R v Smyth [2013] NZHC 2043 (13 August 2013)

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

[1] Mr Smyth, you appear for sentence today, having pleading guilty to two charges of sexual violation by rape, nine charges of unlawful sexual connection, one charge of abduction for sex, one charge of indecent assault, one charge of aggravated robbery, on charge of threatening to kill and one charge of unlawfully taking a motor vehicle. I now have to formally convict you on those charges.

[2] The charges of sexual violation by rape and unlawful sexual connection carry maximum penalties of 20 years imprisonment. The other charges carry maximum sentences of either 14 or seven years imprisonment.

[3] Because these convictions relate to serious violent offending that was committed after l June 2010 you are now subject to the three strikes law and so I am required to warn you that:

(a) If you are in future convicted of any other serious violent offence other than murder committed after this warning then you will serve any sentence of imprisonment imposed on you without parole or early release.

(b) If you are in future convicted of murder committed after this warning then you will be sentenced to life imprisonment without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[4] You will also be given a written warning about those things. [5] But now I am now going to talk about your sentencing today.

[6] Your lawyer, Ms Manning, and the Crown’s lawyer, Ms Prasad, are agreed that the main question for me is whether you should be sentenced to preventive detention or to a finite, or fixed, term of imprisonment. A second question will be the length of time which you must serve as a minimum term of imprisonment.

[7] First of all, I need to talk about what it is you have done because that is going to have a big effect on whether or not I sentence you to preventive detention and also, if instead you are sentenced to a finite term, the length of that term.

[8] Now all the offences that I am sentencing you for today were committed within a six hour period on 7 December 2012.

[9] On that day you were hanging around near the car park at the Lynn Mall. Just after 6 pm you saw a 17-year-old girl walking to her car while talking on her cellphone. You did not know her but her name was C. You followed her. You waited until she had gotten into the car and off the phone and then you opened the driver’s door and put a large knife against her throat. You held your hand over her mouth and then you tied her hands behind her back with a bandana. You told her to get out of the car and said that if she screamed you would cut her throat. Once she got out of the car, you forced her into the boot.

[10] Then you drove the car for about an hour to Pokeno, south of Auckland, where you parked behind a large shed in an isolated industrial yard. You had found a sharp fishing knife in the car and when you opened the boot you grabbed hold of C’s pants and pulled her towards you. While she was lying on her back in the boot of the car you cut off her underwear with the knife before ripping open her shirt and cutting it off. Then you took off her bra, exposing her breasts. You pulled down her pants, leaving them around her ankles. Then you spat on her vagina before repeatedly forcing your fingers into it, and into her anus. As you were doing this you called her a bitch.

[11] Then you gagged and blindfolded C and tied her hands and feet together using her shoe laces. When a train went by you forced her back into the boot and drove to a more private part of the yard. Then you opened the boot again and showed C that you had found her driver’s licence in the car. You said that you knew where she lived and that you would kill everyone she loved in front of her.

[12] Then you put two knives on the boot and again you spat on, and forced your fingers into, Cs vagina and anus. You forced your penis into her mouth and pulled

her head towards you. This made her gag to the point where she vomited. As she was being sick, you hit her on the head, pushed her onto her stomach and verbally abused her.

[13] Once C had stopped vomiting, you grabbed her hips and moved her into a position which enabled you repeatedly to put your penis into her anus. This caused her great pain and she was crying. She tried to move away but you held her so she could not. Then you moved her around so that you could have vaginal sex with her, which you did until you ejaculated.

[14] C then asked you if she could have a cigarette and talk to her boyfriend one last time, which you let her do for a short time although you told her that if she said anything to her boyfriend he would be the first to die. Then she asked to go to the toilet but because you had tiled her legs, she could not walk. So you carried her to a spot where you let her urinate. But some of the urine went onto your shoes and so you dropped her into the urine on the ground. Then you used an oily rag from inside the car to wipe her down before putting her back in the boot.

[15] About five to ten minutes later you came back and opened the boot and put C in a position so that you could again repeatedly insert your fingers into her vagina and anus. And then you again had both vaginal and anal sex with her until you ejaculated.

