R v Evans [2018] NZHC 69 (8 February 2018)

Last Updated: 9 April 2018

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-090-2281 [2018] NZHC 69

THE QUEEN

v

JAMES GEORGE EVANS

Charges:	Sexual violation by unlawful sexual connection with a female under 12 years (2); Sexual violation by unlawful sexual connection with a female aged 12-16 years (4); Indecent assault of female under 12 years (2); Indecent assault of boy under 12 years
Sentenced:	8 February 2018
Counsel:	H D L Steele for Crown S Fernando for Prisoner
Plea:	Guilty

SENTENCING NOTES OF BREWER J

Solicitors:

Meredith Connell (Auckland) for Crown

Public Defence Service (Waitakere) for Prisoner

R v EVANS [2018] NZHC 69 [8 February 2018]

Introduction

[1] Mr Evans, you have pleaded guilty to two charges of sexual violation by unlawful sexual connection with a female under 12, and four charges of sexual violation by unlawful sexual connection with a female aged 12-16 years. The maximum penalty for each of these charges is 20 years’ imprisonment. I note that two of the charges are representative. You have also pleaded guilty to two charges of indecent assault of a female under 12 years and one charge of indecent assault of a boy who was under 12 years. Two of the charges are representative charges. Each of these charges has a maximum penalty of 10 years’ imprisonment.

[2] Together, the charges relate to offending by you against four children.

Background

[3] Your principal victim was MD. You are related to her through the family of her stepfather. She referred to you as “Uncle Jimmy”. MD’s mother suffers from a chronic illness and you helped her cope with this, visiting the home and occasionally taking MD out by yourself.

[4] Between 7 May 2016 and 7 May 2017, MD was 11 or 12 years old. On several occasions you took her into your bedroom at your home address where you licked and rubbed her vagina.

[5] On 7 May 2017, in your bedroom, you pulled down your track pants and exposed your penis to her. You yelled repeatedly “I want a fuck”. You pushed MD onto the bed and would not let her up. You pulled down her pants and began rubbing her vagina with your finger. You then licked her vagina for a period estimated to be between five and 15 minutes, masturbating as you did so. When you finished, you handed MD a tea towel and told her to use it to wipe her vagina. You then drove MD home. During the journey, you told her that you had done that to other girls, some of whom she knew. You told her not to tell her mother and gave her $76 for dinner.
[6] Previously, between 3 January 2007 and 3 January 2009, you indecently assaulted MD’s brother, J. J was aged between six and eight years. The offending took place at his home and consisted of you fondling J’s penis over his clothes.

[7] Between 1 January 2016 and 31 December 2016, you indecently assaulted two other girls. The first was B who was aged under 12 years. The second was her sister, M, who was also aged under 12 years. You were able to offend against them because on more than one occasion you came to their family home and were left alone with them while their father fixed your computer. In each case you would pick the girls up while playing a game outside, holding them by their genitals and rubbing their genitals outside their clothing.

[8] Mr Evans, as I think you know, there are two decisions I have to make today. The first is to decide the appropriate finite sentence for the charges on which you have been convicted. The second is whether, instead of that sentence, you should be sentenced to preventive detention.

Finite sentence

[9] I will take your offending against MD as the lead offending. Counsel for the Crown, and your lawyer, are agreed that your offending against her falls within band 2 of a case called R v AM.¹ I agree. It is certainly towards the upper end of that band taking into account the following aggravating factors:

Planning and premeditation

[10] You groomed MD, got her used to you over a period of time, and offended against her repeatedly. You took her away from her home and offended against her in your bedroom.

Vulnerability

[11] Of course, MD was vulnerable by reason of her age, your age and the relationship you had developed with her family.

¹ R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

Harm to the victim

[12] Harm is inherent in this type of offending. MD’s mother, in her Victim Impact Statement, speaks of her deteriorating health and self-blaming. I do not mean to belittle the harm you have done to MD and her family by not discussing it in detail.

Scale of offending

[13] You offended against MD on numerous occasions and over a significant period of time.

Breach of trust

[14] Mr Evans, you put yourself into this family as a responsible adult there to assist MD’s chronically ill mother. You were trusted to take MD outside the protection of her home. Breach of trust is an aggravating factor in this case.

Mitigating factors

[15] I do not find any mitigating factors in relation to your offending.

Starting point

[16] I adopt a starting point of eight years’ imprisonment for the offending against MD. I will uplift that by one year to recognise the offending against your other three young victims. That is not a big uplift, but I have had regard to the totality of your offending and I consider that an overall starting point of nine years reflects that totality.

Personal circumstances

[17] I will now look at your personal circumstances to see whether the starting point should be adjusted up or down.

Previous convictions

[18] It is very significant that you have a number of previous convictions. The ones I find relevant are these:

• On 31 August 1989, you were convicted of two counts of indecently assaulting a female under the age of 12 years. This offending occurred in 1985 and 1986. You were sentenced to 18 months’ imprisonment.

• On 7 September 2000, you were again convicted of indecently assaulting a female under the age of 12 years. This offending occurred in 1999. You were sentenced to three years’ imprisonment.

