R v Thompson [2014] NZHC 1557 (4 July 2014)

Last Updated: 5 August 2014

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-087-000417 [2014] NZHC 1557

THE QUEEN

v

_{BLIGH LAWSON THOMPSON}

Hearing:	4 July 2014
Appearances:	Greg Hollister-Jones for the Crown Roger Gowing for the Prisoner
Judgment:	4 July 2014

_{SENTENCING NOTES OF MOORE J}

Introduction

[1] Bligh Lawson Thompson, you appear this morning for sentence having pleaded guilty on 28 April 2014 to:

(a) one count of abduction for the purpose of sexual connection; and

(b) one count of sexual violation by unlawful sexual connection (oral);

and

(c) one count of sexual violation by rape.

[2] Before the sentencing commenced, the Crown offered no evidence on Count

4 which alleges unlawful sexual connection by digital penetration. I discharged you on that count.

R v THOMPSON [2014] NZHC 1557 [4 July 2014]

[3] Abduction carries a maximum penalty of 14 years’ imprisonment. The other

two charges carry a maximum of 20 years’ imprisonment.

Factual background

[4] The Crown has filed an amended summary of facts which you signed this morning and, subject to specific reservations, agreed with. The summary sets out the circumstances and details of your offending which give rise to the charges on which you are to be sentenced. Several aspects of this summary are in dispute. These are identified in a memorandum of counsel attached to the summary. However the Crown does not seek a disputed facts hearing. Consequently, I do not take into account those parts of the summary. One exception is that is at the request of both counsel, before the sentencing commenced, I viewed video footage taken by way of CCTV on the night which depicts the events when the abduction commenced and I have been invited to make findings of fact based on what the video shows. I have done that. At this point, however, I turn to the facts which are undisputed.

[5] The victim is a 22 year old woman who, on the evening of 15 March 2013, had spent the evening socialising with friends and family at a bar in Opotiki. You were in the same bar but you did not socialise with the victim. However, when you left you were outside the bar when the victim left and were seen looking at her. She was a stranger to you.

[6] In the early hours of the next morning, heavily intoxicated she became separated from her friends and decided to walk home. It would normally have been a short five minute stroll.

[7] You approached her on your bicycle; you got off and you walked beside her. At this point she was on the outskirts of town by a bush-clad area near the Coast Guard building which was out of view from other houses and buildings.

[8] The Crown submits your claim that you and the victim were in the vicinity of that building in order to complete a drug deal is false. I point to the fact that no drugs were recovered and the Crown refers me to a similar explanation that you gave in 1995 in relation to your earlier sexual offending. While I am sceptical of this

explanation on your part, it is not a matter which I consider is necessary for me to resolve for the purposes of the present exercise. I do not believe it assists me on the question of premeditation as the Crown submits. There is also a dispute as to whether the victim was forced to walk to the Coast Guard building and I have found as a matter of fact that although you applied force to the upper body of the victim as you both approached the building, I am not satisfied to the required standard that the victim was detained against her will up until 2:40am when she was attacked.

[9] What is agreed is that 20 minutes after you approached the Coast Guard building you grabbed her, held her neck in a choke hold and you dragged her some metres before putting her on the ground. As part of the disputed facts hearing this morning the CCTV footage of this phase was played to the Court. It was a disturbing image which conveyed the force and violence involved in the attack in a graphic way which cannot be captured in words. With your hands under her arms, you dragged her to a grassy area some metres away where you dropped her to the ground.

[10] In the course of this phase of the attack the victim lost consciousness temporarily. She awoke to find herself lying on her back on the ground with you raping her.

[11] She attempted to resist by fighting back and gouging your eyes. You responded by placing your hand on her throat and squeezing to the point she was unable to breath. She lost consciousness again. When she came to, she was understandably too scared to resist you.

[12] After some time you moved off her. You pushed your penis into her mouth.

[13] Approximately an hour after placing the victim in a choke hold you can be seen on the footage returning to the area where you first grabbed the victim and picking up items that had dropped from the victim when you dragged her away. You made two trips and during these trips it seems you were not wearing pants.

