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THE QUEEN v JOSEPH TERUAKIRIKIRI RIWAI MARTIN [1999] NZCA 222 (12 October 1999)

Background

[1] The appellant was sentenced to preventive detention after pleading guilty to eight counts of sexual offending prior to trial, and being found guilty by a jury on a further 12 charges.He was found not guilty on a further count and discharged pursuant to s347 of the Crimes Act on another.He now appeals against sentence.The charges involved seven complainants, all males, aged from eight to 22 at the time of the offending.Seven of the charges were representative.There were three charges of sexual violation by unlawful sexual connection, five charges of indecent assault on a boy under the age of 12 years, seven charges of indecency with a boy aged between 12 and 16 years, three charges of indecent assault, and two of anal intercourse.The offending generally involved manual and oral stimulation and anal penetration.

[2] The guilty pleas were made in respect of indecent assaults only, relating to three of the victims.Only one victim was spared having to give evidence.

[3] The offending covered a period of 13 years from 1980 to 1994.The appellant occupied a significant position of trust.He was the founder and head of the Maramatanga Movement, a Minister of the New Zealand Spiritualist Church, a cub leader in the Scout movement, and also ran Maori cultural groups. It was largely through these activities that he came into contact with his victims.The appellant would become a close family friend and gain the trust of the victim's parents.The sentencing Judge observed that the parents not only trusted the appellant, but actively sought his help when their children were experiencing problems because of the positive social, cultural and religious activities to which he introduced the boys.It appears that the boys themselves were largely ambivalent about their contact with the appellant.The social activities that the appellant organised frequently involved them staying at his home.On occasion he also took them camping.The appellant would often make one of the boys sleep with him in his bed with the bedroom door locked so as to ensure that they would not be disturbed.Much of the offending occurred on such occasions.

[4] The appellant came to be sentenced as a first offender convicted of an offence against s128(1) of the Crimes Act (unlawful sexual connection).The Court therefore had to be satisfied not only that preventive detention was expedient for the protection of the public but also that, having regard to the requisite psychiatric report and any other relevant report, there was a "substantial risk" that the appellant would commit a specified offence upon release.She had before her a pre-sentence report and a psychiatric report.

Decision of the sentencing Judge

[5] The sentencing Judge observed that the offending was of a very serious nature, particularly given its extent.The impact on the victims and their families has been appalling.For instance, one has been diagnosed as suffering from post-traumatic stress disorder; another has been admitted to hospital on a number of occasions with severe stress-related symptoms.The offending has had a grave impact on the victims' relationships with others.

[6] The Judge considered that there were two possibilities - a finite period of imprisonment, or a sentence of preventive detention.She noted the requirements of subs(2) and (3A), referred to in para [4] above and referred to this Court's decision in R v Leitch [1998] 1 NZLR 420.

[7] The Judge acknowledged that preventive detention was a severe penalty, but considered that it was appropriate in this case.In reaching this conclusion the Judge took a number of factors mentioned in Leitch into account:

[a] There was a pattern of offending over a significant period against young boys with a modus operandi of gaining the trust of the victims through various activities.Most of the victims were, for a variety of reasons, already vulnerable.

[b] The offending took place over a considerable period of time.While past response to rehabilitation was irrelevant, as the appellant had not previously appeared, the offending took place over a period of some 13 years during which the appellant showed no signs of attempting to cease this behaviour.

[c] The appellant's attitude to his offending and to the victims was significant.It appeared from the psychiatric and pre-sentence reports that he did not take full responsibility for his offending.The appellant told his probation officer the touching was accidental.His claim that he was not attracted to boys or adolescents was also at odds with his claim that his sexual contact with one of the complainants was consensual.

[d] It was not unusual at sentencing for an offender to acknowledge remorse and responsibility and promise not to re-offend, but this had to be weighed against the history of repeated offending over an extended period and other comments made by the offender prior to sentencing.The Judge referred to what the psychiatrist had called the appellant's `considerable ambivalence'.She considered that he did not yet fully accept that he had offended and that the seven victims were indeed victims."You still have an attitude that these were accidental events and that is a factor that causes me concern when it comes to assessing the risk of re-offending."

[e] The psychiatrist was unable to predict what would occur to the appellant while in prison, what his response to any treatment would be, or the circumstances in which he might be released.The Judge noted that the appellant had been diagnosed by the psychiatrist as a paedophile whose sexual interest had been sustained over a significant period of time.The psychiatric report also showed he had limited awareness of the impact of his behaviour on his victims, and had shown "limited motivation" in seeking help to control this behaviour.

