R v Greer [2014] NZHC 2364 (26 September 2014)

Last Updated: 24 October 2014

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CRI-2012-035-991 [2014] NZHC 2364

THE QUEEN

v

_{ALLAN IVO GREER}

Hearing:	26 September 2014 (Heard at Wellington)
Counsel:	I R Murray for Crown Defendant in person
Judgment:	26 September 2014

_{SENTENCING REMARKS OF MACKENZIE J}

[1] Mr Greer you appear for sentencing on one count of sexual violation by rape, three counts of threatening to kill, two counts of aggravated burglary, one count of possession of an offensive weapon, two representative counts of supplying methamphetamine and one representative count of supplying cannabis to a person under 18 years of age. You were found guilty of those offences by a jury following your trial in May 2014. You represented yourself at trial. I need to record that I am satisfied that you were informed of your rights relating to legal representation and legal aid; that you fully understood those rights and had the opportunity to exercise them; but that you refused to exercise those rights.

[2] The facts of your offending are that you formed a most inappropriate attachment to two young women. You sought to dominate those vulnerable young women. You supplied both of them with methamphetamine, and one of them with

_{cannabis – you will be silent while I deliver my remarks. You terrorised them and}

R v GREER [2014] NZHC 2364 [26 September 2014]

their families. You went to the home of the father of the first female victim and threatened to cut his throat. He was sufficiently concerned at that threat to leave his home and go and stay with his daughter, the first female victim, and her partner. You went to the house late one night armed with a knife. When the father opened the door to you you hit him, and made threats to others in the house. Sometime later, when the first female victim and her father were in the kitchen of his house, you visited and said that you would kill her and slit her father’s throat.

[3] Your offending against the second female victim involved supplying her with methamphetamine. On several occasions she drove you around the lower North Island. On one occasion you took her to your residence at Castlepoint. You plied her with drugs and alcohol until she became intoxicated and fell asleep. You then raped her. You went to considerable lengths to break up a relationship between her and the first female victim’s brother. Your threats were taken seriously – be quiet please - your threats were taken seriously to the extent that the family arranged for him to leave town for several weeks to take him away from the danger you presented. In your efforts to break up the relationship, you went to a house where the second female victim was alone. You broke in armed with a shotgun and knife and threatened her and forced her to go with you.

[4] The final straw, which led to a complaint to police, was when you went to the first female victim’s house and threatened to put a bullet in her head if she did not tell you where her brother was.

[5] This reign of terror was then reported to police and you were arrested. At the time of your arrest you had in your possession a knife.

[6] Counsel for the Crown submits, and I agree, that there are several aggravating features of this offending. There is premeditation. There was actual and threatened violence. There was harm from the offending in that the nature of the threats caused the victims genuine fear, exacerbated by the fact that they knew you had the immediate means to carry out the threats. There was victim vulnerability in that the two young women involved were aged only 16 and 17 years at the time. There are no mitigating factors relevant to the offending.

[7] The charge of rape, and your previous record of offending, mean that preventive detention is an available sentence. 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. Counsel for the Crown submits that this is the sentence which I should impose on you.

[8] Before that sentence can be considered, the Court must have considered reports from at least two appropriate health assessors about the likelihood of your committing a further qualifying sexual or violent offence. At the conclusion of your trial on 7 May 2014, I remanded you to 4 July 2014 for sentence and ordered a pre- sentence report and the two health assessors’ reports which are required. You refused to engage with the persons tasked with preparing those reports. Reports were not available because of your refusal to be interviewed. I therefore adjourned your sentencing to today and directed that the persons preparing the reports should again seek to interview you but if you maintained your refusal to engage with the process, the reports should be prepared on the basis of the material otherwise available. You have maintained your refusal to be interviewed, and the reports that I have reflect that. I consider that it would be futile to allow you another opportunity to reconsider your decision not to engage with the process and I therefore proceed to sentence on the basis of the reports which I have. Those reports meet the statutory requirement in s 88(1)(b) of the Sentencing Act 2002. Be quiet Mr Greer.

[9] Another requirement which must be met before a sentence of preventive detention can be imposed is that you must have been notified that a sentence of preventive detention will be considered, and been given sufficient time to prepare submissions on the sentence. That requirement has been met. You were notified on

7 May 2014 that preventive detention would be considered. The fact that preventive detention was under consideration was again made clear to you when sentencing was adjourned on 4 July 2014. You have had ample time to prepare submissions. You have not taken that opportunity to present written submissions directed to sentence, though you have made numerous requests and submissions to the Court on other matters.

