R v Thompson [2014] NZHC 1683 (15 July 2014)

Last Updated: 1 August 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-001618
CRI-2013-092-005015
CRI-2013-092-005016

CRI-2014-092-004446 [2014] NZHC 1683

THE QUEEN

v

_{MERVYN DANIEL THOMPSON}

Hearing:	15 July 2014
Appearances:	Robin McCoubrey for the Crown Stephanie Cowdell for the Prisoner
Judgment:	15 July 2014

_{SENTENCING NOTES OF MOORE J}

Introduction

[1] Mervyn Daniel Thompson, you appear this morning for sentence having pleaded guilty on 13 May 2014 to:

(a) three charges of sexual violation by rape;

(b) six charges of sexual violation by unlawful sexual connection; and

(c) one charge of attempting to pervert the course of justice.

[2] Sexual violation, whether by rape or by other sexual connection, carries a maximum penalty of 20 years imprisonment. The charge of attempting to pervert the

_{course of justice carries a maximum penalty of seven years imprisonment.}

R v THOMPSON [2014] NZHC 1683 [15 July 2014]

Factual background

Sexual violation

[3] The agreed summary of facts sets out the circumstances and details of your sexual offending which gives rise to the nine charges of sexual violation. These took place across three separate events occurring on 9 May 2010, 9 June 2012 and

6 February 2013. I shall deal with each in turn. (a) Incident 1 - 9 May 2010

In the early hours of the morning of 9 May 2010 a 30 year old sex worker was working at a car park at South Mall. You spoke with her. She agreed to have sex with you. You took her to an area nearby where you pulled a knife and said to her, “Don’t scream or I’ll slit your throat”. You demanded that she take her clothes off and when she took what you thought was too long to comply with that instruction, you punched and kicked her. She was understandably terrified.

You performed oral sex on her while holding a knife against her thigh. You raped her while you held the same knife to her upper chest and throat. You undertook this manoeuvre with such force you choked her with your left hand causing her to lose consciousness. You forced her to submit to other acts, including oral sex, before raping her again.

When it began to rain you released your grip sufficiently for her to get up and escape. She ran away screaming and was rescued by a security guard who gave chase but failed to catch up with you.

(b) Incident 2 – 9 June 2012

At about 11:00 pm on 9 June 2012 a 22 year old sex worker was at South Mall. She was approached by you in your car. After a brief discussion she agreed to have sex with you. You drove her to a car

park at the Manurewa Community Pools. When you arrived, you pulled a knife on her and demanded that she remove her clothes. Fearing for her life she obliged.

You then forced her to perform oral sex on you before raping her. All the while you were holding the knife and pressing it against her body. When you had finished you dropped her back at the Mall.

(c) Incident 3 – 6 February 2013

At about 8.30 pm on 6 February 2013 a 47 year old sex worker was working on the streets in Papatoetoe. You approached her in your van and following a brief discussion she agreed to have sex with you. She got into the van and you drove her to the car park at the Outreach Church. You and your victim moved to the back of the van where you produced a knife and held it to her throat. You pulled out a black rubber noose. Your victim, fearing for her life, hid her underwear under the seat in the hope that it might provide evidence at some later date.

You raped her, again holding the knife against her throat throughout. She thought she was going to die. You then demanded that she give you oral sex. She submitted. You then raped her again.

Finally, you apologised to her for not having any money and dropped her back from where you had picked her up.

[4] To the police you declined to comment in relation to the first two sexual attacks. In relation to Incident 3 you admitted you had sex with the victim but claimed you had an argument with her when you had not paid.

Attempting to pervert the course of justice

[5] After you were arrested for the crimes I have described above, you were remanded in custody at Mt Eden Prison. While you were there, sometime between

27 July 2013 and 14 February 2014, you and an associate arranged for three letters to be delivered to the mother of the victim in Incident 2. The letters were addressed to the mother, her daughter and the victim in Incident 1. The letter to the mother purported to be sent from someone who she knew in prison and instructed her to give the other two letters to the victims. Amongst other things, your letter warned her against you, describing you as dangerous and having previously been convicted of manslaughter. Threats of harm were made to her family if the two victims did not sign the letters.

[6] The two letters to the victims contained pre-written statements purporting to be retractions of the statements they had given to the Police. In both cases the statements recorded that the victims could no longer remember who had raped them, nor could they describe their attacker. Both said they did not wish to give evidence at trial. Each of the addressees was instructed to sign the retraction and was told they should ensure that the police could not find them during the trial.

[7] When the letters were forensically examined they were found to be in your handwriting. Your DNA was found on the envelopes.