[14] Twenty minutes after these trips you are seen rifling through the victim’s

handbag. You took her cellphone. By that time you had your pants back on.

[15] The duration of detention for sexual purposes, that being from when you first took the victim away until you are seen with your pants back on, was one hour and

46 minutes.

[16] You are seen again, wandering alone around the building 20 minutes after

rifling through the victim’s handbag.

[17] At around five o’clock that morning two fishermen in their vehicle arrived a short distance away. You left. Your victim got to her feet. She screamed for help, ran to the two men who helped her. The total time you were recorded as being with the victim was 2 hours and 46 minutes.

[18] When the Police found you a short time later, you told them that you and the victim had engaged in consensual oral sex and masturbation but no vaginal intercourse had taken place.

[19] The evidence and your pleas of guilty put the lie to that claim.

Victim impact statement

[20] Your victim suffered bruising and scratches to her neck, back and torso. Those injuries are likely already to have healed.

[21] But the emotional and psychological scars of what you did to her are much more enduring.

[22] Out of respect for your victim’s dignity and also in acknowledgement of the fact that you probably will have read her victim impact statement, I shall not refer to it in detail. It is, however, harrowing to read.

[23] The effects of what you did to your victim are as profound as they are unsurprising. She feels dirty. She has problems sleeping. Her relationships have

been affected. She suffers from flash backs and panic attacks. She no longer feels

safe. As she said herself, what you did has “affected [her] for the rest of [her] life.”

Personal circumstances

[24] You are now 48 years old. You have an extensive and eclectic list of previous convictions going back to 1980. One conviction, in particular, assumes special significance and I shall return to that later. You told the psychiatrist who examined you that you have been associated with the motorcycle gang “The Head Hunters” for about 25 years, although you denied being a patched member. The same report records that you have used illicit drugs in the past and have convictions for possession of cannabis. You have experimented with methamphetamine, although the extent of your use of that drug is unclear. You have a history of regular gambling but you said you did not believe it created any problems in your life. You reported having regular employment throughout your adult life and you said you had never encountered difficulties in finding work. You have a close relationship with your three sisters and their families.

Previous offending

[25] Your involvement with the criminal justice system began when you were 16. Between then and 1996 your offending, although prolific and frequently attracting terms of imprisonment, was relatively minor.

[26] However, in August 1996 you were convicted of rape following a jury trial in the Auckland District Court. You were sentenced to nine years’ and six months’ imprisonment. You were released on parole but then recalled for breaching the conditions of your parole.

[27] I have read the sentencing notes of the District Court Judge who presided at the trial and who sentenced you. The events giving rise to you being charged occurred on 17 September 1995. You were driving a car on Queen Street, Auckland and offered the victim a lift home. She was unknown to you. She was a stranger. However, instead of taking her to Greenlane where she wanted to go, you drove up the motorway insisting she should attend a party that you said you were going to.

You then left the motorway and parked on a gravel road where there were no houses. The victim repeatedly asked you to take her home but you refused. She tried to get out of the car. You grabbed her by the hair, dragged her out of the vehicle, threw her onto the ground and down a bank. After the victim pleaded with you, you took her back to the car and pushed her into the back seat, locking all of the doors. Despite the victim’s continuous protest, you began to kiss her and indecently assault her. You then had sexual intercourse with her in the back of the car following which you dropped her off at Greenlane Hospital. When you were interviewed by the Police, you agreed you had sexual intercourse but you insisted it was consensual.

[28] The parallels and similarities of the 1995 offending with the present are plainly evident.

Purposes and principles of sentencing

[29] In sentencing you I am required to take into account the purposes of the Sentencing Act 2002 which is the statute which governs sentencing in this country. The purposes are outlined in s 7. Of relevance, I am required to take into account the need to hold you responsible for the harm which you caused to the victim and the community. I must provide for the interests of your victim and denounce your behaviour and deter you and others from similar offending and I must protect the community.

[30] I am also required to consider the principles which are outlined in s 8 of the Act. Notably, I must consider the gravity of the offending, any information on the effect the offending has had on the victim and I must impose the least restrictive sentence that is appropriate.

