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THE QUEEN v KEVIN SIMMONS [2000] NZCA 195 (7 September 2000)

PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

Introduction

[1] The 45 year old appellant pleaded guilty to five charges of burglary, one of kidnapping, one of indecency with a boy under 12, and one of sexual violation by unlawful sexual connection. In the High Court he was sentenced to preventive detention on the sexual violation charge and concurrent finite sentences of imprisonment on the others - eight years for kidnapping, four years for indecency and two years for each of the burglaries. In this Court he appeals against the preventive detention sentence only.

Factual background

[2] For most of his life the appellant had had sexual fantasies about infancy, the fantasies involving both himself and others. He expressed this by wearing nappies to bed from the age of nine, and by various forms of masturbation involving infant fantasies and infant paraphernalia. Until September 1999 his sexual preoccupation remained a purely personal and private one.

[3] Then over a period from 25 September 1999 to 8 April 2000 his preoccupation began to impact on others. During that period he broke into five isolated farm houses, each time taking nappies and baby products. On 9 April 2000 events took an even more serious turn. The appellant was driving along a rural road when he came across a three and a half-year old boy walking along the side of the road with his six-year old sister. As bad luck would have it, the children were in the process of walking about 100 metres from one parent to the other. There is no suggestion that anything was planned on the appellant's part. He stopped, placed the boy in his car, and drove off. He took the boy about four kilometres to a secluded area down an isolated metal road. There he undressed the boy and stroked the boy's penis while masturbating himself. He then inserted a finger into the boy's anus and masturbated himself until he ejaculated over his own hand. He dressed the boy, drove him back to the main road, and told him to knock on the door of a nearby house.

[4] A passing motorist found the boy one hour and 20 minutes after he had gone missing. The adverse emotional consequences for the boy, his sister, his two brothers and his parents, were devastating. It is not disputed that the incident will have repercussions for them in one form or another for a long time to come.

[5] On being apprehended, the appellant made a full and immediate confession to the police. He pleaded guilty to the charges at the first reasonable opportunity.

Reasons for sentence

[6] The sentencing Judge framed his reasons for sentence around the possibility of preventive detention under s75(1) of the Criminal Justice Act 1985. He proceeded through each of the relevant considerations indicated by this Court in R v Leitch[1998] 1 NZLR 420.

[7] The Judge acknowledged that the appellant had not offended before, that he came before the Court for only one incident of sexual abuse, and that it was an unpremeditated one at that. However, he rightly described the incident as "gross" bearing in mind the kidnapping, the age of the child, and the nature of the violations. He rightly described the effect upon the child and his family as "profoundly detrimental". He referred to mixed signals in the expert reports over responsibility and remorse but acknowledged the immediate confession, the expressions of remorse in the police interview, the early pleas of guilty, and the lack of any attempt to bargain over the pleas which might have been entered to the various charges.

[8] The Judge then turned to the appellant's predilection for offending in the light of the three professional risk assessments he had before him. He rightly recognised that these assessments were central to the preventive detention issue.

[9] From the presentence report the judge noted the slightly curious observation that "your motivation to change is assessed as low because of your socially isolated lifestyle and low self opinion". That was to be contrasted with the appellant's own statement that "It doesn't matter how I feel. It is important I address what I have done" and the appellant's willingness to attend a child sex-offenders' programme such as Ti Piriti. The Judge noted that according to the Department's risk assessment criteria he was "not assessed as being a high risk of reoffending person".

[10] Secondly, the Judge had before him two reports from a psychiatrist, Dr Fernandez. The Judge noted the lack of remorse recorded from that source, lack of appreciation of the effect on the boy, inability to recognise the triggers which had contributed towards his offending, lack of insight, social incompetence and the fact that the age of the victim was a high risk factor. Most importantly, he noted the conclusion that "If the offending is indicative of previous or other acts then you are a high risk to the community. There is, however, no evidence of such other acts."

