R v L [2014] NZHC 2471 (10 October 2014)

Last Updated: 17 October 2014

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S

204 OF THE CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF PRISONER PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-032-003540 [2014] NZHC 2471

THE QUEEN

v

_L

Counsel:	G A Kelly for Crown E A Hall and S R Lack for Prisoner
Sentence:	10 October 2014

_{NOTES ON SENTENCE OF COLLINS J}

Introduction

[1] Mr L, you appear for sentence in relation to 15 charges. I am sentencing you because on 24 January 2014 the District Court Judge who presided over your trial referred your case to this Court so that consideration could be given to imposing a sentence of preventive detention.

_{[2] You were convicted of:}

R v L [2014] NZHC 2471 [10 October 2014]

(1) four charges of sexual conduct with a child under 12 (charges 1, 2, 3 and 5);¹

(2) one charge of sexual conduct with a child under 16 (charge 15);²

(3) five charges of sexual violation by unlawful sexual connection

(charges 7, 8, 9, 11 and 12);³ and

(4) one charge of attempted sexual violation by unlawful sexual connection (charge 10).⁴

[3] You pleaded guilty to four charges (charges 14, 16, 17 and 18) on the first morning of the trial. You were found not guilty of sexual conduct with a child (charges 4 and 6) and attempted sexual violation by rape (charge 13).

[4] The present offending involves one victim and spans from 2007 to 2012. A

number of the charges are representative charges.

[5] The crucial question I have had to consider is whether you should be sentenced to preventive detention or a long finite period of imprisonment.

[6] I have decided, by the narrowest of margins, to sentence you to a long finite period of imprisonment.

[7] In sentencing you I shall:

(1) describe your offending and the impact of your offending on your victim;

(2) examine your previous offending;

_{(3) review your personal circumstances;}

¹ _{Crimes Act 1961, s 132(3). Maximum penalty is 10 years’ imprisonment.}

² _{Section 134(3). Maximum penalty is seven years’ imprisonment.}

³ _{Section 128B(1). Maximum penalty is 20 years’ imprisonment.}

⁴ Section 129. Maximum penalty is 10 years’ imprisonment.

(4) explain why I am not imposing preventive detention; (5) explain the starting point to your sentence;

(6) explain the adjustments that I am making to that starting point to reflect:

• the totality of your offending; and

• your prior offending.

(7) set out the minimum period of imprisonment that you must serve; and

(8) explain your final sentence.

The offending and its impact on your victim

[8] Your victim is your granddaughter. Over a five-year period between 2007 and 2012 you engaged in indecent touching, digital penetration and oral sex with your victim when she was between the ages of nine and 14.

[9] Your offending involved an abuse of your position as a grandfather to your victim and as a father to the parent of your victim. You took advantage of your position to offend in the way I have just described.

[10] The impact of your offending on your victim has been immense. She no longer attends school and her perception of people has been significantly altered. She describes how your offending has affected the way she thinks, acts and feels. She says you have wrecked your family. She also feels relieved to know that you will not be able to abuse her or anyone else again.

Previous offending

[11] In 1996 you were convicted on 17 charges of sexual offending that is almost identical to the offending for which you are to be sentenced now. The offending at that time covered a period between 1982 and 1987.

[12] The victim of that offending was your daughter. You offended against her when she was aged between eight and 14 years. You were sentenced to five years’ imprisonment for that offending. You were released in 1999 after serving three years’ imprisonment.

Personal circumstances

[13] You are 66 years old. You were diagnosed with myasthenia gravis in 1996. This is an auto immune neuromuscular disease which causes a weakness of the muscles. You have required treatment with steroids, the effect of which leads to significant thinning of your bones and osteoporosis, which in turn requires further treatment. You also have diabetes, which has impacted both on your eyes and your peripheral nerves, resulting in damage to your ankles. You have been housed in the High Dependency Unit of Rimutaka Prison while in custody.

[14] You identify yourself as a Christian. You have received pastoral counselling in the past. You have been married for 44 years and your wife is your main source of social support.

Why I am not imposing preventive detention

[15] The Crown submits that a sentence of preventive detention should be imposed. Alternatively, the Crown submits that a finite sentence of between 13 to 14 years’ imprisonment should be imposed with a minimum period of imprisonment of nine years.

[16] After careful consideration, I have decided to impose a finite sentence of imprisonment. You have come perilously close to being sentenced to preventive detention because of:

(1) the emerging pattern of your serious offending;

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

(3) the possibility of you in the future committing serious sexual offences against other young family members. I am especially concerned that the victim of your present offending has a younger sister, also your grandchild, who has been entrusted into your care on a number of occasions.

[17] I was concerned by comments in the reports provided by Ms Pracey, Dr Holmes and Dr Barry-Walsh.

