R v McGrath [2014] NZHC 1066 (19 May 2014)

Last Updated: 4 June 2014

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-043-000914 [2014] NZHC 1066

THE QUEEN

v

_{JOEL EVAN McGRATH}

Hearing:	19 May 2014
Appearances:	C E Clarke for the Crown P M Keegan for the Defendant
Judgment:	19 May 2014

_{SENTENCING REMARKS OF PANCKHURST J}

Note: this is a redacted version of the sentencing.

Introduction

[1] Mr McGrath, this is a complicated sentencing and it is going to take me some time to impose the sentence in your case. You can remain seated and I will tell you when I want you to stand up. Do you understand?

[2] You are for sentence today in relation to 10 charges of sexual violation by unlawful sexual connection, four charges of attempted sexual violation and seven charges of indulging in sexual conduct with a child under 12 years of age.

[3] You pleaded guilty to those crimes in September of last year, as soon as it was reasonably open for you to do so. Subsequently, after a number of expert

R v McGRATH [2014] NZHC 1066 [19 May 2014]

reports had been obtained, a District Court Judge declined jurisdiction in April of this year and you were committed to this Court for sentence.

[4] Your crimes were committed against two young people. One is X, who was six to seven years of age at the relevant time of the offending against him, which was from November 2011 to May 2013. The second complainant was Y, who was aged

11 years at the time, and the offending in her case was confined to a period of weeks in April through to May of 2013. Their names are automatically suppressed, as indeed are any details capable of leading to their identification. You, I note, are 19 years of age now. You were 17 or 18 years of age at the time of this offending.

The factual background

[5] The offences were committed in the home [...] these two complainants. On account of Z’s need to work there were regular occasions when you alone were in the house with the complainants. Indeed, you were left in charge of them and responsible for their care. Instead of caring for them you systematically abused them over a period of time. Y disclosed what had happened to her sometime in May last year. She also participated in an evidential interview in which she was able to outline the extent and nature of the offending. You were then interviewed and, to your credit, you did admit what had occurred between yourself and X.

[6] Mr McGrath, I am not going to go into the full details of the offending itself; they are set out graphically enough in the summary of facts. It included induced masturbation of yourself by X and also masturbation of him. It included oral acts, sexual violation by your putting your penis into the mouths of both of the complainants and it involved also digital penetration of both the anus and the vagina. If that were not enough, it involved you also using your tongue in relation to Y. There were also a number of episodes of indecent touching, and the like and also the further serious charges of attempting to penetrate both the anuses of the complainants and also in Y's case, her vagina. In order to do this, in order to secure their compliance, you offered them rewards. For example, an “ice pop" if they co operated. You also told them not to tell, or they would be in trouble if they did.

[7] When you were interviewed by the police you conceded there were probably as many as 25 separate occasions when you abused X. Fortunately, in the case of Y there were much fewer occasions involved over a lesser time span. It may well be that the true scope of your offending, or the extent of your offending, particularly in relation to X, remains unknown.

Victim impact statement

[8] There is a single victim impact statement provided by Z on behalf of the complainants. In her assessment Y has not changed as a result of this conduct and she has also said that she thinks there are no signs of adverse effects upon this young girl. However, in relation to X, Z has said that his behaviour has definitely deteriorated, that his schooling has suffered and that generally there are very obvious signs of the impacts upon him.

[9] Reading between the lines, it is obvious to me that Z was torn when she provided the input for that victim impact statement. On the one hand she is obviously concerned about what has happened to the complainants, but equally she was concerned for your situation and your survival in a prison environment.

[10] I note that in the pre-sentence report [...] was spoken to, someone with whom you have had a lot of contact and who has cared for you at times over the recent past. She described the likely impact upon the complainants in this way. She said, “I cannot imagine what damage has been caused to them.” You have also acknowledged to one of the report writers that you have probably scarred them for life. I agree. Regardless of what can be seen in this case by Z, it is almost inevitable that the effects are going to have an impact for many years and that they may well be profound.

