Home | Databases | WorldLII | Search | Feedback Court of Appeal of New Zealand

THE QUEEN v GRAHAM KEITH PORTSMOUTH [2000] NZCA 306 (26 October 2000)

[1] This is an appeal against the imposition of the sentence of preventive detention.An appeal against conviction was not proceeded with and is accordingly dismissed.

[2] The appellant was convicted after a jury trial in the District Court at Wellington on two counts of sexual violation by unlawful sexual connection and one representative count of indecent assault upon a male.

[3] The circumstances of the offending are summarised in the sentencing remarks of the High Court Judge who carried out the sentencing on 30 June 2000 after the District Court Judge had declined jurisdiction on the ground that the appellant was eligible for the sentence of preventive detention.

From August until early December 1998 while you were serving a longer sentence in Rimutaka Prison your biological son, the complainant in these matters, also became a serving prisoner at that institution.He was then aged 17.He had not lived with you but the two of you were acquainted.He asked to be put in your wing at the prison to get to know you better.Indeed, it seems, all went well for the first few months then one day while he was lying on the bed in your cell watching your television you entered and put your hand down his trousers and fondled his genitals.You then put his penis in your mouth.He was surprised and shocked and frightened.As soon as he could he left the cell.That indecent assault is one instance of the representative count 2, and is the sexual violation charge alleged in count 1.In the weeks which followed you took a number of opportunities again to fondle his genitals when he was in his bed in his own cell.The oral sex was not repeated on those occasions. They are the remaining indecent assaults in representative count 2.Last, you arranged for him to wake you up one morning at about 6.30 a.m. in your cell. He came in and sat on the bed and did so.You grabbed him a in bear hug and forced his head down on to your penis.He had to struggle free.That is the third count on which you appear.Soon after that he was discharged from the prison and within a few months complained.

[4] The sentencing Judge had before him at the time of sentencing a pre-sentence report including the appellant's criminal history and a report on his progress since he has been in prison in the Alternatives to Violence Project.The Judge also had a lengthy psychiatric report from Dr Crawshaw, Consultant Forensic Psychiatrist with Capital Coast Health.Those reports describe the appellant as a 49 year old man with a troubled upbringing dominated by a period of sexual abuse by an uncle commencing when he was about 10 years old.He has had difficulty in sustaining relationships but appears always to have been gainfully employed.He acknowledges that violence has always been a problem for him although since being incarcerated he has responded well to the Alternatives to Violence Project having gained the confidence of the co-ordinator to the point of being made a qualified facilitator.The appellant has no psychiatric history but has suffered recurrent depressive episodes which appear to occur in the context of post-traumatic stress disorder (PTSD) seemingly linked to the sexual abuse as a child.

[5] Prior to 1994 the appellant had convictions only for assault and driving with excess blood alcohol.However in 1994 he was convicted of four dishonesty offences and of two representative charges of rape and two representative charges of indecent assault.The sentencing notes relating to that earlier sexual offending were made available to us.It occurred over a period of about 18 months to two years against two sisters who were between the ages of 12 and 16 years.The offending began with the older sister, progressing from touching to digital penetration and more serious offending culminating in rape committed on a regular basis and accompanied by threats of the same offending against the younger sister should there be disclosure.Unbeknown to the older sister there was in fact offending of the same kind against the younger sister over the same period.The offending did not come to light until January 1993 and resulted in a sentence on 29 September 1994 of imprisonment for nine years.

[6] Upon the sentencing with which we are concerned the Judge expressed some difficulty through the absence of any clear opinion in the psychiatric report on the likelihood of future offending following release.This appears to have been due partly to the continued denial by the appellant of the offending both on the earlier occasions and those presently under consideration.

[7] The Judge reviewed the conditions for the imposition of a sentence of preventive detention as set out in s75 of the Criminal Justice Act 1985 in terms which have not been criticised on appeal.He then reviewed the personal circumstances of the appellant and identified points indicating a finite sentence might be adequate and then points indicating the contrary.He weighed those matters along with the seriousness of the offending.In that regard he did not consider the offences giving rise to the first two charges as sufficiently serious to warrant preventive detention.He took a different view, however, on the second incident of sexual violation, the subject of the third charge, because it was accompanied by a degree of violence.He weighed all the factors giving particular emphasis to the seriousness of the prior offending, the circumstances of the recurrent offending, the denial by the appellant and his reported insensitivity towards his victims, the seemingly complete inadequacy of the previous finite sentences as deterrence and the absence in the psychiatric report of any assurance against re-offending.He expressed himself satisfied that preventive detention should be imposed in the interests of protecting the public.

