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High Court of New Zealand Decisions |
Last Updated: 5 January 2019
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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA
ROHE
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CRI 2017-088-931
[2018] NZHC 2670 |
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THE QUEEN
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v
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LANCE LANGMAN
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Hearing:
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12 October 2018
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Appearances:
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M B Smith for Crown
A Dooney for Defendant
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Sentenced:
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12 October 2018
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SENTENCING NOTES OF VAN BOHEMEN J
Marsden Woods Inskip Smith, Whangarei Bank Street Chambers, Whangarei
R v LANGMAN [2018] NZHC 2670 [12 October 2018]
[1] Lance Langman, you appear for sentence having pleaded guilty to one charge of exploitative sexual connection with a person with a significant impairment and one charge of attempting to have exploitative sexual connection with a person with a significant impairment. Each of those charges carries a maximum penalty of 10 years imprisonment.1
[2] The Crown has sought leave, which I grant, to withdraw a third representative charge of exploitative sexual connection.
[3] On the remaining charges, the Crown seeks a sentence of preventive detention in terms of s 87 of the Sentencing Act 2002. The main question for this Court today is whether you should be sentenced to a substantial finite sentence or a sentence of preventive detention. Before addressing the issue of preventive detention, I must decide what finite sentence I would impose based on the facts of your offending and on features personal to you.
Facts of alleged offending
[4] Your victim was a 76-year old woman who is diagnosed with a significant mental impairment. She was living independently in a unit that was overseen by her special needs provider. You have known the victim and her family for about 30 years.
[5] Between 1 July 2016 and 11 August 2016, you visited the victim’s address on a number of occasions. On one occasion, you confirmed with her that she was alone and asked if she wanted to have some fun. She replied that she did and followed you to the bedroom. You removed your pants and underwear and encouraged her to do the same. She removed her lower garments. The victim got on to her bed and you and the victim engaged in sexual intercourse until she said she was hurting and told you to stop. You stopped, got dressed, and left the address.
[6] On another occasion, you visited the address and also said to the victim you could go and have some fun. In the bedroom, you removed your pants and underwear.
1 Crimes Act 1965, ss 138(1) and 138(2).
She also removed her lower garments and sat on the bed. She then said she didn’t want any more. You put your clothes back on and left.
Victim impact
[7] I have read the victim impact statements from the victim and her niece who cares for her. The victim says she feels horrible and disgusted by what you have done to her. She could no longer enjoy or feel safe in her home and has moved to a new, less independent, residence which has been difficult for her. Her niece records how your offending has caused the victim visible emotional distress, anger and frustration. All of this is the consequence of your selfish actions. This is not a question of her consenting to your behaviour.
Personal circumstances
[8] I turn now to describe your personal circumstances. I have had the benefit of a pre-sentence report and reports from two psychiatrists, Dr Ian Goodwin and Dr Rishi Duggal, and from clinical psychologist Ms Anja Isaacson. These are informative and helpful.
[9] Mr Langman, you are 61 years of age. While you do not have a diagnosed serious mental illness or personality disorder, your developmental history is characterised by neglect, lack of parental supervision, poor social-sexual role models, and significant sexual abuse. You have been assessed as not having any serious mental illness or personality disorder. But, you have also been assessed as being below average intelligence.
[10] You were the second youngest child of sixteen children born to the same father with two different mothers. Your parents separated when you were nine and, unlike the rest of your siblings, you chose to live with your father rather than your mother.
[11] You were subject to sexual abuse in various horrific ways by two different male caregivers over two different periods when you were aged between six and 12 years old. You also witnessed a family member being sexually abused. It has been assessed that these violations of your personal boundaries have predisposed you to development
of intimacy deficits, unsophisticated social skills and distorted attitudes and beliefs to sexual activity and sexual boundaries. You also engaged in consensual sex with other young people from an early age.
[12] You left school at 18 after failing to obtain school certificate in three successive years. After leaving school, you were employed in forestry, and as a truck and delivery driver, and also had a career in the army.
[13] You married your first wife when you were aged 21. That marriage, which produced two children, ended after five years. You married again at age 27 and had two further children by your second wife. That marriage also ended after five years. You married your third wife when you were in your 40s. She had three children from a previous marriage.
