R v McCord [2013] NZHC 3261 (6 December 2013)

Last Updated: 17 February 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-090-001262 [2013] NZHC 3261

THE QUEEN

v

EUGENE HAPIE MCCORD

Hearing: 6 December 2013

Appearances: W P Cathcart for Crown

M J English and A M Rice for Prisoner

Sentence date: 6 December 2013

_{SENTENCING NOTES OF COURTNEY J}

R v MCCORD [2013] NZHC 3261 [6 December 2013]

[1] Eugene McCord, you appear for sentence today on two counts of indecent assault to which you have pleaded guilty in the District Court. The District Court declined jurisdiction to sentence you on the grounds that you are eligible for a sentence of preventive detention and the Crown seeks that today.

[2] The two charges arise out of a single incident in which you were visiting your elderly neighbour. The complainant was 77 years old at the time of the offence. She lived alone. On 5 February this year you went to her house and talked with her. To start with you were sitting on a chair and she was sitting on a couch. You then moved and sat close to her on the couch. You tried to put one of your hands on her leg and at one stage put one of your arms around her neck. According to the agreed summary, which I note here is very unsatisfactory, you then tried to put your hand over her vagina on top of her clothing and pushed down. The complainant pushed your hands away. You referred to wanting to have sex with her and said words to the effect of ‘what’s the point of being here and talking when we can be together?’ You tried to put your hand over her vagina again and this time she pushed you away and stood up, telling you to get out.

[3] It is evident from the complainant’s victim impact statement that the offending has had a significant impact on her. She feels vulnerable and unsafe in her home. She has installed security gates. Her grandchildren are no longer allowed to come and stay with her because their parents regard her neighbours as unsafe. Your actions have changed her once safe and happy home into a place where she no longer feels safe and is deprived of the company that gave her such pleasure.

[4] As I have mentioned, the Crown today seeks an order for preventive detention. The purpose of such a sentence is to protect the community from those who pose significant risk to others in an ongoing basis. For reasons I will come to, you are one of those people. But for the reasons I will also come to, I am not going to impose a sentence of preventive detention. In doing so, I would have had to take into account the pattern of serious offending that is disclosed by your history, the seriousness of the harm to the community caused by your offending, information that indicates a tendency to commit offences in future and the absence or failure of efforts on your part to address the causes of your offending, and the principle of

whether a lengthy finite sentence is preferable if it provides adequate protection.¹ If a sentence of preventive detention is imposed a minimum term of five years must also be ordered.²

[5] The basis for the Crown’s application in this case was your extensive criminal history which includes sexual offending over 14 years. Preventive detention is not precluded by the fact that the offence in question is not of the most serious kind. It is the pattern of the offending and the risk of future offending that is most important.

[6] In this case I have reports by a psychologist, Sarjeeta Sharma, and a consultant psychiatrist, Dr Ian Goodwin. These reports make worrying reading. Now 33 years old, you are a troubled man. You had a disrupted childhood. You have a low level of education, borderline intellectual ability, a history of drug and alcohol abuse. You present with complaints of auditory hallucinations. According to Dr Goodwin, you fulfil the criteria for anti-social personality disorder, poly- substance abuse. Although your mental health issues are not sufficiently serious as to constitute a mental disorder and do not appear to have played a part in this offending, there are very concerning aspects that arise from them. These include your anti-social attitudes, poor self-control, a sense of entitlement in relation to women, your tendency to react violently when relationships do not go your way, your lack of insight into the causes and effect of your offending. You have never engaged with community services to address your drug and alcohol abuse. You minimise the sexual offending that you have been guilty of.

[7] One of the report writers points out that without making meaningful gains from treatment, the risk of your offending again is high. That would mean a custodial sentence of sufficient term to allow mandatory intensive rehabilitative treatment to address your violent and sexual offending is recommended. Dr Goodwin assessed the risk of your future offending, particularly sexual offending, in the short to medium term as high. His final comment, which I think is very

_{insightful, is that, in his view, your developmental background and subsequent}

¹ _{Section 87(4).}

² Section 89.

development as an early adult indicate that you have very few appropriate social skills. The task for you is not rehabilitation, but basic habilitation.

[8] Mr McCord, that is all very complicated, I know, and if I was in your shoes I would not understand it. But what the doctors are saying is that you have a lot of problems and you have not done anything to address them and if you do not get some help you will offend again.