Crown submissions

[31] The Crown has filed full, comprehensive and helpful submissions. The Crown Solicitor submits you should be sentenced to preventive detention with a minimum period of imprisonment of 10 years. Alternatively, the Crown submits that if I was to decide that a finite or fixed term sentence was more appropriate, the starting point should be in the order of 11 or 12 years with a two to three year uplift

for your prior sexual offending. The Crown also submits that any finite term should be accompanied by a minimum period of imprisonment of two thirds of the final sentence.

Defence submissions

[32] Mr Gowing, on your behalf, has also filed very full and helpful submissions and he has supplemented them orally this morning. He submits that there are certain features of your offending that are aggravating. Those which are accepted are the use of violence, the detention of the victim, the victim’s vulnerability and the harm caused to the victim. It is not accepted by Mr Gowing that the offending was premeditated.

[33] Taking into account these aggravating features, both counsel submit that the offending falls within band two of R v AM, ¹ with Mr Gowing submitting a starting point of nine to 10 years. He also acknowledges that an uplift is warranted to reflect your prior convictions and he suggests an uplift of 12 months.

[34] In respect of the guilty plea, counsel submits a discount of 10 per cent is appropriate.

[35] Both your counsel and the Crown agree that if a finite sentence is imposed, a minimum period of two-thirds of the full sentence is appropriate.

[36] Mr Gowing submits that a sentence of preventive detention is not required in the circumstances of your case. In reference to the factors under s 87(4) he submits that two offences of a similar nature 18 years apart do not establish a pattern. Further, no targeted sexual offender treatment programme has been completed. As a result he submits that a lengthy finite sentence with appropriate conditions is

_{preferable and would provide adequate protection for society.}

¹ R v AM (CA27/2009) [2010] 2 NZLR 2 750; [2010] NZCA 114; (2010) 24 CRNZ 540 (CA).

Pre-sentence report

[37] The pre-sentence report sets out your personal circumstances and your background. That report describes your criminal history as “lengthy and versatile indicating impulsivity and an inability to employ sound judgement”. The author states that you appear to have little regard for your victims and at no point in the interview did you articulate remorse or empathy towards your victim, notwithstanding the words that were addressed to the Court today. The report describes you as posing a high risk of reoffending and a very high risk of harm to others. Your core offending factors were assessed as being offending-related sexual arousal, drug abuse and distorted views towards women and your own sexual entitlement. You did, however, indicate a motivation to engage in offending programmes that may be appropriate.

Finite sentence

[38] I turn to whether the imposition of a finite sentence is appropriate in this case.

[39] The guideline case for serious sexual offending is the Court of Appeal’s decision in R v AM which sets out four bands. There, the Court identified a number of aggravating features which have a direct bearing on the appropriate starting point in your case. Relevant to the current offending are the following:

(a) Premeditation

The Crown describes your behaviour in the early hours of 16 March

2013 as “predatory”. Counsel argues that the victim was heavily intoxicated and you followed her when she was alone and separated from her friends on the edge of the town by a bush clad area. I am not satisfied that the offending was predatory in the sense that term is used in R v AM. There is insufficient evidence to establish in my view beyond a reasonable doubt that you followed the victim from the bar with the intention to commit these offences such that your conduct properly amounts to premeditation.

(b) Violence and detention

The Court of Appeal acknowledged that rape inherently carries a “mild level” of violence. The violent offending in your case was a good deal more than mild. You placed your victim in a choke hold, you forced her to the ground on two occasions and choked her to the point of unconsciousness twice. Your purpose was to subdue her to overcome resistance. You detained her for sexual purposes for nearly two hours.

The combination of the lengthy detention, the choking and strangulation, the associated violence is a serious aggravating feature of this offending.

(c) Degree of violence

There was both penile penetration and as accepted through your counsel this morning, full penile penetration, notwithstanding your attempts to mitigate it, as well as oral violation.

(d) Vulnerability

The victim’s high level of intoxication which is plainly apparent from the video footage we saw this morning and her isolation from others made her vulnerable to your offending and as Mr Gowing fairly acknowledged this morning, so too does the age difference between you and the victim. That feature too adds to her vulnerability.