[11] Thirdly, the Judge had before him a psychological assessment from a registered psychologist, Mr Woodcock. From that source the Judge noted the lack of full appreciation of the seriousness of the offending and consequences to the boy, although some remorse had been expressed; confirmation that the appellant had a nappy fetish and that nothing other than the wearing of nappies would ever afford him the sexual gratification obtained from their use; the fact that his paraphilia had crossed a critical boundary from passive (i.e. not involving the participation of non-consenting partners) to the active participation of a non-consenting partner as was the case in paedophilia, albeit not manifesting all the essential symptomatology which would enable a diagnosis of paedophilia; and the presence of some factors increasing the risk of reoffending balanced by others which reduced it. The Judge attached particular importance to a passage in Mr Woodcock's report from which the Judge concluded that "you have manifested and are manifesting, paraphilic sexual ideations, in particular paedophilia, and that those ideations have crossed that critical barrier between being non-physically intrusive of the victim, to now being actively, physically abusive and/or violent of the victim. Consequently Mr Woodcock was of the opinion that he was obliged to advise this Court that he believed you to be a danger to certain vulnerable members of the community." From that source the Judge concluded that there was a danger to vulnerable members of the community.

[12] The Judge acknowledged that there were factors by way of mitigation - absence of breach of trust, only one victim, only one instance, minimal physical harm, early pleas of guilty, lack of attempt at tactical advantages in entering pleas, acceptance of responsibility and remorse in the initial interview, and a sensible prospect of cure if offered treatment. However his concern was that "you appear to have no inclination at all towards relinquishing your dependence on the wearing of nappies for your sexual gratification. It seems to me that while this continues it carries with it the likelihood that your fantasising will continue to encompass the involvement of young children." That was a sentiment which the Judge repeated, stating that "I am satisfied that while you continue to maintain your fetish relating to the wearing of nappies, and given the offending in this case, there is a substantial risk that you will offend in a similar manner when released."

[13] The Judge then turned to the question whether the public might be adequately protected by the imposition of a finite sentence. After referring to various precedents he considered that if a finite sentence were imposed it would be 15 years from which 4 years would be deducted for the guilty plea. However he considered that the public would not be adequately protected by a finite sentence of 11 years given concerns that the appellant would not respond to treatment, his unwillingness to consider treatment, his movement to the involvement of "non-willing persons" subjected to burglaries, the fact that the victims were likely to be very young children and the "extreme behaviour" exhibited on the instant occasion. Taking those considerations into account, the Judge concluded that preventive detention had to be imposed.

Preventive detention principles

[14] Section 75(1)(a) of the Criminal Justice Act relevantly provides that where, as here, an offender is convicted of an offence against s128(1) of the Crimes Act, preventive detention can be imposed if the conditions posed by subss (2) and (3A) are satisfied. Unlike subs (1)(b), subs (1)(a) requires no earlier conviction for a specified offence. Subsections (2) and (3A) provide:

(2) Subject to the provisions of this section, the High Court, if it is satisfied that it is expedient for the protection of the public that an offender to whom this section applies should be detained in custody for a substantial period, may pass a sentence of preventive detention.

...

(3A) A court shall not impose a sentence of preventive detention on an offender to whom subsection (1)(a) of this section applies unless the court -

(a) Has first obtained a psychiatric report on the offender; and

(b) Having regard to that report and any other relevant report, -

is satisfied that there is a substantial risk that the offender will commit a specified offence upon release.

[15] The pertinent preconditions are that (i) there must be a substantial risk that the offender will commit a specified offence upon release and (ii) it must be expedient for the protection of the public that the offender be detained in custody for a substantial period. Once those preconditions are satisfied the Court has a discretion whether to impose preventive detention. At that point the principal consideration will be whether the protective purpose of preventive detention can reasonably be met by a finite sentence of imprisonment: see R v Leitch, supra, at 429.

[16] The Court can not conclude that there is a substantial risk, and a need to detain for a substantial period in order to protect the public, unless a positive platform for those conclusions has been laid in the evidence. As Mr France rightly pointed out, there is nothing in the Act which requires those conclusions to be articulated by an expert in a report. Clearly the Court will derive much assistance from the reports of experts. In particular in a case where a single conviction is the basis for the sentence the Court must have before it the psychiatric report referred to in s75(3A). But in the end the conclusions are for the Court itself.

Substantial risk of re-offending in this case

[17] The first substantial ground of appeal was that the Judge had been unduly pessimistic in his interpretation of the reports. In that regard the appellant sought an adjournment in order to obtain the report of an additional psychiatrist. We declined leave. In general appeals are to be conducted on the evidence which had been put before the Court appealed from. We are also satisfied that the following material provides a sufficient basis for dealing with the appeal.

[18] Dr Fernandez provided the necessary psychiatric report. Mr Niven pointed out that she did not say that the appellant represented a high risk to the community. All she said was that he would be a high risk if his offence were indicative of other such acts. Since there was nothing to suggest that there had been other acts of that nature, the effect of Dr Fernandez's reports was not to support a substantial risk finding.

