victims, the one in 1995, was over 16. Protective factors, such as being in an age appropriate relationship or advancing age are not present here. The Crown submits that in light of these factors the protection of the community can only be addressed adequately by imposing a sentence of preventive detention. It says that Dr Barry-Walsh has not referred to the failure of your previous treatment. The Crown notes that there is gap

in your offending but emphasises that when it did reoccur it was of a serious kind and occurred repeatedly.

[35] In relation to the previous treatment, I simply note that although Dr Barry- Walsh did not refer to the previous treatment in prison, he did speak with the psychiatrist who has clinical knowledge of you. I also consider it is not entirely accurate to say that the previous treatment failed. There is a significant gap in reoffending, between the assault with intent to rape and the current offending. It is an open inference that the treatment did in fact work for a considerable period of time. Your counsel refers to two cases where preventive detention was declined

despite expert assessments indicating the offender was a high risk of reoffending.[7]

He submits that if there remains a risk, an ESO may be appropriate (that is, an extended supervision order) noting that the victim in this case was 14 when the offending commenced.

[36] I have looked at other cases where there is a limited history and then a significant break before the offending for which an application for preventive detention is made. Cases I have found helpful include R v Chadwick,[8] although there

the gap was of 26 years, and R v Cooper[9] where there was a 16 year gap of which 10

years was in the community. I also refer to R v Kaimoana[10] where there were gaps effectively of 8 and 11 years. I consider that the time between your past attempted sexual offending and the present offending is a material factor. It provides a basis for concluding that intervention may reduce your risk. You are remorseful and you are willing to address your risk. The psychiatrist considers that there is treatment that can mitigate your risk. I think it is important that you have the opportunity to undertake that treatment. There are a number of examples in the cases where this

_{has been considered important in declining preventive detention.}[11]

[37] Because of this prospect, I am of the view that a finite sentence will provide adequate protection for the community and so I am not satisfied that a sentence of preventive detention should be imposed in your case. You should of course be aware that if my assessment is wrong, and if you do reoffend, you can expect an application for preventive detention which is likely to be granted.

Minimum period of imprisonment

[38] I am going to impose a finite sentence which means I need to consider a minimum period of imprisonment in relation to that sentence. In your case, deterrence is particularly important. A release after one third of your sentence would be, in my view, an inadequate response to the offending. I am going to impose a minimum term of imprisonment of six years, that is just over 50% of your end sentence.

Sentence

[39] Accordingly, I decline to impose a sentence of preventive detention. You are sentenced to concurrent terms of 11 years’ imprisonment on the charges. You are to serve a minimum period of six years’ imprisonment.

Name suppression

[40] I have referred to the name suppression to protect the identity of your daughter. There will be a non-publication order in relation to the sexual abuse on [D] himself. [Postscript: D has name suppression to protect the identity of his daughter. While that is in place, I have realised that the non-publication order in respect of the sexual abuse on D is unnecessary and is lifted.]

Mallon J

---

[1] _{Section 128(1)(a) and 128B of the Crimes Act 1961.}
[2] _{R v AM [2010] NZCA 114.}
[3] _{R v AM [2010] NZCA 114 at [105].}
[4] At [109].
[5] Compare with, for example, R v N CA88/05, 15 November 2005; R v E CA433/04, 6 April 2005; R v T CA445/03, 13 May 2004; T v R [2011] NZCA 203; W v R [2011] NZCA 529; R v Kolio A219/01, 1 November 2001; R v T (2002) 20 CRNZ 15 (CA).

[6] Comparable with, for example, R v O HC Hamilton CRI-2011-019-521, 24 November 2011.

[7] R v EDA HC Rotorua CRI-2009-063-2158, 16 September 2009; R v Thomas HC Hamilton CRI-_{2007-019-3417, 14 May 2008.}
[8] _{R v Chadwick HC Rotorua CRI-2010-063-1728, 21 October 2011.}
[9] _{R v Cooper [2011] NZCA 584.}
[10] _{R v Kaimoana CA172/87, 17 December 1987.}
[11] R v Keen [2010] NZCA 112; Pritchard v R [2010] NZCA 403; R v Neill HC Christchurch CRI-2009-009-6199, 15 October 2009; R v O HC Hamilton CRI-2011-019-521, 24 November 2011; R v Cooper [2011] NZCA 584.