Victim impact statement

[8] Each of your victims has furnished a victim impact statement.

[9] Out of respect for your victims’ dignity and also acknowledgement of the fact you will probably have read the victim impact statements I shall not refer to their contents in detail. They do, however, make harrowing reading.

[10] Your first victim, apart from the physical trauma which took months to repair, has, not surprisingly, been left with chronic issues of anxiety and depression. On the night of the attack she believed, for good reason, you were going to kill her.

[11] Your second victim suffered similar levels of harm. Apart from the obvious physical injuries, the other consequences of your offending are as predictable as they are enduring. She, as with her predecessor, believed she was going to die that night.

[12] The third victim also received physical injuries and now requires ongoing osteological treatment. She has also been scarred emotionally and socially. The effects, she predicts, will be with her for the rest of her life.

Personal circumstances

[13] You are now aged 50. The pre-sentence report records that you were attracted to the Black Power Gang when you were in your mid-teens, becoming a patched member when you were 18 and remaining connected with that gang for the next 17 years.

[14] Although you have a reasonably extensive list of previous convictions there are only two in respect of which you served lengthy terms of imprisonment. These were your convictions for manslaughter in 1990, for which you were sentenced to imprisonment for six years and two months, and then in 1994 you were convicted of aggravated robbery and were sentenced to five years imprisonment.

[15] You told the probation officer it was during this latter period of imprisonment that you decided to turn your life around following the death of your parents. On your release you apparently returned to Taranaki and handed in your gang colours before relocating yourself and your young family to Auckland. You recognised that if you did not do this your own sons were likely to follow in your footsteps.

[16] It seems that on your return to Auckland you did well. You secured a good job and remained in stable employment for the next 11 years, eventually becoming a shift supervisor and then, later, taking promotion with another employer to become an operations manager. You and your family flourished but then a number of personal tragedies converged on your life which lead you to leave your job and begin abusing drugs and alcohol which, in turn, lead to various health issues some of which plague you today as you enter your sixth decade of life.

[17] In relation to the present offending you told the author of the pre-sentence report that you could not recall committing the offences and this was repeated by your counsel this morning. You attributed this to your substance abuse. It is notable that you initially denied your offending but changed your pleas to guilty when the

DNA evidence proved conclusively you were responsible. The Crown points to the fact that the letters themselves which formed the basis of the perversion charge were written sometime after the offending; indications the Crown says of a lack of remorse.

[18] You presented to the probation officer as motivated to complete an Adult Sex Offenders Treatment Programme. You expressed regret and made comments which indicated you felt some degree of empathy towards your victims. I note you told the probation officer that you could relate to the victims’ distress “because I am a father to daughters and grandfather to granddaughters I can comprehend what would happen if it happened to my girls” and that is something you repeated in the letter you handed up to me through your counsel this morning.

[19] It is also apparent that you recognise and express guilt around the adverse effects your offending has had and will continue to have on your own family.

[20] Your risk of re-offending is assessed as high on the basis of the nature of the offending and the fact that you are, at present, untreated.

[21] The probation officer noted this risk may be mitigated once you have been able to complete the interventions discussed with you, particularly the Adult Sex Offenders Treatment Programme. Your risk of harm to others is also assessed as high.

Purposes and principles of sentencing

[22] In sentencing you I must take into account the purposes of the Sentencing Act

2002. These are outlined in s 7. Of relevance is the need to hold you responsible for the harm you have caused to your three victims, to denounce your behaviour and deter you and others from similar offending and to protect the community.

[23] I am also required to consider the principles outlined in s 8 of the Act. Notably, I must consider the gravity of the offending, the desirability for consistency with appropriate sentencing levels and the need to impose the least restrictive sentence that is appropriate.

Crown submissions

[24] The Crown has filed full and comprehensive submissions and has referred me to a number of relevant cases. Mr McCoubrey has supplemented these orally and I thank him for his considerable assistance.

[25] The Crown submits that on the Court of Appeal authority of R v AM¹ a starting point in the range of 16 to 18 years is appropriate for the sexual offending. In reaching that figure the Crown has referred me to the various factors set out in AM and the number of cases mentioned in that decision which assist in the exercise of assessing culpability. I shall return to discuss those.

[26] The Crown submits a 2 year uplift for the charge of attempting to pervert the course of justice should be given.

[27] From that the Crown submits a discount of 15 to 20 percent is appropriate to reflect your guilty pleas. The Crown suggests there should be no uplift given your last violent offending was in 1993. Similarly, the Crown submits that no discount should be given for remorse for the reasons I mentioned a moment ago.