[19] As to Mr Woodcock's report, Mr Niven advanced essentially three points. First, he submitted that in the court below the Judge had failed adequately to distinguish between paraphilia and paedophilia. It would have been helpful if Mr Niven or Mr Woodcock had expressly defined those terms but in the context of this report Mr Woodcock seems to have contemplated by "paraphilia" abnormal sexual behaviours and preoccupations which would not, of themselves, necessarily present a danger to others.That he seemed to be contrasting with "paedophilia" in the sense of a sexual attraction to children of a kind which presented a danger to them.

[20] Thus Mr Woodcock considered that at the time of examination, and probably for much of his life, the appellant manifested all the essential symptomatology for a diagnosis of "paraphilia-fetishism (DSM IV 302.81)". He had a nappy fetish and preoccupation with sexual fantasies revolving around infants, not involving the participation of non-consenting partners, and apparently not representing a danger in itself. That Mr Woodcock seemed to be contrasting with a state which he described as "paedophilia". He considered that at the time of the present episode the appellant's "paraphilia has crossed a critical boundary in that he has moved from being passive (i.e. not involving the participation of a non-consenting partner) to actively involving the participation of a non-consenting partner such as is the case with paedophilia (DSM IV 302.2)".

[21] Whatever the labels used, the importance of the distinction between the two states lies in the prospects for treatment. The Judge had concluded that the appellant appeared to have no inclination at all towards relinquishing his dependence on the wearing of nappies for sexual gratification; that while that fetish continued, it carried with it the likelihood that his fantasising would continue to encompass the involvement of young children; and that there was therefore a substantial risk that he would re-offend when released. In his view one of the critical features requiring preventive detention rather than a finite sentence was the appellant's "apparent unwillingness to consider treatment which could threaten your form of sexual expression". We accept Mr Niven's submission that while the appellant was reluctant to give up his nappy fetish, Mr Woodcock had not regarded the fetish in itself as the danger. The fetish had been present for most of his life without adverse consequences for others. As we understand Mr Woodcock, it was the very recent propensity to turn to a non-consenting partner which required treatment. Significantly, the appellant was willing to undertake treatment for any danger that he might present to children.

[22] In this context Mr Niven's second submission was that Mr Woodcock had concluded that there was a substantial risk of re-offending only if the appellant failed to receive medical/psychological intervention. Since a finite sentence would foreseeably involve an intervention through one of the special programmes for treatment of sexual offenders, Mr Woodcock was not supporting a substantial risk conclusion either. Mr France rightly pointed out that there were no guarantees that treatment would be taken up by the appellant or that it would be successful. We accept that there can be no absolute guarantees in such matters, or indeed in most human affairs. However we note the availability of such programmes in prison and the appellant's willingness to undertake them.

[23] Thirdly, the Judge had given central importance to Mr Woodcock's comment that the appellant's ideations had "crossed that critical barrier between being non-physically intrusive of the victim, to now being actively physically abusive/violent of the victim. Consequently I am obliged to advise the Court that I believe this man to be a danger to certain vulnerable members of our community." We agree that if the last sentence stood alone, and represented Mr Woodcock's main conclusion, it would have been a matter of grave concern. However, the sentence is tucked away at the end of an appendix headed "psychometric tests results", is expressed in terms of his present state without treatment, and in context does not seem intended as Mr Woodcock's overall conclusion. His overall conclusions are found in the main body of the report itself where Mr Woodcock is much more optimistic. He concludes on this note:

RECOMMENDATION

It should be noted by the Court that there is a substantial risk of Mr Simmons re-offending if he fails to receive the medical/psychological intervention mentioned in the body of this report. I would be of the opinion that Mr Simmons needs to experience in some measure the disapproval of society in regard to his offending. It is unfortunate that he is already growing comfortable with incarceration. If the Court does incarcerate this man we neither treat him, nor provide a deterrent to future offending, nor provide the retribution his offences demands. The only way I see the Court giving some expression to the conflicting demands of the victim, society, and Mr Simmons' need for treatment, is through a sexual offender's rehabilitation programme such as those run at Ti Piriti (Auckland) or Kia Marama (Christchurch).