[16] Next, you forced C back into the car and you returned to the Lynn Mall carpark just after midnight. You made her tell you where she lived and she thought that you were going to take her there to be killed. At some point, you took her bank cards and demanded that she give you the pin numbers. Then you drove to a place near to her house and pushed her out of the car. Her landlord called the Police and you were arrested shortly afterwards in the city.

[17] Unsurprisingly, C received a number of physical injuries as a result of the attack including bruising to her body, arms, legs and head as well as injuries to her genitals and anus. I have read C’s victim impact statement. She does not want you to see copies of those and I am going to respect that by not going into any detail

her – physically, emotionally and also financially, by affecting her ability to work. She was a girl who was a complete stranger to you and yet you did horrible, dreadful things to her. The things you did are so unspeakable that she has not even been able to tell her mother about them.

[18] As I have said, the main question for me is whether the appropriate sentence is preventive detention or a lengthy fixed term of imprisonment. Ms Manning will, I am sure, have explained to you that the purpose of preventive detention is to protect the community from people who pose a significant and ongoing risk. You have committed qualifying sexual offences and you were over 18 when you committed them. Accordingly, the issue I need to decide is whether I am satisfied that you are likely to commit another qualifying sexual offence if released at the expiry date of a finite sentence. There are a number of things that the law says that I am required to

[19] The first of the things that I need to consider is whether there is a pattern of serious offending by you.2 It is in your favour that, although you have 24 previous convictions, none involve things that are particularly similar to what you did on

6 December last year. But there have been some sexual overtones to what you have done before. In particular, I note that in some of the burglaries you have committed you have stolen women’s underwear and other items of a vaguely sexual nature. On one such occasion the Police found that you had burned a hole in the crotch area of one of the pairs of underpants that you had taken. And one of the psychologists has referred to another incident involving women’s underwear. Nonetheless, I do not

_{think it can fairly be said that there is yet a pattern of serious
offending in your case.}

[20] The second thing I must consider is the harm that your offending has done to the community. I have already referred to the terrible harm that you have caused to C but actions like yours harm all girls and women and they harm the community too. Women and girls are not objects. They should be able to walk around by themselves, they should be able to walk through a carpark at 6 o’clock in the evening and get into their car after work without fearing that someone like you will kidnap them, terrify them and repeatedly rape and humiliate them. And I have to say, your nan would probably agree with me about that. So there is obvious harm to the community here.

[21] The third thing I must consider is any information that suggests that you are likely to commit similar offences in future. In your case, I have the psychologists’ reports that have been prepared about you. Unfortunately, you were not wholly cooperative with the report writers and some of the information that might have been useful today is not as complete as it might have been. But I tend to accept what Ms Manning has said though about the reasons for that.

[22] One of the psychologists noted that you had a difficult upbringing characterised by violence, gangs and alcohol. After your nan died you were neglected as a child and you became heavily involved with the Mongrel Mob. He says that after you were imprisoned in 2009, you completed a high intensity nine month rehabilitation programme for high risk offenders. At the end of this programme further individual treatment with a psychologist was recommended to manage your risk of re-offending and to explore the sexual behaviour connected with

[23] I do not propose to go into detail about what else the psychologists said but it is of great concern. What is particularly relevant is that they are essentially agreed

	(b)	You have limited understanding about the causes of your offending and you seem unable to accept the reality of it or really to take any
		responsibility for it. But again, I have listened to what Ms Manning
		said about that and I tend to agree with her on that front too;
	(c)	Notwithstanding the nine month rehabilitation programme that you
		completed last time you were in jail you re-offended in a much more serious way soon after you were released;
	(d)	You have not had any specific treatment for sexual offending although it may be that you are willing to have such treatment;
	(e)	You have a well established anti-social personality disorder and some intellectual impairment which makes treatment more challenging;
	(f)	It is not possible to say with any certainty whether future treatment will be effective. Equally, it is not possible to say with any certainty
		whether it will not be;
	(g)	But unless you receive such effective treatment the psychologists
		consider that you present a high to very high risk of re-offending in this sexual and violent way again following your release from prison.
[24]	One	matter that is also perhaps in your favour is that you are still young and

[25] The next thing I am required to consider is what efforts have been made by you to address the causes of your offending. I have already noted the programme

have said as well, however, you not received specialist rehabilitative treatment for sexual offending and I think that that is important and relevant.5

[26] The fifth and last matter that I must consider in this context is that Parliament has said that a lengthy, fixed sentence is preferable provided it would provide adequate protection for the public. One difficulty is that you are not eligible for an extended supervision order,6 which is a factor often taken into account by the Courts as going against preventive detention. The Crown you have heard say that a sentence of preventive detention is the only long-term protective mechanism available in your case to the Court.