• On 4 October 2002, while you were serving that sentence, you were convicted of indecently assaulting another girl in 1999. She was also under the age of 12 years. Further, you were convicted of unlawful sexual connection with that girl. The sentence was two years and six months’ imprisonment, but it ran concurrently with the previous sentence of three years’ imprisonment.

[19] The Crown submits that an uplift of six months’ imprisonment is appropriate to take into account that earlier offending. I accept that this offending covers a period which ended some nine or 10 years before your current round of offending began with the indecent assault on J. Nevertheless, your earlier offending involved three young girls, and progressed to unlawful sexual connection of a kind very similar to the charges on which you are now being sentenced. I will uplift the starting point by one year, bringing the overall starting point to 10 years’ imprisonment.

Remorse

[20] Mr Evans, your counsel submits on your behalf that you profess profound and genuine remorse for your offending. In her view, I should reduce your sentence by 10 percent to take account of that remorse. I will not do so. I have read carefully the reports on you by the health assessors. I have just now read the letter handed up today by your counsel. It is not convincing. I do not find any real remorse on your part.

Guilty pleas

[21] On the other hand, you have entered pleas of guilty to all of the charges and you have saved your young victims from having to give evidence. Your pleas were not entered at the first available opportunity, but I will accord you the full 25 percent
discount because you made a full confession to the Police and indicated from the outset that you would enter pleas of guilty.

Conclusion

[22] Mr Evans, what this means is that if I were to impose a finite sentence on you, it would be seven years and six months’ imprisonment.

Minimum period of imprisonment

[23] Finally, in this section of the sentencing I need to consider whether a minimum period of imprisonment should be imposed.

[24] Normally, for serious offending the Parole Board can consider whether to release a prisoner on parole after he has served one-third of his sentence. However, a Court can order a longer minimum period of imprisonment for any of the following purposes:²

(a) To hold you accountable for the harm done to your victims and the community by your offending;

(b) To denounce your conduct;

(c) To deter you or others from committing the same or similar offences;

(d) To protect the community from you.

[25] I find that all of these purposes apply to your situation. However, having regard to the reports of the health assessors, there is a particular need to protect the community from you. Therefore, if there is to be a finite sentence of imprisonment it would be with a minimum period of imprisonment constituting two-thirds of the overall sentence.

² Sentencing Act 2002, s 86.

Preventive detention

[26] Mr Evans, the charges against you are qualifying offences for a sentence of preventive detention.³ I know that you told the psychologist, Mr van Rensburg, that your understanding of preventive detention is that it is a “Murder Act sentence”. It is not. It is a sentence designed to protect the community from offenders who pose a significant and ongoing risk to the safety of its members, including from qualifying sexual offenders. That is why I have to consider the sentence in your case. It is nothing to do with murder.

[27] Preventive detention is not a sentence of last resort and it is not in itself a punishment. If I conclude that you are likely to commit another qualifying offence if released on parole after a finite term of imprisonment, then I may sentence you to preventive detention.

[28] The Sentencing Act 2002 sets out a number of factors I have to take into account. The first is whether there is any pattern of serious offending disclosed by your history. The previous convictions to which I have referred establish such a pattern.

[29] When I look at your behaviour behind those convictions, there is a very worrying consistency with your current offending. There is grooming over a period of time and abuse of positions of trust. The nature of your previous offending is very similar to your current offending.

[30] The next factor is the seriousness of the harm to the community caused by your offending. The sexual abuse of children by a trusted adult manifestly causes serious harm to the community.

[31] The third factor is information indicating a tendency on your part to commit serious offences in the future. This factor is key to the decision I have to make in your case.

³ Sentencing Act 2002, s 87(5)(a).

[32] Dr Duggal is a forensic psychiatrist. I found his report to be careful and thorough. In his opinion, your offending against these children clearly meets the criteria for paedophilic disorder. You also have traits of antisocial personality disorder.

[33] Dr Duggal puts particular stress on the fact that you have, during previous sentences, undergone two sets of sexual offender rehabilitation and these have failed to prevent this latest set of sexual offending. In Dr Duggal’s view, you would be in the high risk category for reoffending if you were released into the community now. Dr Duggal did not wish to predict the risk of your reoffending “into the distant future”. However, there is nothing in the report which indicates that the risk you now pose would be lessened by the passage of time, even if you had further rehabilitative treatment. Dr Duggal commented that one of the principal advantages of a sentence of preventive detention is that it would allow any treatment gains made through rehabilitative activity to be assessed by the Parole Board prior to your release. His opinion is that this may be of particular value in cases where there has been an inability for offenders to achieve adequate rehabilitation from treatment programmes. That is your position.

[34] I have also been assisted by the report of Mr van Rensburg, a registered clinical psychologist. Mr van Rensburg is of the opinion you have a high risk of sexual reoffending and that your advancing age is not a risk reducing factor given your recent offending.

[35] The next factor I have to consider is the absence of or failure of efforts on your part to address the causes of your offending. As I have said, you have completed two programmes aimed at preventing you from sexually offending against children. In 1989 and 1990, you attended group treatment for sexual offending against children and in 2001 to 2002 you took part in the Te Piriti Program. Ultimately, neither has been effective.