[18] Ms Pracey estimated that you are at medium risk for reoffending. However, she also said:

... to date age does not appear to have been protective as [your] offending took place when [you were] between the ages of 58 and 63 years. Similarly, while [your] medical conditions may impact on [your] mobility and sexual functioning...these tend to progress gradually and variably.

...

Given the commonalities within [your] offending, it is probable that should [you] target future victims, they would be prepubescent and pubescent girls [you have] regular contact with, within [your] family setting.

[19] Dr Holmes said:

[You] reported that [your victim] was a compulsive liar and had accused 2 other men of assaulting her in the past. [You] also stated that [your] myasthenia gravis had caused difficulties in this regard, as the complainant had on one occasion taken [your] hand and put it in her pants and [you] had had difficulties removing it as the disorder caused muscle weakness.

[20] Dr Barry-Walsh said:

In terms of psychological adjustment [he found] evidence of extreme minimization and denial of the offending on the basis that [you have] been convicted of much more offending than [you admit], and [he found] rationalisations and cognitive distortions in line with attitudes which support the offending. An example was [your] description of [your] granddaughter initiating the offending.

[21] Dr Holmes said that as there was no evidence of any serious mental disorder, she could identify no clear psychiatric factors in your current presentation and offending and was therefore unable to comment on your future risk of offending.

[22] There are two factors which have tipped the scales by the narrowest margin against imposing preventive detention.

[23] First, I believe you should be given the opportunity to participate in an intensive programme designed to address the causes of your offending, such as the Kia Marama programme before imposing the ultimate penalty of preventive detention. I am influenced by Dr Barry-Walsh’s suggestion in his report that you may benefit from a sexual offender treatment programme and with this intervention and with the passage of time and a carefully planned and well-managed return to the community it is possible that your risk of further offending will be substantially modified.

[24] I understand that when you were last sent to prison you declined to participate in the Kia Marama and the STOP programmes. You did participate in a short psychological group programme designed to help sexual offenders where you developed a risk management plan, but upon release from prison you did not adhere to this plan fully. However I accept that this was now almost 20 years ago. You have now indicated a willingness to participate in remedial programmes. I believe you should be given this opportunity.

[25] Secondly, I believe that in your case a finite sentence is preferable to a sentence of preventive detention, particularly in view of your age and your health circumstances.

Starting point

[26] I adopt the sexual violation by unlawful sexual connection (charges 7, 8, 9,

11 and 12) as being the most serious because of the frequency, duration and nature of that offending. These charges encompass offending by digital penetration, connection between your mouth and the victim’s genitalia, and connection between your penis and the victim’s mouth.

[27] Sentencing for this type of offending is governed by the tariff decision in R v AM.⁵ That decision provides three bands of offending where the lead offence is a form of unlawful sexual connection.

[28] R v AM lists the relevant culpability assessment factors to be taken into account. I find that the culpability factors relevant to your offending are:

(1) Premeditation. Your victim was on several occasions entrusted into your care by her parents. Your wife was present in the house on several occasions. In order to follow through with your offending, you engaged in quite deliberate calculations.

(2) Violence. Although violence is inherent in sexual offending, I find that the offending in this case had a particular element of violence. In relation to the penile penetration of your victim’s mouth, you held her head back and forced your penis into her mouth, causing her airway to be restricted. In relation to the digital penetration, your victim stated it felt like she was being “torn” as you used more than one finger.

(3) Vulnerability of the victim. Your victim was nine years old at the time the offending began.

(4) Breach of trust. Your victim is your granddaughter. Her parents often placed her and her sister in your care. Offending within the family involves a significant breach of trust.

[29] I also acknowledge that the scale of offending is a relevant culpable factor. However, this is a factor that I find more appropriate to address in terms of the totality of your offending.

[30] Band three encompasses sentences between nine and 18 years. The Court of

Appeal has held that this band is appropriate for the most serious offending of this

type. Band three includes cases which involve two or more of the factors increasing culpability to a high degree, for example, a particularly young victim or an extensive period of offending. Similarly, the band will be appropriate where more than three of those factors are present to a moderate degree.⁶

[31] In my assessment, your offending warrants a starting point of 12 years’ imprisonment. I have reached this point after considering similar cases and evaluating the gravity of your offending.⁷

[32] I also note the principle that cases close to the threshold for preventive detention may justify a longer finite term than would otherwise be appropriate, in the interests of public protection. In R v Leitch, the Court of Appeal held:⁸

Where the sentencing Court considers that a finite sentence arrived at in accordance with normal principles would not be adequate for the protection of the public, it is permissible to consider a finite term which would be less severe in its effect on the offender than preventive detention but which at the same time would be of greater severity than a sentence related only to the usual balancing of the desirability of prevention against the gravity of the offending.

[33] I am satisfied that a starting point of 12 years’ imprisonment is justified in the circumstances of your case.