[28] This leads to a total starting point in the range, the Crown says, of 18 to 20 years imprisonment.

[29] Finally, the Crown submits that a minimum period of imprisonment should be imposed of 10 years or two thirds of the finite sentence, whichever is the lesser.

Defence submissions

[30] Ms Cowdell on your behalf has filed economic submissions which I found focused and helpful. She submits that a starting point for the sexual offending should be in the range of 14 to 16 years. She submits an uplift of no more than one year is appropriate for the charge of attempting to pervert the course of justice although she accepts these charges should attract a starting point of less than four years, suggesting it should be three years imprisonment.

[31] She submits you should enjoy the maximum discount of 25 percent for your guilty pleas on the attempt to pervert the course of justice and should be given “some discount” in relation to the sexual offending although she does not nominate at what level.

[32] On the question of a minimum term of imprisonment she submits that while it may be appropriate it should not be more than eight years given your age and health.

Sexual violation charges

[33] In reaching an appropriate starting point I am obliged to consider the various aggravating and mitigating factors set out by the Court of Appeal in R v AM.²

Assessing those culpability assessment factors I regard the following as requiring consideration.

Planning and premeditation

[34] Your offending displays a degree of planning and premeditation. I do not accept the defence submission that you acted on impulse because you did not have enough money to pay for the services of prostitutes. It cannot be ignored that you carried a knife which you used from an early stage in each of the three occasions. Your conduct was aggressive and violent throughout. It is simply incredible, in my view, that you ever had any intention of paying your victims. Your purpose was to attack and sexually violate each of your victims without any consideration of their rights and wellbeing.

Violence

[35] While R v AM recognises that violence is inherent in any act of sexual violation, the levels of violence which you deployed were very considerable.

[36] Although in none of the cases you inflicted actual physical injury with the knife, in each case the knife was used in a highly aggressive and threatening way.

[37] In every case you left your victims physically injured although the degree of physical injury varied. The emotional harm and trauma is plainly evident from the victim impact statements. In the first incident on 9 May 2010 you choked the victim to the point she lost consciousness.

[38] All of the incidents display levels of violence well in excess of the inherent.

Vulnerability

[39] Both the Court of Appeal³ and this Court⁴ have recognised that street workers are vulnerable by virtue of their profession.

[40] As was the case with each of your victims in this case, they worked at night and on their own. It is a necessary aspect of their work that they must be prepared to go with strangers to isolated areas. It is implicit in what they do and where they do it they must be able to repose a level of trust and confidence in their customers.

Harm to victims

[41] All three victims suffered a level of physical harm to a greater or lesser extent. The injuries to the first victim were the most serious. The Court of Appeal in R v AM observed that if the offending involves unprotected sex this should be taken into account. With the exception of your third victim, you did not use a condom and even on that occasion you removed it prior to completing the offence.

Degree of violation

[42] Each of three incidents involved more than one rape and other forms of sexual violation. On all occasions you forced your victim to perform oral sex on

_you.

³ _{R v Marsters (CA 269/05, 29 November 2005) at [25] and [30].}

⁴ R v Waihape HC Christchurch CRI-2005-009-14252, 17 August 2006 Chisholm J at [21].

Scale of offending

[43] The sexual offending involves three sets of discrete offending in 2010, 2012 and 2013.

[44] In assessing the appropriate starting point I propose to focus on the 9 May

2010 offending which, of the three, I regard as the most serious given the heightened levels of violence. I will then uplift that starting point to reflect the other offending.

[45] Having regard to the cases referred to me I consider the index offending falls within the upper range of band 2 of R v AM and that a starting point of 12 years is appropriate.⁵ I consider an uplift of four years properly reflects the other two episodes of similar sexual offending in 2012 and 2013.

[46] This leads to a final starting point for the sexual violation charges of 16 years’

imprisonment.

Attempting to pervert the course of justice

[47] Both counsel have referred me to the relevant authorities.⁶ There are no tariff cases for this type of offending no doubt reflecting the variety and range of conduct which can be captured under s 117 of the Crimes Act 1961. Your offending contains numerous aggravating features, most notably the high level of premeditation, the threats of violence contained in the correspondence and the number of victims involved. While it could never be said that the offending was sophisticated and it was almost inevitable that your attempts would end in failure and plainly they did as your presence in Court today underscores, I do acknowledge and accept your counsel’s submission that the level of deception in your case is less than in Kumar.