Treatment Considerations

Mr Simmons' interest in and motivation for treatment is typical of individuals being seen in treatment settings, and he appears more motivated for treatment than adults who are not being seen in a therapeutic setting. His responses suggest an acknowledgement of important problems and the perception of a need for help in dealing with these problems. He reports a positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility. In addition, he reports a number of other strengths that are positive indications for a relatively smooth treatment process and a reasonably good prognosis. (emphasis added).

[24] Taken overall, the three expert reports were cautiously optimistic. The probation officer did not consider that the appellant represented a high risk. Dr Fernandez effectively agreed, given the lack of any basis for suspecting prior offending. The statute contemplates that particular significance will be attached to her opinion as the psychiatrist. Mr Woodcock saw treatment as an effective antidote to risk and combined that with a positive report on the appellant's attitude to treatment. Ultimately, of course, it was for the Court to arrive at its own conclusions. There are no guarantees in these matters. However it is worth recalling that pursuant to s75(2) and (3A) the Court must not order preventive detention unless it is "satisfied" that there is a substantial risk of re-offending. We do not think that that threshold was crossed.

Preventive detention as opposed to lengthy finite term

[25] The Judge also appropriately asked himself whether the public could be adequately protected by the imposition of a finite sentence. A series of factors persuaded him that the protective purposes of preventive detention could not be attained by a finite sentence. These included the risk that the appellant might not respond to treatment, his apparent unwillingness to consider treatment which could threaten his form of sexual expression, the crossing from passive to active sexual expression, the burglaries which led up to the sexual incident itself, the likely age of any further victims, and the fact that the appellant's behaviour on the instant occasion could properly be described as "extreme".

[26] These are all pertinent matters but they need to be put in the context already discussed. Nor should one overlook the fact that this was an isolated and unpremeditated sexual offence, the early confession, the indications of remorse, the early plea of guilty and the apparent willingness to be treated for any danger he might now pose. The case does not differ from the many cases of serious sexual offending which have attracted substantial finite prison sentences, usually coupled with directions that the offender be considered for special sexual treatment programmes. Of special importance is the fact that it was a first offence. Section 75(1)(a) contemplates that preventive detention can be imposed for a first offence but it seems unlikely that many will fall into this category. We are satisfied that this case does not qualify. Preventive detention was not justified.

Length of finite sentence

[27] There are no tariffs in respect of sexual violation by unlawful sexual connection but, as was said in R v M(CA 459/99, 23 February 2000), such cases often involve starting points ranging from two to five years on conviction after trial and before allowing for mitigating factors. In R v Edwards(CA 259/96, 3 September 1996) a sentence of seven and a half years following a guilty plea was reduced on appeal to six years in circumstances where a stepfather was guilty of the persistent digital penetration of the vagina and anus of a ten year old girl over a period of ten months. In that case there was no equivalent abduction but equally there was a gross breach of trust not present in this case.

[28] Approaching the matter from an abduction perspective, in R v Bond (CA 302/95, 18 November 1995) nine years was reduced on appeal to seven and a half years where the appellant had pleaded guilty to a charge of abducting a 37 year old woman with intent to have sexual intercourse with her, the circumstances involving prolonged terror, considerable violence, and forced abduction in the boot of the offender's car.

[29] Combining sexual abuse and abduction, a sentence of 12 years was upheld in R v Harbour[1995] 1 NZLR 440 where the appellant with a history of sexual offending abducted a three year old boy from his home at night, sodomised him, rendered him unconscious by blows, and left him half naked in wasteland near his home. In virtually every respect that case was worse than the present one although it is also important to note that it preceded the increase in the statutory maximum from 14 years' imprisonment to 20 years, it was a Solicitor-General's appeal, and the full maximum of 14 years could have been sustained.

[30] In this case only the sexual violation is formally before this Court but the pattern of concurrent sentences was such that the sentence on this charge needed to reflect the totality of the offending. It is therefore appropriate to take into account the background of five burglaries, the abduction, the terrifying consequences for the family, and the ultimate abandonment of the child, in addition to the core facts of the sexual violation itself. Taking all of those considerations into account we consider that an appropriate starting point is 12 years' imprisonment. After deduction of three years for the guilty plea and early co-operation with the police, we conclude that a net term of nine years is required.

Result

[31] The appeal is allowed and the sentence of preventive detention quashed. In its place the appellant is sentenced to imprisonment for a term of nine years on the sexual violation charge. The Judge's original direction that the appellant be considered for treatment in an appropriate sexual rehabilitation programme will stand.

Solicitors

Crown Law Office, Wellington