Preventive detention

[11] Mr McGrath, as no doubt you have been told by your counsel, you must be sentenced to a lengthy term of imprisonment. However, the Crown, for the reasons which Ms Clarke has just emphasised this afternoon, seeks a sentence of preventive detention in your case. That means that I am required to consider two things, two

questions: whether you pose a significant and ongoing risk to the safety of the community and whether you are likely to commit further sexual offences on release from a prison sentence. Those two questions determine whether preventive detention is an available and suitable sentencing option. I will need, therefore, to assess the appropriate period of imprisonment to be imposed for this offending, because only then will I be in a position to assess what you are likely to be like and what level of risk you are likely to pose at the end of a prison sentence.

[12] Another question that I must consider is your age. You are very young to be in this situation. That, too, is an influential factor and one that I must take into account, both in determining the appropriate prison sentence and also in determining whether instead of a prison sentence for a fixed term you should be sentenced to preventive detention.

Personal circumstances

[13] Before I turn to these three questions, however, it is necessary to refer to your personal circumstances. I have a pre-sentence report, a report from a psychiatrist, Dr Lehany, dated in December 2013; and two reports from clinical psychologists, Mr Neville Trainor and Renate Bellve-Wack, prepared in March 2014 and May of this year, respectively. These contain a wealth of information about you and your background. I will not attempt to summarise that material, because it is not possible to do so in the course of sentencing remarks. Instead, I intend to refer to some salient features, first of all concerning your personal history and then concerning some of the key assessments which are contained in the reports about you and about the likely risk that you will pose in the future.

[14] With reference to your personal history, you were born, I note, in November

1994. You lived initially with both your parents, until they separated and your father moved out of the home. You were then about three years of age. Your mother became the custodial parent, but you had weekend contact and stays with your father. When you were about five you complained that you had been the victim of sexual abuse yourself. The allegations related to your father. There was insufficient

evidence for charges to be laid, but you have continued to assert that you were sexually abused to the various report writers and others.

[15] Some time later there were behavioural problems exhibited by you, including of a sexual nature. When you were about eight years of age, you [...] went into foster care initially with a relative, then into the care of your maternal grandmother. By this stage, as I understand it, you were subject to the control of social welfare and when you were about 12 you were enrolled in a health camp, again as a result of behavioural issues which had surfaced, including sexual misbehaviour directed to young people. A safety plan was to be put into place and this included your participation in a SAFE Programme.

[16] However, things did not work out well, and when you were 13 years of age there were further concerns about your conduct towards Y and as a result of that when you were 15 you were sent to Christchurch for specialist residential treatment at a residential facility. That facility, Mr McGrath, provides treatment to adolescents who pose a high risk of sexual abuse to others. You remained there for about

15 months receiving intensive therapy. As you approached 17 years of age you were returned to the North Island, because the facility could not keep you any longer. Initially, you were in foster care and then you returned to the care of your mother. It was that which led to this further offending while you were 17 or 18 years of age, this offending against the present complainants, until it was unearthed in May last year.

[17] Turning then to the assessments of you and the risk that you might pose into the future, there is first of all the report of Dr Lehany, the psychiatrist. That report is important, because it confirms that you do not suffer from a mental illness. Psychiatric treatment is not indicated in your case. The doctor is pessimistic about your risk profile. He considers that you pose a clear risk of future offending. He recommended that you should be assessed by clinical psychologists in order to determine what psychological treatment could be afforded and he also ventured the opinion that you will require long-term supervision, once released back into the community.

[18] The first of the psychologists to assess you conducted a series of what we call static and dynamic tests in relation to risk. He ultimately confirmed that you are “at high risk of committing further serious sexual offences in the next five to 15 years based on known recidivism rates”. He was in no doubt that you require intensive rehabilitation, probably at a specialist facility such as Kia Marama or Te Piriti. But, he thought that you are probably amenable to change, although that may be very much an open question.