[8] The appellant did appear willing to engage in a programme for treating sex offenders.He also had the continuing support of his whanau, and had no previous convictions.Mr Foley had submitted that there was evidence that the appellant had removed the locks from his bedroom door and slept in a single bed to prevent a recurrence of offending.He did this before his arrest.He had also returned from the United States when he learned that the police wished to speak to him.The Judge, however, expressed her lack of confidence that offending had ceased well before his arrest.

[9] In the Judge's view the most significant risk factor was the length of time over which the offending occurred continuously, the number of victims and the sustained nature of the offending.The Judge could not be satisfied that a term of imprisonment, even with treatment, could ameliorate the risk of re-offending to the extent where the public would be safe.A sentence of preventive detention was therefore found to be appropriate.

Submissions for the appellant

[10] In essence, the grounds of appeal put forward for the appellant are:

[a] The sentence was inappropriate as the sentencing Judge could not in the circumstances have been satisfied that the requirement in s75(3A)(b) of the Criminal Justice Act 1985 - that there was a `substantial risk' that the Appellant would commit a specified offence upon release - was met.

[b] The sentence was manifestly excessive, as, in all the circumstances, a finite term of imprisonment would have met sentencing objectives.

[11] As to the first ground, counsel for the appellant submitted that, on the material before the Court, the Judge ought not to have been satisfied that there was a substantial risk of re-offending following release.The pre-sentence report was very brief, and counsel said that the probation officer appeared to have been slightly confused as to the precise details of the charges on which the appellant was being sentenced.Many of the appellant's explanations were at odds with pleas, evidence and subsequent instructions to counsel, suggesting to counsel that there had been poor communication between the appellant and the probation officer.The officer also did not appear to realise that the appellant had ceased offending some time before.The report recognised that the appellant was likely to benefit from treatment, and recommended imprisonment, not preventive detention.Secondly, the psychiatrist was unable to predict whether there was a substantial risk of re-offending. The appellant seemed to have been co-operative and frank, and the report appeared to have found him suitable for treatment.

[12] It was submitted that the Judge erred in failing to resolve inconsistencies in the reports at hand and failing to take into account or give sufficient weight to the following relevant factors:

[i] The appellant had of his own volition stopped offending a significant time prior to arrest.The last date of offending referred to in any complaint was 30 April 1994 and the appellant presented himself to the police and was interviewed on 2 November 1998.In light of this Mr Foley criticised the Judge's statement that she was "not confident" that offending ceased well before the arrest.He also said that the Judge was wrong to treat the offending as continuous for 13 years.There had been a period of 18 months starting in 1989 when Mr Martin had stopped his offending.This was said to be evidence of his wish to control his offending.

[ii] The Judge made no mention of the fact that the appellant commenced counselling prior to the trial.This was said to be further evidence of the appellant's willingness to undergo treatment and reduce the risk of re-offending on release.

[iii] The appellant has suffered from a number of small strokes and this has apparently resulted in some memory deterioration.The psychiatric report noted that the appellant presented with a number of problems relating to his long-term memory, often being unable to give dates or describe details of events, and that it was almost as if he was forced into accepting that he had offended because other people said so, and not because he truly believed it. Counsel for the appellant submitted that these memory problems may have been at the heart of what the Judge had considered to be the appellant's inability to accept his offending.

[iv] The Judge gave inadequate weight to the appellant's eight guilty pleas. The Crown and the Court were advised a week prior to trial.The sentencing Judge had referred only to the `late' entry of the pleas.

[v] The appellant has no previous convictions.

[vi] The appellant is willing to engage in a treatment programme.

[13] It was also submitted that the Judge gave undue weight to what she considered was the appellant's failure to accept full responsibility for his offending.Counsel submitted that the evidence referred to by the Judge with respect to this matter must be balanced against the appellant's memory problems and the information contained in the psychiatric report.It was unfair to infer an extra element of risk because of failure to acknowledge some of the offending when that failure may have been because Mr Martin simply had no recollection of some events.This may even have been a blocking out resulting from his own suffering of abuse as a child.

[14] As to the second ground of appeal, it was submitted for the appellant that the sentence is manifestly excessive, as, in the circumstances, a finite term of imprisonment would have met the sentencing objectives.The appellant pursues alternative arguments:

[a] Should this Court rule that the Judge erred in finding a substantial risk of re-offending, an appropriate finite term of imprisonment must be determined. Counsel for the appellant discussed a number of sentencing principles and argued that a term of six to eight years imprisonment was appropriate in the circumstances of the case.