[10] I must consider whether you pose a significant and ongoing risk to the safety of the community and whether preventive detention is necessary to protect the community from you. In making that assessment I must consider whether you are likely to commit another serious sexual or violent offence if you are released from any finite sentence that it would otherwise be appropriate to impose for your offending. Counsel for the Crown submits that if a finite sentence were imposed, a sentence of not less than 15 years would be appropriate to reflect the totality of your offending. I do not need to determine a firm starting point. In considering whether you are likely to commit another serious offence on release, I take a likely sentence of around 15 years as appropriate. Your release will therefore inevitably be a considerable time in the future. That adds to the difficulty of assessing the risk you are likely to present at that stage. It is however an assessment which a Judge considering a sentence of preventive detention must make, and I must do that here.

[11] In considering whether to impose a sentence of preventive detention, I must take into account a number of matters. The first is any pattern of serious offending disclosed in your history. You are 52 years of age. Your criminal history began in the Youth Court when you were 14 years of age. You first appeared in the District Court at 17 years of age. You have amassed a total of 153 previous convictions for a range of offence types. I do not mention them all. They include multiple convictions for aggravated assault and common assault; assaulting prison officers, police and traffic officers; burglary; theft; and possession of offensive weapons. You have served several sentences of imprisonment. Apart from the two sentences to which I will refer shortly, the longest was a sentence of three and a half years imprisonment imposed in 1999 on a range of charges. Your offending has been continuous, though the frequency of violent offences has fluctuated.

[12] For present purposes, the most relevant offences are those for which you were sentenced in the two most recent sentencings, in 2001 and 2004. I have read the sentencing notes from both of those sentencings. I regard those notes as significant and helpful in deciding the sentence I should impose.

[13] In 2001 you were sentenced on counts of kidnapping, injuring with intent to injure, and threatening to kill. The victim of the offending was your former partner.

You had gone to the victim’s property to pick up your son. You became violent with the victim and attempted to dominate her. You were sentenced to two and a half years imprisonment. In 2004 you were convicted of four counts of sexual violation and six counts of indecent assault on a girl under 12. That offending dated from

1988 and 1996. There were two victims, your stepdaughter and your daughter. The sentencing Judge considered whether to remand you to the High Court for consideration of a sentence of preventive detention. He decided that was not appropriate and sentenced you to seven years imprisonment.

[14] The offending for which you were sentenced on those two occasions bears disturbing similarities to the present offending. The 2001 offending involves an attempt to dominate your victim, and to impose your will on her by violence and threats. The offending of which you were convicted in 2004 involves sexual offending on girls, and, like this offending, indicates an inappropriate sexual interest in girls or young women.

[15] The next matter that I must take into account is the seriousness of the harm to the community caused by the offending. One measure of the harm to the community is the harm to the victims themselves. The victim impact statements from the two female victims, and the victim’s father who was involved in the offending as I have described, show the traumatic effect which your offending has had on them. You have seriously blighted the lives of two young women. You caused the male victim to be so frightened that he has moved from Masterton and has had to completely rebuild his life. There is therefore serious harm to them, and indirectly to the community, from your offending.

[16] The next matter I must consider is information indicating a tendency to commit serious offences in future. The three reports I have, the pre-sentence report and the reports of the two health assessors, are helpful to me, despite the lack of input from you. The psychiatric report describes your history of admission to Forensic Psychiatric Services, in 1999, 2002 and 2004. You were initially found unfit to stand trial for the offending of which you were convicted in 2004. In 2002 you were diagnosed as experiencing schizophrenia. In 2004 the psychiatrist treating you had difficulty in establishing a clear diagnosis but was of the opinion that you

had an underlying paranoid personality and were prone to lapse into periods of psychosis. You were later described as having a long standing paranoid personality, with a tendency at times to become more clearly and obviously psychotic with persecutory delusions. The psychiatrist is of the view that there is a history suggestive of poly-substance misuse or abuse, and that you may be mentally ill.

[17] The psychologist hypothesises from the material available that you hold a pervasive conception that you are being unfairly or unjustly treated – be quiet please

– and that you appear to have responded to this belief system with a combination of defiance extending to aggression and violence and engagement with systems for potential redress such as complaints. The view is expressed that you have held an entrenched belief that you are being victimised.