Adjustments to starting point

Totality of offending

[34] Section 85 of the Sentencing Act 2002 requires me to have regard to the totality of your offending.

[35] In my assessment, the starting point of 12 years’ imprisonment needs to be

_{adjusted upwards by a further year to reflect:}

⁶ _{R v AM, above n 5, at [120].}

⁷ A starting point of 11 years’ imprisonment was adopted by Judge Hobbs in the sentencing indication he gave in R v L DC Wellington CRI-2012-032-3540, 1 July 2013. See also O (CA213/2013) v R [2013] NZCA 584 and R v BSW HC Auckland CRI-2009-044-7874, 9 March

_2011.

⁸ R v Leitch [1998] 1 NZLR 420 (CA) at 430.

(2) the nature of the charges; and

(3) the length of time over which the offending occurred.

[36] This would bring the adjusted starting point to one of 13 years’

imprisonment.

Previous offending

[37] Section 9(1)(j) of the Sentencing Act 2002 requires the sentencing Judge to take into account the number, seriousness, date, relevance and nature of previous convictions.

[38] While I must resist punishing you again for your previous offending, the seriousness and the relevance of your earlier offending is too significant for me to disregard.

[39] You offended in the exact manner 30 years ago against your daughter. What is particularly disturbing is that it involved the same pattern of behaviour and planning you employed against your granddaughter.

[40] Therefore, an uplift of one year should be imposed to reflect your previous offending.

[41] This produces a sentence of 14 years’ imprisonment before any reductions

can be made to reflect mitigating factors.

Mitigating factors

[42] You pleaded guilty to four lesser charges on the first morning of trial. Pleading guilty on the morning of trial may attract a small discount in the range of five to 10 per cent as indicated by the Supreme Court in Hessell v R.⁹ In this case,

however, your guilty pleas did not impact upon the trial proceeding, the need for witnesses to give evidence or provide any cost-relief to the administration of justice. Additionally, any discount for a guilty plea for these lesser charges would have to be reflected in the concurrent sentences imposed for the lesser charges as you were found guilty of the most serious charges laid against you. Any discount is rendered nugatory.

[43] There are no other mitigating factors. I considered giving you a further discount to reflect your age and personal circumstances. However, because those were factors that influenced my decision not to impose preventive detention, I will not take those factors into account again when determining a finite sentence.

[44] Therefore, the end sentence is one of 14 years’ imprisonment.

Purposes and principles of sentencing

[45] Before imposing this sentence I have reflected on whether or not this sentence serves the purposes and principles of the Sentencing Act 2002. I am satisfied the purposes and principles of the Sentencing Act 2002 would be satisfied with this sentence because this sentence would:

(1) hold you accountable for the harm done to your victim and the community;¹⁰

(2) promote in you a sense of responsibility for that harm;¹¹

(3) provide for the interests of the victim;¹²

(4) denounce your conduct;¹³

_{(5) deter you and others from committing the same or similar offences;}¹⁴

¹⁰ _{Sentencing Act 2002, s 7(1)(a).}

¹¹ _{Section 7(1)(b).}

¹² _{Section 7(1)(c).}

¹³ _{Section 7(1)(e).}

¹⁴ Section 7(1)(f).

(7) is the least restrictive outcome that is appropriate in the circumstances.¹⁶

Minimum period of imprisonment

[46] In your case I believe it is necessary to impose a minimum period of imprisonment in order to:¹⁷

(1) hold you accountable for the harm you did to your victim and to the community;

(2) denounce your conduct;

(3) deter others from similar offending; and

(4) protect the community from you.

[47] In particular, a minimum period of imprisonment is necessary to protect the young females in your family from you. Your present victim’s sister, also your granddaughter, is now the same age as your daughter and the present victim when you began offending against them. In my view, the need to protect your family members is paramount.

[48] The minimum period of imprisonment that you will serve is seven and a half

years’ imprisonment.

Conclusion

_{[49] Mr L, can you now please stand.}

¹⁵ _{Section 7(1)(g).}

¹⁶ _{Section 8(g).}

¹⁷ Sentencing Act 2002, s 86(2).

[50] On charges 7, 8, 9, 11 and 12 which are the offences which carry a maximum penalty of 20 years’ imprisonment, I am sentencing you to sentences of 14 years’ imprisonment.

[51] In relation to all other charges, I am sentencing you to five years’

imprisonment.

[52] All sentences are to be served concurrently. This means the time you will be serving in prison for all your offences will not exceed 14 years.

[53] You must, however, serve a minimum period of seven and a half years’

imprisonment before you can be considered eligible for parole.

[54] I order suppression of publication of your name solely in order to ensure that there is no possibility of your victim being able to be identified.

_{[55] You may now stand down.}

_{D B Collins J}

Solicitors:

Crown Solicitor, Wellington

Melanie Baker, Lower Hutt for Prisoner