[8] Two grounds of appeal were advanced.The first was that the Judge inappropriately distinguished between counts one and three for sentencing purposes.It was submitted that there is no sufficient justification for regarding the second of the sexual violation incidents as so much more serious than the first as warrants the harsh course of imposing the sentence of preventive detention.It was said that the violence accompanying that offence was not to be categorised as serious violence having involved no more than grabbing the victim in a bear hug and forcing his head down onto the appellant's penis after which the victim struggled free.

[9] The second ground of appeal was that in terms of the judgment of this Court in R v Leitch [1998] 1 NZLR 420 a finite sentence of imprisonment should have been imposed and would be sufficient to serve the interests of the public. It was submitted that the nature of the offending, its gravity, and time span, were not of such seriousness as to warrant the indefinite sentence on top of the lengthy sentence still being served for the past offending.Upholding the sentence would mean that the appellant would be incarcerated for a minimum of 16 years without there having been established any real risk of offending on release or any predilection or proclivity for a particular type of offending. It was submitted that the sentence of preventive detention is excessive in the circumstances.

[10] For the Crown Mr France submitted that the particular case is one calling for assessment in the light of judicial experience and that it was open to the Judge to be satisfied that the pattern of offending called for the indeterminate sentence.He referred particularly to the timing and circumstances of the offending suggesting a strong and concerning inclination towards sexual offending.He said that whatever it is that motivates the appellant it clearly has a significant grip over him to have resulted in repeat offending while in prison after having served a significant part of a lengthy sentence.He referred also to the common characteristic of the offending against victims over which the appellant had some influence and to his continued denial of the offending with the consequent ongoing risk.

[11] A very significant factor to be considered with reference to preventive detention is whether the risk of future offending is such that protection of the public demands indefinite imprisonment until such time as the authorities can be satisfied that the risk has dissipated.The difficulty of predicting conduct at a time years into the future cannot be over-estimated and this is not the first case in which a psychiatric report has expressed difficulty in offering an opinion.In the end, of course, it is a matter for the Court to make the necessary assessment in light of all the circumstances of the offending and the offender.

[12] Such guidance as is available in this case is to be found first in the pre-sentence report where the probation officer's assessment is as follows:

Whilst Mr Portsmouth may have done considerable work on his use of violence, this process however has no relevance to sexual offending.As stated in the psychological report dated 22 December 1999, "Mr Portsmouth's risk of sexually re-offending is identical to the risk which existed when he was first imprisoned".In fact it can only be assessed as heightened given his current offending before the Court.Mr Portsmouth appears to reveal the same cognitive distortions detailed in the report prepared by Mr Skelton.His limited understanding of what constitutes a high risk situation in terms of sexual re-offending, his failure to demonstrate victim empathy, his inability to accept responsibility for sexually inappropriate behaviour makes it highly unlikely that Mr Portsmouth would be able to employ the relapse prevention process.

Mr Portsmouth is reluctant to undertake any type of formal intervention in relation to his sexual offending.He could offer no explanation for why his stepchildren and then his own son would make disclosures of this nature.He identified himself clearly as a victim and re-iterated this throughout the interview.Effectively this would exclude Mr Portsmouth from inclusion in a treatment programme for child sexual offenders, either in the prison system or in the community.

[13] The psychiatric report expresses the following views:

In terms of the issues the Court has asked me to address with respect to preventative detention.I must advise the Court that there is limited assistance that the Court can be offered from a psychiatric report.The prediction of future offending or dangerous behaviour is notoriously inaccurate.In general terms an established pattern of behaviour is likely to predict further behaviour given the same or similar circumstances that produce the pattern of behaviour.A psychiatrist has particular expertise in terms of identifying psychopathology and the possible link between that psychopathology and patterns of behaviour.