[27] Taking into account the statutory purposes and principles of sentencing, the aggravating features and the relevant Court of Appeal guidelines,7 an appropriate starting point (if I was going to impose a fixed sentence) would, in my view, be 17 years imprisonment. This starting point would recognise the totality of your offending and that there are some particularly bad things about what you did, including: and the lifelong and serious harm that she has suffered. These are:

(a) an element of premeditation, because I think you would accept that you were planning to commit some kind of offence that night;

(f) the number of things that you did to her and the length of time it all took; and

(g) the elements of degradation and cruelty involved. Although, again, I accept what Ms Manning said, that this was not the worst case of that kind.

[28] I would not increase the 17 year starting point on account of your previous convictions.

[29] In terms of things that might mean that the starting point should be reduced, Ms Manning has said that it is difficult for you to express remorse for what you have done or to accept responsibility for your actions. I do not think that you are yet able to see the terrible harm that you have caused or to understand how C must feel. But I consider overall that this is a neutral factor in the particular circumstances of your case.

[30] I accept, though, that there would be an adjustment downwards for your guilty plea and the fact that you have not put C through a trial. And that would mean that any fixed sentence I would impose (if I do not impose preventive detention) would involve a term of imprisonment of 13 years. There is no question, in my view, that a minimum term of imprisonment would be necessary, particularly to hold you accountable for the harm you have done and adequately protect the community.

[31] Now I need to say to you Mr Smyth that today’s decision has not been an easy one for me to make. You have a lot of issues that need to be addressed and even though I do not think it can be said that your past offending can be said to follow a

_{pattern, I am very concerned about the risks that you pose. However,
the fact that}

you have not received any treatment relevant to sexual offending in the past is important. I accept that in a way that is because your needs in that respect have really only just been identified. I hold out some hope that you will receive treatment and that it will be effective. And as I have said, there is some evidence that your young age may increase the likelihood of your getting better. It is also a factor that has helped me make my decision.

[32] So I am going to exercise my judgment in favour of a lengthy, finite term of imprisonment with the imposition of a minimum term. That means preventive detention is not going to be imposed by me today. What it means is that your final sentence will be 13 years’ imprisonment, which is made up in the way that I have already explained, with a minimum term of eight years in prison. That means that you will not be entitled to apply for parole before eight years has passed.

[34] On the lead sexual violation charges you will be concurrently sentenced to 13 years’ imprisonment with a minimum period of imprisonment of eight years. I will set out the sentences that you will receive on the lesser charges in an attachment to these notes but those sentences will also be served concurrently, which means that 13 years is it. You may stand down.

[35] Mr Smyth, I have called you back into Court because it has been drawn to my attention that I made a mistake when I sentenced you earlier today. My mistake does not affect the effective end sentence of 13 years’ imprisonment or the minimum period of imprisonment of eight years. That is still the effective sentence from your point of view.

[36] What I did not make clear in Court before, though, is the sentences that I must impose for the other charges. As I explained this morning, those sentences will be served concurrently or at the same time as the 13 years for the rapes so will not add to the amount of time you spend in jail. But the law says that I must still tell you what those sentences are here, in this courtroom. So I am going to do that now.

[37] On each of the nine counts of sexual violation, I sentence you to 10 years’

[39] On the indecent assault charge I sentence you to four years’ imprisonment.

[41] On the threatening to kill charge I sentence you to three years’ imprisonment.

[42] On the unlawfully taking a motor vehicle charge I sentence you to one year imprisonment.

[43] As I have said, all of those sentences are to be served concurrently with each other and with the 13 year sentence on the rape charges. As I explained this

_{morning, you must serve eight years in prison before you will be
eligible for parole.}

Hearing:	13 August 2013
Appearances:	A A Prasad for Crown N J Manning for Prisoner
Judgment:	13 August 2013

High Court of New Zealand Decisions

R v Smyth [2013] NZHC 2043 (13 August 2013)