[19] Mr Trainor also expressed the concern that your thinking, or cognitive functioning, could pose an impediment to treatment and that it should be further looked at. That led to a referral to the other psychologist, Ms Bellve-Wack. In particular, a formal assessment to determine whether you suffered from fetal alcohol syndrome was made. In the event, it was not established that you do suffer from that condition, although it is perhaps likely that you suffer from alcohol pre-natal exposure, as well as other adverse influences, which have significantly affected your development.

[20] Further psychological testing showed that you have the intellect, and probably the capacity as well, to participate in treatment. Whether, however, you have the strength and stickability, if you like, and the motivation to do so is another matter, in part because you have what is termed “a borderline personality disorder with strong anti-social and narcissistic traits”.

[21] Finally, and this is an important issue, the psychologist talked about brain development in people of your age. The brain continues to develop throughout adolescence and into early adulthood. Brain development is not complete until about the mid twenties. In particular, this is in the third report, and I quote:

Full development of the pre-frontal cortex, which is not concluded until the mid twenties is necessary for what has been termed ‘cognitive maturity’. This includes mature judgement, i.e the ability to anticipate future developments and the long-term consequences of one’s actions, higher level moral reasoning and abstract thinking as well as balanced planning and decision making and conforming one’s behaviour accordingly.

What that means in simple terms, Mr McGrath, is that you are still immature. Your brain still has room for development and, hopefully, as a result of that you will have

a better appreciation of the consequences of your actions and the impact on others, as well as the ability to better control yourself as a result of better decision-making.

The appropriate prison sentence

[22] What then is the appropriate prison sentence in your case? Mr Keegan felt constrained to accept that a sentence as high as 16 years, by way of a starting point, was appropriate. He then urged the view that you should be allowed a significant deduction from that starting point because these are your first convictions of any kind, despite the misconduct that has led to the various responses to which I have already referred. He asked me to also take into account your co-operation in admitting what you had done to X. He relied as well on your age of 19 years, as that is always an important factor in sentencing, and also to what he termed your mental, or psychological, impairment. All of those factors, he argued, warranted a reduction of 40 per cent from the starting point. And, finally, Mr Keegan submitted that you were entitled to a reduction of 25 per cent on account of your pleas of guilty entered at the first reasonable opportunity. That would result in an end sentence of seven to seven and a half years.

[23] The Crown likewise suggested that the starting point should be in the range of 14 to 16 years’ imprisonment. However, it was not accepted that your personal circumstances warranted as much as a 40 per cent reduction, given the previous conduct, particularly involving Y to which I have already referred, and the fact that you have had help in the past but nonetheless have faltered and re-offended in this way as soon as the opportunity presented. On the other hand Ms Clarke accepted that you were entitled to a 25 per cent reduction from the resulting sentence for your guilty pleas. And so she arrived at an end sentence within the range of eight and a half to 11 years.

[24] The lawyers have also drawn to my attention a number of cases involving offending broadly similar in some instances to yours. I do not propose to make reference to those cases save for one, which I think is the closest in point to this case. It concerned a young person called Daubeck, who was sentenced by Ellis J in

September of last year.¹ I have considered that decision because in many respects it is quite similar to your case.

[25] In my view the appropriate starting point for your sentencing, Mr McGrath, is a sentence of 14 years’ imprisonment. I do regard your personal circumstances that I have referred to in summary as warranting a significant reduction, your age, or immaturity, in particular. And I think that reduction should be of the order of

20 per cent or two years and eight months from the 14 year starting point. A further reduction of a quarter, 25 per cent, is approximately three years, producing an end sentence, rounded down to a little, of eight years’ imprisonment.

Is preventive detention indicated?

[26] In my view, if a fixed term sentence is to be imposed, that is the appropriate term: eight years’ imprisonment. But I have got to go on and consider the further question, should you be sentenced, as the Crown argues, to preventive detention? You are eligible for that sentence, given your age and the offences for which you are to be sentenced.

[27] I must also consider a number of statutory criteria, or considerations, before deciding whether preventive detention is the appropriate end result. The first is whether there is a pattern of sexual offending in your case. There is not in relation to past offending, but this was a course of conduct which went on for an extended time and which does, in my view, represent a pattern sufficient to show that you are a sexual deviant and somebody who poses a risk to particularly young and vulnerable children.