[14] One of your sons has described you as an attentive and active father and grandfather.
[15] Until 2007, you were apparently able to satisfy your sexual desires within consenting adult liaisons and long-term relationships. However, in August 2007 you were convicted on eight counts of sexual offending which had similarities to that for which you are being sentenced today. The victim on that occasion was a 32-year old woman with cerebral palsy and limited cognitive capacity. Some of the offending took place when you and your wife, who knew nothing of your offending at the time, were caregivers to the victim. You were sentenced by Priestley J to a term of 11 years imprisonment for that offending.
[16] When sentencing you Priestley J recommended that you be given the opportunity to attend appropriate programmes for sexual offenders and assistance for your past sexual trauma. While in prison you received counselling for your sexual abuse as a child and engaged with a psychologist at Rimutaka Prison during the eight years you spent there. In 2013, before your release, you also took part in two sessions of a Short Motivational Programme but your participation in the programme was stopped after it was assessed that you had failed to gain insight into your offending. You did not understand that your insistence that your sexual activity with the victim
was consensual amounted to a denial and an unwillingness to acknowledge the nature of your offending.
[17] Prior to your release on parole in June 2014 you took part in nine individual sessions with a psychologist focussed on consent and risk management. After your release, however, you did not adhere to that risk management plan and committed the present offending two years later.
Purposes and principles of sentencing
[18] In sentencing you, I have to take into account the purposes and principles of sentencing outlined in ss 7 and 8 of the Sentencing Act. These are the need to denounce your offending and to hold you accountable for the harm that you have caused while promoting in you a sense of responsibility for that harm. There must be deterrence, both against future offending by you and against others who might behave in similar ways. I must also consider the protection of the public, together with your prospects of rehabilitation. In considering whether to impose a sentence of preventive detention, the protection of the community assumes particular significance.
Finite sentence
[19] I will first identify a starting point of your finite sentence by looking at the nature and seriousness of your offending compared to similar cases. I will then consider whether there is anything in your personal circumstances that justify adjustments to that starting point.
[20] The Crown has sought a starting point of five years imprisonment, based on starting points in cases that have some similarities to yours. Your counsel also submits a starting point in the range of five years may be appropriate.
[21] There is no guideline judgment for sexual exploitation. The Court of Appeal made clear that sentencing in this area must be for the protection of the mentally impaired and deterrence of those who take advantage of them.2
2 R v Whitaker CA23/97, 27 August 1997; R v Tapson [2008] NZCA 155.
[22] The aggravating features of your offending are clear. The victim was intellectually impaired, with the special vulnerability that comes with that condition. Despite your assertion to the psychological experts that you are not a predator, your behaviour was manipulative and predatory. These features are inherent in the offence. There was also an abuse of trust owed to a victim that had allowed you into her home. The harm to the victim is significant, as she has lost her long-term residence in order to move beyond the offending.
[23] I recognise that your offending was confined to two occasions over a six-week period, there was no violence or force involved and that on both occasions you stopped when asked to do so by the victim. Nonetheless, this is serious offending of its kind. I am satisfied that a starting point of five years imprisonment is appropriate.
[24] In reaching this starting point, and in the interests of consistency in sentencing for exploitative sexual connection offending, I have had regard to the following comparative cases: R v Bailey,3 R v Walters,4 R v Cheesman,5 R v Lindsay6 and R v McInnes.7.
Adjusting the starting point
[25] I turn now to consider your personal aggravating and mitigating factors.
[26] As I have noted, in 2007 you were sentenced, following a trial, to 11 years imprisonment for two convictions of sexual violation by rape, four convictions of
sexual violation by digital penetration, and convictions for attempted sexual violations. That offending took place over approximately five and a half years and over four of those years you were in a position of trust, which the sentencing judge said you grossly abused.
[27] A further aggravating feature is that your current offending occurred when you were subject to release conditions for that conviction.
[28] Denunciation, deterrence, and protection of the community are plainly engaged. Your offending was in circumstances similar to those for which you were previously convicted and took place only two years after your release on parole following rehabilitative engagement. I consider an uplift of 12 months imprisonment is required to reflect these considerations. That would bring your sentence to six years imprisonment.