[18] I consider that your conduct, before, during and after your trial, and indeed during this sentencing process, fully supports the views which the psychiatrist and psychologist have expressed. You have displayed to me the behaviour they describe. Your mental health must be seen as creating a significant risk of future serious offending.

[19] Because you have declined to participate in any assessment with the Department of Corrections’ psychologists, two risk assessment instruments were used, without the benefit of any input from an interview with you. On the Automated Sexual Recidivism Scale (ASRS) you are estimated to be in the medium-high risk category. Sexual offenders in that category have reoffended at the rate of 12 per cent after five years and 30 per cent after 10 years. On the Corrections Department RoC*RoI scale (risk of conviction, risk of re-imprisonment scale), your score falls within the group of offenders who have a moderate risk of imprisonment for general offending. The average rate of imprisonment for offenders in that category is 60 per cent. I take into account your classification, but in doing so I place limited weight on the statistical information as to reoffending rates. The assessment I must make is an individual one for you.

[20] The psychologist also notes that your conviction history shows atypical patterns of offending which are relevant in considering your risk of reoffending.

While your offending frequency has fluctuated, there is an overall increase in the breadth of victims of your violent and sexual offending and in the severity of your sexual offending over time. The view is expressed that your belief system, to which I have referred, appears to have become increasingly entrenched and rigid over time and that conception that you are in conflict with parts of the system likely contributes to your risk of reoffending. The view is expressed that given your atypical offending patterns and the presence of additional dynamic risk factors the static risk measures likely underestimate your risk of reoffending.

[21] The overall conclusion is expressed that you are considered to be at high risk of further sexual or general offending and that likely victims will be vulnerable girls,

16 years or younger, and known to you. It is probable that you will act to facilitate victim access and/or to groom victims in some way.

[22] I have formed a similar view, based on my observations to those of both the psychiatrist and the psychologist. I consider that the risk of further offending is high. The likely category of victims would be vulnerable girls with contact initiated through grooming, which I consider is likely to progress to physical and psychological domination of future victims. On all the information available to me I consider that there is a very high risk of a tendency to commit serious offences in the future.

[23] The next matter I must consider is the absence or failure of efforts to address the cause or causes of your offending. Not only have you made no effort to address the causes of your offending, you have gone out of your way to obstruct any efforts towards addressing the risk that you undoubtedly pose. In this regard, the most significant factor is what the psychiatrist has noted as your paranoid personality with a tendency to become more clearly and obviously psychotic with persecutory delusions. Be quiet Mr Greer. My own lay observations lead me to agree with the psychiatrist’s assessment of your personality. The tendency he described has become very obvious by your stance throughout, and particularly since your conviction and including your attitude today. You have clearly demonstrated that you regard yourself as a victim of a conspiracy or series of conspiracies involving the victims,

the police, the court system, and the judiciary. That attitude adds significantly to the risk you pose.

[24] The final matter which I must consider is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. That is a very important – be quiet Mr Greer – that is a very important principle. A finite term is always preferable and there is a reluctance to resort to the indefinite sentence of preventive detention unless the circumstances demand it. In your case, I have reached the view, based on the considerations that I have mentioned, that the risk that you pose is simply too great for me to conclude that a finite sentence provides adequate protection.

[25] You will accordingly be sentenced to preventive detention.

[26] I must also sentence you to a minimum period of imprisonment. That may not be less than five years and must be the longer of the minimum period required to reflect the gravity of the offence or the minimum required for the purposes of the safety of the community in the light of your age and the risk you posed to the safety at the time of sentencing. Taking into account both those factors I consider that the appropriate minimum period is 10 years.

[27] I sentence you as follows:

(a) On the charge of sexual violation by rape, you are sentenced to preventive detention, with a minimum period of imprisonment of

10 years.

(b) On each of the charges of aggravated burglary, you are sentenced to seven years.

Mr Greer has now departed but I will continue as I had effectively imposed the sentence. The sentences that I now impose are essentially consequential.

(c) On each of the charges of threatening to kill, Mr Greer is sentenced to three years.

(d) On each of the charges of supplying methamphetamine, Mr Greer is sentenced to three years.

(e) On the charge of supplying cannabis, he is sentenced to three months.

(f) On the charge of possession of an offensive weapon he is sentenced to three months.

(g) All sentences are to be served concurrently.

“A D MacKenzie J”