[9] I have been very, very concerned when I read these reports and I read your criminal history. Very concerned about the fact that you have not been motivated to get any help and very, very worried about the fact that you committed this offence while you were subject to an extended supervision order which was supposed to be something to stop you offending again. I have to say to you, you were very close today to being subject to a preventive detention sentence. In the end, I am conscious

of how similar this case is to the case of Bailey that your counsel talked about³ and

the comments that the Court of Appeal made in that case. And really, because of that, I have drawn back from the point of making an order for preventive detention. But do not under estimate the risk, Mr McCord, because the next time you offend and the next Judge that comes to sentence you is very likely to go down the path of preventive detention with your history.

[10] So I come then to what sentence I should impose today. The purpose in my sentencing you is to make you accountable for the harm that you have done to this elderly lady, to the community, to make you understand that this kind of offending cannot happen. I have to set out the principles that are set out in the Sentencing Act which include taking account of the seriousness of the offence – and I know this one is not as serious as others that you have committed – the seriousness of this compared to other kinds of offences, the need for consistency, the need for me to treat this case in the same way as other Judges treat similar cases, and the need for

_{me to impose the least restrictive outcome that is appropriate.}

³ R v Bailey CA102/03, 22 July 2003.

[11] In finding the right starting point I have thought about the other cases that your lawyer and the Crown’s lawyer have referred to.⁴ Having regard to the nature of the offending I take a starting point of six months’ imprisonment on count 1 and nine months’ imprisonment on count 2, uplifted on count 2 by three months to take it to a 12 month total imposed concurrently.

[12] But then I need to take account of your previous offending. You have, as I have noted, a very long list of previous convictions – over 150. You just seem to offend pretty consistently all the time you are not in prison. It covers everything from driving offences, minor drug offences, through to kidnapping and unlawful sexual connection. It is just a shocking record. For the purpose of sentencing on these charges I put less weight on the non-sexual offending and more weight on the fact that you have three previous offences for sexual offending, these being obscene exposure in 1999, indecent assault of a female over the age of 16 in 2003 and sexual connection by unlawful sexual connection with a person aged between 12 and 16 in

2005. I am going to increase that 12 months by another 18 months to reflect that very, very bad record.

[13] Having served the sentences for the 2005 offences, in 2010 you became subject to an extended supervision order and you were still subject to that order when you committed these offences which I have already mentioned. This is a very, very serious matter. The extended supervision order was put in place to provide the community with protection from you going out and offending again and it failed. This is a very serious matter and I am going to add another 18 months for that fact.

[14] That takes me to four years. There are no mitigating features that would justify reducing it. I apply a discount of 20 per cent to reflect the guilty plea that you entered after you were committed for trial. That will take the finite sentence to three years and three months. To be honest, it is not as high as I would like it to be

_{because I think you need the time in prison to get the help that you need.}

⁴ R v Hohaia CA221/05, 17 October 2005; R v Bailey; King v Police [2012] NZHC 1922; R v

Eraki CA73.03, 1 April 2003.

[15] The Crown is also seeking that if I impose a sentence of imprisonment, that I also impose a minimum term of imprisonment which I am able to do and which I am going to do because you will have understood from what I have said to you today that I think the protection of the community is a high priority in this case and I am going to impose a term of imprisonment of two-thirds of that term that I have imposed. That means you would have to serve at least two years and two months before you could be eligible for parole.

[16] Now Mr McCord, there is something else I have to do. You may have heard of the three strike rule. Indecent assault is a qualifying offence for three strike legislation. As a result, you are now subject to the three strikes law and I am required to give you a warning to explain what that is all about. What it means is that if you are convicted of any serious violent offences other than murder after this warning and a Judge imposes a sentence of imprisonment then you will serve that term of imprisonment without parole or early release. If you are convicted of murder after this warning then you will be sentenced to life imprisonment which will be served without parole unless it would be manifestly unjust, in which case the Judge must sentence you to a minimum term of imprisonment.

[17] I am sorry, I realise that that does not make any sense to you at all because we are not talking about murder today. But, you have just got to understand and you will get a written notice explaining that, and I think probably your counsel will explain as well, what the three strikes rule is all about.

[18] So, Mr McCord, you have had a very, very difficult life but you in turn have caused a lot of harm out in the community. You actually are a menace to the community. I am asking you, do what you can to sort out the things that are making you behave in this way. Find help in prison. When you get out find more help in the community, because the next time you offend in this way it is very likely that it will

_{be preventive detention. Stand down thank you}

P Courtney J