[36] Dr Duggal said your current and prior offending indicates a significant failure of rehabilitation on your part. He took particular note that the most recent offending occurred while you were surrounded by your ‘support team’. These are people upon whom you rely to support you and monitor you in the community. Dr Duggal also
raises concerns as to the “significantly persistent cognitive distortions” underlying your belief that your victims enjoyed the offending. To Dr Duggal, you seemed unperturbed by the prospect of a lengthy prison sentence. All of this combines to undermine your motivation for rehabilitation.

[37] Likewise, Mr van Rensburg believes that your past treatment has not had a curative effect. He summarises your prospects of rehabilitation as follows:

Although he realises that his sexual conduct with children is wrong he accepts that he has a proclivity towards offending against children and appears to be unable to control himself in the face of distressing circumstances, when he would typically seek comfort in sexual interaction with young female children.

[38] Overall, Mr Evans, your prospects of meaningful rehabilitation appear to be bleak. This seems to be something that you yourself have accepted. Nothing in the health assessors’ reports indicates to me that, if you were to participate in a third treatment programme, a different result might be expected. In any event, and notwithstanding the letter that was handed up this morning, you seem to have little interest in doing so.

[39] The next principle is that a lengthy finite sentence is preferable if this provides adequate protection for society. If I sentence you to a finite sentence, you might eventually be subject to an extended supervision order if the Chief Executive of the Department of Corrections applies for one before your release. This would allow the Parole Board to impose special conditions on you when you are released from prison. An extended supervision order can provide real comfort that a high risk offender will be properly monitored to reduce the risk of further offending.

[40] If a finite sentence combined with an extended supervision order would adequately protect the public from your offending then I should give you a finite sentence instead of preventive detention. However, because a sentence of preventive detention provides the ongoing protection of life parole and the ability to recall, a finite sentence to be followed by the available backstop of an extended supervision order should not be viewed as an agreeable alternative to preventive detention.

Decision

[41] Mr Evans, I am sorry this is taking so long and I know that you will be wondering about the relevance of some of the things I have been saying. I have had to speak at such length because you are not the only audience for this sentencing. There are the families of your victims, there are other lawyers, and possibly there are other Courts. I will come now to the nub of it so far as you are concerned.

[42] I have decided that you should be sentenced to preventive detention. In my view, you pose a significant and ongoing risk to the safety of the community and in order to protect the community I should impose a sentence of preventive detention. In summary, this is why:

(a) This is your fourth set of convictions for sexually assaulting young children. The pattern of abuse is clear. You ingratiate yourself with families, and take advantage of their children. You have caused great harm to the community and to the seven children in respect of whom convictions have been entered against you.

(b) There is no real prospect of you being rehabilitated. Despite the two programmes you have undertaken, you still do not seem to appreciate the magnitude of your offending and the harm it has caused. Your sexual attraction towards young girls seems to be something you have accepted about yourself. You seem to have accepted that you are unable to control it. You have a tendency to minimise the consequences of your loss of control. You are reconciled to a lengthy term of imprisonment, and you hope to find camaraderie in that environment.

(c) On the basis of the health assessors’ reports, I assess you as being at a high risk of reoffending. As I have said, you have established a clear pattern of offending. It does not seem that age is slowing you down, nor is there any indication that a finite sentence which would see you released as an even older man would lessen your risk of further offending. I do not think that an extended supervision order would
protect the community from you necessarily. In my view, the flexibility of a sentence of preventive detention would.

[43] I am required to impose a minimum period of imprisonment when I sentence you to preventive detention. I determined the minimum period of imprisonment under a finite sentence in your situation to be two-thirds of the period of imprisonment. That is the maximum I could impose and reflected my view of your high risk of further offending. On a finite sentence of seven years six months’ imprisonment, that would amount to a minimum period of five years. As it happens, five years is the minimum period I can impose on a sentence of preventive detention, and I think it is the appropriate minimum period required for the purpose of safety of the community in the light of the risk posed by you at the present time.

[44] Mr Evans, what that means is that I am going to sentence you to preventive detention. You will remain in prison for a minimum period of five years. After that it is how you persuade the Parole Board about your safety in the community. Preventive detention is not a sentence that throws away the keys. It is a sentence that enables the Parole Board to manage high risk offenders more effectively. If you engage in the rehabilitative programmes that are available to you and you genuinely improve, then after five years you can be released. If you do not, you will stay in prison. It is a matter for you now to take your future into your hands and decide whether you are going to stay in prison or whether you are going to get yourself into a position where the Parole Board will have confidence in you and release you back into the community.

Sentence

[45] Mr Evans, will you please stand.

[46] Following your convictions on the charges now before the Court, I sentence you to preventive detention with a minimum period of imprisonment of five years.

Child Protection (Child Sex Offender Government Agency Registration) Act 2016

[47] Mr Evans, the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 now applies to you. Your registration as an offender under this Act is mandatory as you have committed qualifying offences.

[48] You may stand down.








Brewer J