[b] Alternatively, if this Court were to consider that it was open to the sentencing Judge to conclude that there was a substantial risk, in all the circumstances of the case she ought not to have exercised her discretion to impose preventive detention.Even where the Court considers that the test of `substantial risk' has been met, it must still consider whether the protective purpose of preventive detention can reasonably be met with a finite term of imprisonment.A finite sentence was untested in this case of a first offender and it was open to the Court to consider a sentence which would be less severe than preventive detention, but of greater severity than a sentence related to the gravity of the offence with only the usual weight being given to the prevention of re-offending.The psychiatric report states that the appellant requires treatment as soon as possible and over a sustained period.It was submitted that an indeterminate sentence would be far more severe in its effect than a finite sentence.It was counsel's understanding that treatment is not provided until near the end of the indefinite term.Mr Foley suggested that given the appellant's age and poor health, the prospect of his being released in his lifetime seems remote.In the circumstances, a finite period of imprisonment would be appropriate.

Conclusions

[15] Notwithstanding the industry with which Mr Foley has argued his client's case we are not persuaded that the sentence ought to be replaced with a finite term.There was a proper basis for the view taken by the Judge that there is a substantial risk of re-offending upon release and that a finite term would not sufficiently protect the public.

[16] Apart from the nature of the offending, the number of victims and the length of time over which it occurred (which the psychiatrist noted as a negative prognostic feature), the most disturbing aspects, so far as risk is concerned, are Mr Martin's unwillingness to acknowledge the full extent of his wrongdoing and his ambivalent attitude towards treatment.He attributes his professed inability to remember committing any acts of oral or anal sex on any victim to his having suffered strokes.It is curious therefore that he has been able to remember less serious offending.Miss Thomas, for the Crown, drew our attention to an answer given by Mr Martin in cross-examination. Mention was made that on the police video of an interview with Mr Martin the detective had suggested that perhaps because of the strokes he could not remember the serious side of his offending.He was asked in cross-examination what he said about that and replied:

No, with the medication I am on at the moment I feel that has helped my memory a lot and I am able to go back and rethink and put things right which I am doing at the moment.

[17] Even if Mr Martin is given the benefit of this doubt (the psychiatrist said there was no evidence of malingering and it was probable he might have some form of dissociative amnesia), nevertheless the appellant remains unprepared to accept the verdicts of the jury, in respect of which he is reported to have feelings of bitterness and resentment.This is consistent with the Probation Officer's report that Mr Martin claimed that his "touching" was of an accidental nature, usually resulting from him and the victim inadvertently rolling together in the night.He had also told the Probation Officer that his sexual activity with one victim was of a consensual nature.

[18] Mr Martin also seems to have exhibited no sympathy towards his victims and even to be unsure whether his behaviour was damaging to them, notwithstanding his having heard them give evidence.

[19] The psychiatrist was obviously concerned that he was only accepting that he had offended because that was the view of others and not because he truly believed it.She had concern over his intellectual ability to grasp the complexity of his behaviour in relation to sexual offending.She was unsure how effective therapeutic input would be.She was anxious that Mr Martin should receive treatment from a sex offender unit and thought it "possible" he might experience some positive response, but the overall impression gained from a careful reading of her report is one of some pessimism.

[20] Mr Foley ensured that we did not overlook the fact that the offending was not continuous, in that there was an 18 month period from 1989 when no offending took place.There was also a period of almost 4 years between the last of the offending and the arrest, which was not triggered by any further action on the part of Mr Martin.The changes which the appellant made to his bedroom arrangements have already been noted.

[21] We consider, however, that having read the reports, particularly the psychiatric report, the Judge was right to take a cautious and sceptical view concerning the possibility of further offending.

[22] Counsel criticised the Judge for expressing a lack of confidence that offending had ceased.If that is literally what the Judge intended to say, there is some force in the criticism of this sentence, taken in isolation.If the Judge was expressing concern that the Court could not be confident even after four years that the appellant would not lapse again (given the fact that he had stopped once before and started again after an extended period), we can only express our agreement.We appreciate that there was the positive aspect that the appellant was willing to begin counselling before the trial, though we understand counselling did not progress very far.But then at the trial he maintained a resolute denial of most of the offending, including all of the more serious matters.

[23] Considering that the Judge was right to assess the appellant as presenting a substantial risk of re-offending upon release, we have turned our minds to whether a lengthy finite sentence (which would need to be at least 10 years because of the seriousness and extent of the offending) would sufficiently protect the public, and in particular young boys, against this risk.But we are of the view, again in agreement with the Judge, that because the appellant's attitude remains so ambivalent and the prognosis for treatment is so uncertain, it is not possible to be satisfied that a sentence other than an indefinite one will meet the fundamental protective purpose of s75.In saying this we have not overlooked the evidence of Mr Martin's medical condition and his likely age at the time of release.

[24] For these reasons we dismiss the appeal.

Solicitors

Crown Law Office, Wellington