(e) Harm to victim

You had unprotected sex which placed your victim at risk of pregnancy and sexual diseases. But more importantly are the effects on your victim. I have already summarised aspects of the victim impact statement. It is clear that you have caused long term psychological and social damage to your victim.

[40] On this analysis I am satisfied your offending falls towards the upper end of band two in R v AM. Band two of that case has a starting point range of of between 7 and 13 years.

[41] I have considered the cases to which I have been referred.² Applying these principles to the present, I am of the view that a starting point of 11 years’ imprisonment is appropriate to reflect the totality of the offending.

[42] In respect of your personal circumstances there are no mitigating factors apart from your guilty plea which I shall turn to shortly. In my view, an uplift is required to reflect your previous offending and I consider an 18 month uplift is appropriate. This leads to a provisional sentence of 12 years and six months’ imprisonment.

[43] Finally I must consider your guilty plea. You pleaded guilty on what would have been the first day of trial. While it is correct that your plea spared the victim the ordeal of having to giving evidence, its lateness meant that she was required to attend Court that day and prepare herself for trial. In her victim impact statement she said the lateness of your plea elevated the emotional stress on her. In preparing for trial she had to watch the CCTV recording which, understandably, having seen it myself, caused her great distress. However, the Supreme Court in Hessell v R has acknowledged that even very late guilty pleas will usually attract some of the

systemic and social benefits which flow from a guilty plea and support a discount.³

The credit given should reflect the benefits provided to the system. I am satisfied a

10 per cent discount for your guilty plea is appropriate.

[44] This leads to a final, finite sentence of 11 years and three months’

imprisonment.

[45] I accept counsels’ submission that if a finite sentence was imposed a minimum period of imprisonment of two thirds of the final sentence would be appropriate which results in a minimum period of imprisonment of 7 years and six

_months.

² R v Anderson CA 199/05, 2 November 2005, R v Morris [1001] 3 NZLR 641; (1991) 7 CRNZ 26 (CA), R v Takiari [2007] NZCA 273, Pakau v R [2012] NZCA 522.

³ Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607; (2010) 24 CRNZ 966 at [45].

Preventive detention

[46] Having fixed what I regard as an appropriate finite sentence, I must now consider preventive detention. Following your guilty pleas, the Crown made application in terms of s 87(3) of the Act.

[47] Preventive detention is a sentence of imprisonment for an indefinite period. If imposed you will be released only when the Parole Board is satisfied you no longer pose a risk to the community. The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the

safety of its members.⁴ A sentence of preventive detention can be imposed if I am

satisfied you are likely to commit another sexual offence if released at the expiry date of a finite sentence.⁵

[48] Section 84(4) of the Act sets out the five criteria I am required to consider in deciding whether a sentence of preventive detention should be imposed. These are:

(a) any pattern of serious offending disclosed by your criminal history;

and

(b) the seriousness of the harm to the community caused by the offending; and

(c) information indicating a tendency to commit serious offences in the future; and

(d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and

(e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

_{[49] I shall now consider each of these requirements.}

⁴ _{Sentencing Act, s 87(1).}

⁵ Sentencing Act, s 87(2).

Pattern of offending

[50] Although you have a lengthy and varied criminal history, there is only one previous conviction for sexual offending. That is the sexual violation by rape you committed in Auckland in 1995. Eighteen years have passed before you offended again last year. I need to take into account the fact that for 9½ years of that period you were, it seems, in prison. However, there is still a period of over seven years when you were at large in the community and did not sexually offend. In situations where there has been a significant lapse of time since previous relevant offending, a

sentence of preventive detention may be considered too severe.⁶

[51] On the other hand, the two incidents of offending are very similar. Both were opportunistic. Both involved strangers in the sense that both women were not previously known to you. Both involved serious sexual offending against young, intoxicated and vulnerable women. Both involved you taking your victim away and detaining them. Both involved multiple violations. Both involved you dragging your victims by the neck or hair. This similarity of offending separated as it is by a lapse of time measured in years, necessarily raises doubts as to whether I can be satisfied you will not re-offend on your release. As the psychological report records, the 18 year gap between the offences suggests “... a long standing proclivity for forceful sexual offending”.