[29] While you are not diagnosed as having a mental disorder, I acknowledge that your psychological state arising from your childhood trauma is connected to your offending. Nevertheless, any reduction that might have been made for these mitigating aspects is offset by the need for community protection and general and specific deterrence. In the sentencing context, there is an important distinction between an offender whose impaired mental functioning produces unpremeditated or uncharacteristic behaviour, which is unlikely to be repeated and an offender who commits repeated serious offending over a prolonged period where the offender had insight into his offending at the time.8 You have committed similar offending twice albeit many years apart – because you were in prison – and ought to have had insight into the present offending.
[30] You are entitled to a reduction in sentence to reflect your guilty plea. Neither the Crown nor your counsel has suggested what that discount should be. Given the lateness of your plea in the process following various pre-trial applications and the vacation of a trial date, yet recognising your plea has saved the victim from having to
relive the horrible events and give evidence, I consider a discount of approximately 10 per cent, or eight months, to be appropriate.
[31] This would bring your finite sentence to one of five years and four months.
[32] I also consider a minimum term of imprisonment of three years and three months, or just over 60 per cent of the finite term, would be justified based on your propensity to offend in this manner in order to ensure you have appropriate time to engage in rehabilitation, protect the community and denounce and deter similar offending.
Preventive detention
[33] I now consider whether, instead of this finite sentence, I should impose an indeterminate sentence of preventive detention. Unlike a finite sentence, preventive detention is not about deterrence, punishment and accountability. Rather it is designed to protect the community. It requires the assessment of the future risk of offenders who pose a significant and ongoing threat to the safety of others.9 Preventive detention means that a prisoner who actively engages in rehabilitation may be released on parole, but may be recalled to prison at any time for the rest of their life if they breach their release conditions.
[34] Sexual exploitation and attempted sexual exploitation of a person with significant impairment are qualifying offences under the legislation.10 I must therefore assess whether you are likely to commit another qualifying offence if you were released at your sentence expiry date.11 I will consider that alongside the five factors which the Sentencing Act says I must take into account when considering whether I should impose a sentence of preventive detention.12 As noted, I have reports by health assessors to assist me in assessing these factors: including from Dr Goodwin, Dr Duggal, and Ms Isaacson.
9 Sentencing Act, s 87(1).
10 Section 87(5).
11 Section 87(2)(c).
12 Section 87(4).
[35] I turn now to the five factors under s 87(4) of the Sentencing Act.
Pattern of serious offending disclosed by the offender’s previous history
[36] Dr Duggal notes that the sexual offending across both victims involved elements of grooming and the exploitation of vulnerability, while keeping the offending secret from your wife. Ms Isaacson summaries your sexual offending as restricted to specific circumstances with victims known to you, with no evidence of force and not presenting with deviant sexual attitudes or beliefs, and no apparent pervasive pattern of sexually inappropriate behaviours or attitudes while on parole, until the current offending.
[37] Consistent with your previous offending, Ms Isaacson notes you offended in an opportunistic manner by grooming a victim known to you, and is of the view that you did not target the victim for sex but for social contact at a time when you felt ostracised by the community, and on this basis she does not consider that you present with a pattern of serious sexual offending.
[38] There is force in the Crown submission that the similarities of your offending show a propensity to manipulate, befriend and sexually offend against vulnerable, mentally impaired women who are in your life. The Crown emphasises the fact you were convicted of eight offences in 2007 but the reality was that that offending occurred in relation to a single victim. The index offending again was with a single victim, this time on two occasions.
[39] Whether your offending with two victims can be taken as indicating a pattern of serious sexual offending is at least open to debate. However, as confirmed by the Court of Appeal in Stroobant v R,13 the factors listed in s 87(4) are mandatory considerations but are not prerequisites, and the lack of a clear pattern of the type of criminal offending engaged in does not preclude the imposition of a sentence of preventive detention.