[48] Overall, I am satisfied that a starting point of three years’ imprisonment is

_{appropriate for this offending.}

⁵ _{R v Morris [1991] 3 NZLR 641; (1991) 7 CRNZ 267 (CA); R v Tipene [2009] NZCA 343.}

6. R v Churchward CA 439/05, 2 March 2006, at [14]-[15]; R v Kumar [2012] NZHC 2290; HC Auckland CRI-2011-092-11460, 6 September 2012; Kumar v R [2014] NZCA 116; CA575/2012,

2 April 2014; R v Goldberg HC Auckland CRI-2004-090-002122, 30 November 2004.

[49] Furthermore, because the offending was discrete and designed to avoid conviction on the sexual violation charges, the term of imprisonment for the attempt to pervert the course of justice should be cumulative on the sexual offending.

Aggravating and mitigating features

[50] I now turn to consider the aggravating and mitigating factors which are relevant to your personal circumstances.

Previous offending

[51] Although you have three previous violent convictions, the most recent was in

1994 when you were sentenced to five years’ imprisonment for aggravated robbery. Your pre-sentence report records that after this conviction you turned your life around and your list of previous convictions reflects that. In all the circumstances I accept the Crown’s responsible and fair submission that no uplift is appropriate for your previous offending.

Remorse

[52] While acknowledging your expressions of regret and remorse, the Crown submits that these are under cut by your attempts to pervert the course of justice by trying to dissuade your victims from giving evidence through the use of threats.

[53] Despite this I am satisfied from the pre-sentence report that you have some level of insight and empathy towards your victims and the level of harm you have caused these three women. You do not appear to have expressed remorse for your attempt to pervert the course of justice. But I have read the letter which you handed to me via your counsel this morning and it does record a degree of insight into the effect your actions have brought not only on your victims but your victims’ families as well as your own family and you acknowledge as a father yourself of three daughters and a grandfather to five, you do comprehend the harm that you brought on your victims.

[54] In all the circumstances I am satisfied a modest discount of five per cent on the sexual violation charges is appropriate to reflect your remorse.

Guilty plea

[55] You entered your guilty pleas on 13 May 2014 just six days before the trial was scheduled to start. While it is correct that your pleas spared the victims from the ordeal of having to give evidence, its lateness necessarily means that you cannot attract the level of discount which your counsel submits you deserve. 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.⁷ The credit given should reflect the benefits provided to

the system. The Crown submits a discount of the order of 15 to 20 per cent is appropriate. I am satisfied a 20 per cent discount for your guilty plea, while generous, is in all circumstances appropriate.

Totality

[56] This results in a final sentence of 12 years 2 months’ imprisonment on the sexual violation charges and 2 years’ 5 months’ imprisonment on the attempting to pervert the course of justice charge. This converts on a cumulative basis to a total sentence of 14 years 7 months’ imprisonment.

[57] I am then required to stand back and consider the totality of your offending. In doing so I must consider whether the sentence is proportionate to the extent of your offending. I am satisfied that some adjustment is required to recognise the totality principal and I reduce by 1 year the total sentence which for the purpose of the calculation will be applied to reduce the sentence on the perverting charge.

Minimum period of imprisonment

[58] Both counsel have accepted a minimum period of imprisonment may be appropriate. It is appropriate if the default minimum of one third of the final

sentence is insufficient to hold the offender accountable for the harm done, denounce the conduct, deter the offender or others, or protect the community.⁸

[59] Your counsel submits this period should not exceed eight years. The Crown submits a period of 10 years or two thirds of the final sentence whichever is the lesser.

[60] I am satisfied in all the circumstances a minimum term of imprisonment of 8 years is an appropriate sentence.

Sentence

[61] Mr Thompson, please stand.

[62] On each of the three charges of sexual violation by rape and the six charges of sexual violation by unlawful sexual connection, I sentence you to 12 years’ and 2 months’ imprisonment.

[63] On the charge of attempting pervert the course of justice, I sentence you to 1 year and 5 months’ imprisonment.

[64] The sexual violations are to be served concurrently. The attempting to pervert the course of justice is to be served cumulatively on the sexual violation sentence resulting in a total sentence of 13 years’ and 7 months’ imprisonment.

[65] I impose a minimum period of imprisonment of 8 years.

[66] Mr Thompson, you turned your life around once before and you made genuine advances to improve yourself and your family’s situation. Now you are going back to jail for a long time. You said to me in your letter that you will do all in your power to come out a better man. You are not a young man; you are not a man in great health, but it is never too late to improve yourself.

_{[67] Stand down.}

Moore J

Solicitors:

Crown Solicitor, Auckland

S Cowdell, Auckland