In this man's case there is very clear linkage between his PTSD and the consequent changes in his behaviour and his problems with violence and anger. It is possible that there may well be links between his sexual abuse and sexual difficulties in his life and in particular the difficulties he has had in establishing and maintaining relationships.I have difficulty addressing the issue of likelihood of re-offending, given Mr Portsmouth's denial of any significant offending pattern.It is possible that his indecent assault of his stepdaughter may have had its links to his PTSD and own sexual abuse.

I have ethical concerns in commenting on this man's likely risk of re-offending given the difficulties in predicting re-offending, particularly if it is not linked to psychiatric symptomatology.

[14] A point of some concern in this case is that the appellant is reported as having been troubled with violence through his life but having no memory of certain episodes of violence afterwards.We are unable to say whether this has any bearing upon his continued denial of the sexual offending in the face of successive convictions.We should record in this respect that the appellant does seem more recently to have acknowledged that he may have engaged in some minor offending against the older of the two girls in the earlier period.Also of concern is the fact that the offender, while he continues to deny the offending, will not receive treatment while in prison.

[15] It is hardly open to the appellant to contend that the risk of re-offending should not be inferred, when the psychiatric report does not indicate that risk, when the inability to express any clear opinion has been contributed to by denial of the offending and refusal to come to terms with it.

[16] We do have the generally accepted proposition, subscribed to in the psychiatric report, that in general terms past behaviour is a pointer to future conduct in similar circumstances.When considering the past conduct it is not appropriate to limit the consideration to the offence for which the sentence of preventive detention has been imposed.A much broader approach is required. We do not understand the sentencing Judge to have adopted any different course merely because he indicated that he regarded only one of the incidents of sexual violation as warranting the indeterminate sentence.Similarly, we think that to consider the pattern of behaviour of this appellant as confined to offending against members of his family would be too narrow.While his past offending has been against members of his family or those to whom he had a parental responsibility, we are inclined to think that merely reflected opportunity, particularly in light of the prior estrangement with the victim of the offending presently under consideration.

[17] The earlier offending was serious indeed.It occurred over a sustained period against two separate victims, both children.The offending was of the most serious kind including repeated rapes.The more recent offending must be considered in its totality.It was against a young person only 17 years old, continued over a substantial period, and was equally abusive of trust of a natural child seeking to establish a relationship with a parent not previously known.It occurred in the confines of a prison when the appellant was serving a lengthy sentence for sexual offending.

[18] It is difficult to accept the argument that a finite sentence would be appropriate for the appellant when it is apparent that the lengthy finite sentence he was serving at the time of the present offending neither protected the victim nor operated as an effective deterrent.Like the Judge, we do not see how those sentencing objectives can be met other than by the sentence of preventive detention.

[19] The matter might be otherwise if the appellant acknowledged the offending and was reported as showing insight into it and some motivation to seek help in rehabilitation.In that event there would be a basis for psychiatric assessment and prediction which might have persuaded us that, with appropriate treatment, the risk of offending in the future, with consequent harm to others, would be sufficiently reduced to warrant a finite sentence.

[20] The recent indication of acceptance of at least some offending against one of the earlier victims may indicate that the appellant is coming to terms with his offending.It may be that has been assisted by release from some of the stresses surrounding his complaints against his own abuser whose recent trial resulted in conviction.Putting that behind him may provide the appellant with some impetus for a change of attitude and recognition of need for help.He has received some counselling in respect of his own abuse and has responded well to anti-violence programmes so there is cause for some optimism that he might respond to assistance if he is prepared to accept it in respect of his sexual offending.

[21] While we have not been convinced on the information presently before us that we should interfere with the assessment made by the Judge, we do take the view that if the circumstances of the appellant should change in the direction just indicated there might be a case for invoking s97(5) of the Criminal Justice Act or any corresponding provision enacted to replace it.We say that because we are conscious of the overall length of time the appellant will be ineligible for consideration for parole with the present sentence on top of the finite sentence he is currently serving.

[22] In the meantime our concern for the safety of those the appellant may come close to leaves us with the view that at the present time the sentence of preventive detention is appropriate.

[23] Accordingly, the appeal against sentence also is dismissed.

Solicitors

Thomas Dewar Sziranyi Druce, Lower Hutt, for Appellant

Crown Law Office, Wellington.