[28] The second matter is the seriousness of the harm that you have caused to date, and could cause in the future. Your offending has been directed to young, vulnerable children, and I am sure that you have already caused great harm and that you do have the potential to do it again in the future, and it may not be confined to

_{young children.}

¹ R v Daubeck [2013] NZHC 2494.

[29] The third matter I have to consider is whether there is a high risk that you will offend; that you will commit further serious offences. The psychologists have conducted the tests to which I referred earlier and concluded that you are a person who has a high-risk profile. The existing pattern of offending, the fact that you committed these crimes soon after you had been released from residential care, also indicates the extent of the risk in your case.

[30] The fourth matter is whether there is evidence of a failure to respond to treatment to date. Well there is, Mr McGrath. You have been treated in the past; extensive resources have been committed to your care and to attempts to rehabilitate you, but without success. That is a factor, however, where I must bear in mind your present age and immaturity. I also think it is relevant that your living situation, including the fact that you were left with the care of the complainants, was something which must be taken into account, because it was plainly very unwise that you were ever left with that responsibility in the first place.

[31] The final matter that I am bound to consider is whether a lengthy prison sentence is preferable if it would provide adequate protection for the community. Mr Keegan in effect said that this was an important factor, because you have never been to prison and that prison may well have a significant deterrent effect on you, so that having tasted prison you may be much less inclined to offend again in the future.

The end sentence

[32] Can you stand up please. Ms Clarke, in her submissions this afternoon, has made a strong case for you to be sentenced to preventive detention. She was right in saying that preventive detention is not a sentence of last resort. It is reserved for people who pose a serious and ongoing risk to the community and there are a number of indicators that would place you squarely within that category. But for your age, I would have sentenced you to preventive detention, and if you come back before this Court again in relation to sexual offences I think it almost inevitable that that is the sentence you will receive. It is a lifetime sentence because you can be recalled at any time in relation to this sort of offending.

[33] I have concluded, by a narrow margin, that a fixed prison sentence should be preferred. As I have said, I am influenced by your age and by the circumstance that over the next several years you should undergo a developmental period when your thinking, and judgement, will improve as a result of increased maturity.

[34] The sentence, Mr McGrath, is that you will serve a sentence of eight years’ imprisonment in relation to the sexual violation charges, and also the charges of attempted sexual violation. In relation to the charges of sexual conduct with children, you are sentenced to four years. All of the terms are concurrent, so that the end sentence remains eight years’ imprisonment.

[35] I am in no doubt that a minimum period of imprisonment is also required in your case. This is required to hold you to account, to denounce what you have done, hopefully to deter you from ever doing this sort of thing again, but most of all to protect the community – by that I mean to provide a sufficient period for you to be in prison so that you can mature and receive the treatment that you so much require.

[36] I fix that non-parole period at five years’ imprisonment. That does not mean that you will be released after that period. Your release will be determined by the Parole Board and they will determine when you should come out of prison based on the risk that you pose to people in the community. So the onus is on you to take every advantage of every opportunity for treatment which comes your way.

Three strike warning

[37] I must also give you a warning. You will have heard of the three strike legislation. These offences are of a kind where you must be given the first of the three strike warnings. It is this: if you are convicted of further serious violent offences, and that includes the sorts of offences that you have just been sentenced for, any sentence of imprisonment you receive will be served without parole or early release. Were you convicted of murder, you would receive a life sentence without parole. You will be given that three strike warning, Mr McGrath, in a written notice and you will be able to read it and understand it rather better than you can from this brief description.

Suppression

[38] [Discussion with counsel over issue of name suppression]. It is my view that the appropriate course is that the name of the defendant is not suppressed, subject, obviously, to what has already been said about suppression of the names of the complainants and anything capable of leading to their identification [...].

C & M Legal, New Plymouth

P M Keegan, Barrister, New Plymouth