13 Stroobant v R [2018] NZCA 10 at [23].
Seriousness of harm to the community caused by the offending
[40] As noted by the report writers, the lasting effect of your offending on the victim is apparent from her statement. It is also concerning that you continue to be unable to discern where someone is vulnerable and whether they are consenting. While I do not view your offending as sinisterly pre-meditated, your behaviour indicates a lack of awareness of the criminality and harmfulness of your actions. This is behaviour from which vulnerable members of the community need protection.
Information indicating a tendency to commit serious offences in the future
[41] The most important, and the most difficult, consideration is whether you have a tendency to commit serious sexual offences in the future. Prediction of risk is an area fraught with difficulty, and in this case the Court has the benefit and challenge of three reports from expert witnesses who provide differing assessments on this key factor.
[42] Dr Duggal concludes that your current risk of sexual recidivism, if you were released into the community now, is high. However, I must bear in mind that you will not be being released into the community immediately, and the question is whether a lengthy finite sentence will reduce the risk, or whether you are such a risk that preventive detention is necessary. Noting you will spend a lengthy period of time in prison, Dr Duggal considers the risk of re-offending has the potential to be diminished by rehabilitative activities targeting your modifiable risk factors, making prediction of your future risk challenging. Dr Duggal is nevertheless of the view that there are indications of a tendency to similarly offend in the future, given your offending occurring within two years of release, your lack of remorse and persistent view that both instances of offending were consensual. Dr Duggal concludes you are currently a high risk of sexual recidivism.
[43] Dr Goodwin considers that you present a moderate degree of risk of reoffending in a similar manner as you have difficulties with the concept of consent because of your intellect and background.
[44] Ms Isaacson considers you are a moderate risk of committing a future sexual offence with an adult female known to you, who would likely suffer some form of impairment. On the other hand, Ms Isaacson says that the fact you desisted in your behaviour when asked and did not use force indicates an ability to self-regulate. She also says you do not present a predatory or sexually deviant threat given the lack of systemic planning to offend and given that you have not targeted random strangers.
[45] On balance and recognising the differences in the experts’ views, I consider you present a moderate risk of offending in a similar manner.
The absence of, or failure of, efforts by the offender to address the cause or causes of the offending
[46] This is another factor where your apparent inability to differentiate between consent on your victims’ part and manipulation on yours is a significant concern. Your inability to understand that the fact people with impaired cognitive ability do not object does not amount to consent. This was the reason your participation in the Short Motivational Programme was stopped after two sessions in 2013. On the other hand, you did engage in nine individual sessions with a psychologist prior to your release in 2014 and demonstrated a willingness to engage in the development and implementation of a risk management plan.
[47] Dr Duggal considers that your lack of insight into and denial of responsibility for your offending represent persistent cognitive distortions which normalise the offending. Ms Isaacson says your stance that your sexual activity was consensual hindered your progress in previous treatment. She also notes that, despite your inability to implement the agreed risk management plan upon release in 2014, you evidenced an ability to modify and regulate behaviours within prison and that research indicates that setbacks and lapses are to be expected in the journey towards desistence.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society
[48] Dr Duggal records that the advantage of preventive detention is that gains made through individual rehabilitative activity can be measured by the parole board, which is valuable where treatment programs are inadequate. Dr Duggal does not, however,
express a view on whether preventive detention is preferable in your case to a lengthy finite term of imprisonment. Dr Goodwin also does not express a view on whether preventive detention would be preferable to a lengthy determinate sentence.
[49] Ms Isaacson considers that your sexual reoffending was within the context of difficulty adjusting to a hostile community after incarceration, and that you have the potential to realise your fundamentally positive and pro-social values and aptitudes if overseen by external risk management. Ms Isaacson considers a lengthy sentence may provide adequate protection to the community if risk management and treatment are provided for you.
[50] Whether a lengthy determinate sentence would provide adequate protection to the community is the difficult question. Ms Isaacson suggests that given the general correlation between age and reduced sexual offending you may pose less risk in the future after a lengthy finite sentence. By contrast, Dr Duggal is concerned that the fact the index offending occurred despite your advancing age suggests a continuing drive towards sexual offending.
[51] Inherent in this factor is the question of what constitutes adequate protection for society. Adequate protection cannot mean the complete avoidance of risk of recidivism. Some account must be taken of the nature of the offending as well as the risk of recidivism.