Seriousness of the harm to the community

[52] Preying on vulnerable, intoxicated women, requiring them by force to accompany you and then sexual violating them undoubtedly causes serious harm to the community.

Information indicating a tendency to commit serious offences in future

[53] In considering this factor, it is necessary to refer to the psychiatric report and the psychological report which have been provided to the Court. I shall deal with

_{each of these in turn.}

⁶ R v Kaimoana, CA172/87, 17 December 1987.

Dr Majeed recorded that you have never been married but have been involved in a number of past relationships. Prior to the offending you were single and you are reported as saying that your sexual needs were met through casual relationships with women you had met in social places or from visiting massage parlours.

In your interview with Dr Majeed you denied the offending and said that the victim went with you to collect “a bag of crack” you were going to sell her. You explained that the CCTV camera which captured part of your offending showed you grabbing the victim but, in reality, you were actually attempting to grab her bag because she was not paying you. You told the doctor that you did not force your victim to have sex with you. This explanation lead Dr Majeed to conclude that there was a significant element of cognitive distortion and denial on your part in relation to your behaviour at the time of the commission of the offence.

Dr Majeed found no evidence of any major mental disorder, nor any evidence of delusions, abnormal perceptions or cognitive impairment. He concluded by saying that based on your developmental history, in particular your involvement with the youth justice system and extensive involvement with the criminal justice system, involving both sexual and non-sexual crimes, your risk of re-offending is significant and he placed you in a high risk group for sexual re- offending. Furthermore, he was of the opinion that the nature of your offending suggested you have limited or no regard for the rights of women in general and the victim in particular.

He recommended you be directed to a sex treatment programme, anger management and drug and alcohol counselling as part of whatever sentence is imposed by the Court.

Mr Joughin, the registered clinical psychologist who examined you on two occasions, described similar themes. He said you significantly minimised responsibility for your offending.

He noted you have 90 convictions and that in 2002, following your release from prison for your 1995 offending, you were re-imprisoned the following year. This conviction related to contravening a protection order and common assault whilst on parole. You were sentenced to two years’ imprisonment. The circumstances of this offending were that you apparently entered your ex-partner’s home, removed your clothes and entered the bedroom of her 17 year old daughter wearing only a t-shirt and boxer shorts. You placed your hand over her mouth.

Then, between 2005 and 2010, you accumulated a further 10 convictions for minor property, driving offences and resisting Police. To Mr Joughin, although acknowledging you dragged your victim around the corner, forced her to the ground and choked her, you maintained the offending was consensual, commenting:

Even though she was fighting ... nothing she told me or did

[indicated she] didn’t want to have sex with me.

Alarmingly, you laughed while recounting these events. You also minimised the offending. Mr Joughin reported that in his view these statements demonstrate your callous disregard for your victim, your self-focused perception regarding the offending and the consequences of it and a number of cognitive distortions regarding issues of consent and your entitlement to sex.

Mr Joughin stated that your sexual offending has followed an opportunist rape pathway and your offending has been maintained by the gratification of your sexual urges, your profound sense of

entitlement, your entrenched cognitive distortions regarding women and their availability to you as sexual objects and your personality traits including a lack of remorse or empathy, poor behavioural controls and impulsivity.

Overall, Mr Joughin concluded that you pose a high risk of further sexual offending and that your assessed risk is likely to endure in the long term. While sexual risk typically decreases with increasing age, your age at the time of the most recent offending indicates that the risk will persist longer than might typically be expected.

Mr Joughin noted your indication that you would not participate in treatment interventions in the latter stage of your sentence as you may not survive into advanced age given Maori mortality rates. Mr Joughin noted that treatment interventions occur at the latter stages of imprisonment.

Finally, Mr Joughin observed that should you engage in further sexual offending, it would most likely involve an unknown adult female who you would have met opportunistically. Based on your past offence history, you would be likely to choose to act on your impulsive desire for sex with little regard for the consequences or your victim’s rights and you would act in an intimidatory and aggressive way to achieve your goal.