[52] In your case, your offending, while personally traumatising for the victims, has been limited to two persons known to you and who have limited cognitive capacity. It has not involved force or violence and has not involved persons beyond your immediate social circle. In those respects, the society at your risk of your recidivism is a relatively small circle and that level of risk ought to be capable of being monitored, managed and mitigated, notwithstanding your apparent inability to appreciate the vulnerability of your victims.
Conclusion on preventive detention
[53] The Crown has sought preventive detention on the basis that you pose a substantial ongoing risk to the community and a finite sentence would be insufficient
to protect the public from you further offending. Your counsel submits that a finite sentence ought to be imposed and preventive detention is not appropriate because you have not yet been given a “final warning” of the type considered in R v Bailey,14 that the similar circumstances of R v Wilson15 suggest preventive detention would be inappropriate, and a finite sentence would still permit further counselling and courses to be completed.
[54] In some respects, yours is a finely balanced case. You have a propensity to offend in a certain way against a certain type of particularly vulnerable victim. You also appear unable to understand that the fact that people with impaired cognitive ability cannot be taken as consenting to engaging in sexual activity with you even if they do not object at the time. And you have failed to adhere to your risk management plan for longer than two years when released into the community.
[55] On the other hand, your history is not one of extensive sexual offending and does not extend beyond your immediate social group. You have shown some promise in engaging with psychologists in order to understand the causes of your offending and a willingness to implement proactive risk management steps. You have also responded positively to individual treatment with a psychologist while in prison, and the report writers indicate that, if your views on consent and vulnerability can be addressed through treatment, your risk would be reduced.
[56] More generally, before I can impose a sentence of preventive detention I must be satisfied, in terms of s 87(2)(c) of the Sentencing Act, that you are “likely” to commit another qualifying sexual or violent offence if released at the expiry of your sentence. I do not consider that the evidence, including the psychiatric and psychological evidence, provides a sufficient basis upon which to reach that conclusion. I accept there is a real risk of your reoffending upon release, notwithstanding your more advanced age when that happens. But I am not satisfied that you are likely to commit such an offence given that the section of society at risk is limited and that the risk ought to be capable of being managed through appropriate monitoring and mitigation measures.
14 R v Bailey [2012] NZHC 1276; Bailey v R [2013] NZCA 495.
15 R v Wilson HC Hamilton CRI-2006-019-5529, 7 June 2007.
[57] One curious aspect of your situation is that it would seem unlikely that you could be made subject to an extended supervision order (ESO) upon release given the requirement in s 107I(2) of the Parole Act 2002 that an ESO can only be made where the court is satisfied that an offender has, or has had, a pervasive pattern of serious sexual or violent offending. It is doubtful that your offending would amount to a pattern of serious sexual offending that was so prevalent and common as to provide a reliable indicator of future behaviour as discussed in Chief Executive of the Department of Corrections v Ihimaera,16 or that permeated and spread across your background as discussed in Chief Executive of the Department of Corrections v van der Platt and Department of Corrections v Pori.17 However, the fact that your offending does not rise to the level of seriousness that would make the imposition of an ESO available on your release cannot be a reason for defaulting to imposing a sentence of preventive detention.
Sentence
[58] Mr Langman, will you please stand.
[59] On the two charges of exploitative sexual connection with a person with a significant impairment and of attempting to have exploitative sexual connection with a person with a significant impairment, I sentence you to concurrent terms of five years and four months imprisonment, with a minimum period of imprisonment of three years and three months. I also issue you with a clear warning that if you offend again in a similar manner, you are likely to be sentenced to preventive detention.
Three strikes warning
[60] Because you have been convicted of a serious violent office in terms of s 86A of the Sentencing Act, you are subject to the three strikes law. I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice which contains a list of these “serious violent offences”.
16 Chief Executive of the Department of Corrections v Ihimaera [2017] NZHC 2228 at [46].
17 Chief Executive of the Department of Corrections v van der Platt [2016] NZHC 3186 at [45];
Department of Corrections v Pori [2017] NZHC 3082 at [22]- [23].
(a) If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
(b) If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.
[61] You may stand down.
G J van Bohemen J
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