[54] Those reports were based on a summary of facts slightly different to that you have been sentenced on today. However I am satisfied that the differences in the factual accounts would not materially influence the conclusions reached in the reports. While your degree of minimisation of the offending as described in the reports may not have been as evident as the authors reported given the summary, key assertions such as your suggestion you believed the victim was consenting continue to justify the conclusions by the authors of your minimisation of aspects of the offending. Despite this, and in any event, I place little reliance on the comments

relating to minimisation. It does not affect the other conclusions contained in the reports.

Absence of, or failure of, efforts by the offender to address the cause or causes of the offending

[55] In 2006 you had nine sessions with a departmental psychologist. You have completed Straight Thinking and Alternative to Violence courses. You have not completed a targeted sexual offender treatment programme. As the Crown has responsibly and fairly accepted, the Courts are sometimes reluctant to impose preventive detention where a prisoner has not had the opportunity to complete such a course.

[56] However, the Crown submits, and I agree, that this should not be a determinative factor in your case because you show no remorse for your offending, you have certain personality traits indicative of psychopathy which is a poor prognostic indicator for a successful outcome from a treatment programme and you have stated you will refuse to participate in programmes offered at the end of your sentence as you may not survive into advanced years.

[57] I do not accept that your expressions of remorse delivered this morning carry with them the sincerity I imagine you intended they would.

[58] Further, the mere fact you indicated your possible refusal to participate in programmes later in your sentence indicates a lack of sincerity in any expression on your part of a sincere desire to gain benefits from treatment. This is consistent with Mr Joughin’s conclusion that your motivation for genuine change is very limited.

The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[59] This principle speaks for itself. If society can be adequately protected by a finite, determinate sentence then a determinate sentence should be imposed rather than the indeterminate sentence of preventive detention.

[60] The question here is whether a finite sentence, in your case, 11 years’ and

three months’ imprisonment would provide adequate protection for society.

[61] In my view such a sentence would not provide adequate protection even with the ongoing monitoring conditions of the sort referred to by your counsel in oral submissions. The risk factors which I have already discussed combine to paint a picture of an offender with limited insight into his offending and with a high risk of re-offending.

Conclusion

[62] Weighing all of the factors above, I am satisfied you are likely to commit another offence on release if a finite sentence was imposed. My reasons are as follows:

(a) First, the psychiatric report, the psychological report and the pre- sentence report all indicate that there is a high risk of sexual re- offending. Of particular concern is your proclivity for this sort of offending has extended beyond the age when most other offenders have desisted.

(b) Secondly, it is evident you demonstrate a profound lack of sincere remorse and insight into your offending.

(c) Thirdly, you have demonstrated an ambivalent attitude towards treatment interventions. On the one hand you express a motivation to engage with possible treatment and yet on the other, you have indicated your reservations about doing so. This, as well as other factors, demonstrates you possess little motivation to change.

(d) Fourthly, your psychological assessment indicates you have certain personality traits indicative of psychopathy. This is a poor prognostic indicator for a successful outcome from a treatment programme.

[63] Overall, it is clear in my view that you pose a serious and ongoing risk to society and women in particular. I am not satisfied this risk would be adequately reduced by a lengthy determinate sentence with conditions given the statutory requirement to protect the community from those who pose a significant and an ongoing risk to the safety of its members.

Minimum term of imprisonment

[64] Under s 89 of the Act, I sentence you to preventive detention. I must also order that you serve a minimum period of imprisonment which may not be less than five years. In setting this term, I must have regard to the minimum term necessary to reflect the offending and to protect the public. I consider that the minimum term to achieve both of these purposes is five years.

[65] It will then be for the Parole Board to determine if and when any risk to the members of the community is sufficiently modest to justify your release.

Sentence

[66] Mr Thompson, please stand.

[67] On the charges of sexual violation by rape, unlawful sexual connection and abduction for the purpose of sexual intercourse, you are sentenced to preventive detention. I impose a minimum term of imprisonment of five years on each of those charges.

_{[68] Stand down.}

Moore J

Solicitors:

Crown Solicitor, Tauranga

Gowing & Co, Whakatane