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THE QUEEN v WILLIAM ATKINSON [2000] NZCA 66 (25 May 2000)

THE QUEEN

v

WILLIAM ATKINSON

1. Following trial on a charge of assault with intent to commit sexual violation a sentence of preventive detention was imposed on 9 December 1999.The appellant appeals that sentence.

Background

2. The complainant was a 19-year old Swedish tourist who had been holidaying in New Zealand and was staying in a camping ground near Rotorua at the date of the offence, 21 February 1999.The appellant befriended her and under the pretext of showing her the sights of Rotorua attempted to assault her sexually.When she evaded him, he threw her to the ground.She finally escaped by running to the end of a bush track, jumping 4 to 5 metres off a cliff and into Lake Okareka and swimming 300-500 metres to the shore where an adult finding her distraught, assisted her and called the police.

Factors considered in Sentencing

3. It was acknowledged that the appellant qualified for a sentence of preventive detention pursuant to s. 75(2) of the Criminal Justice Act 1985.The appellant had been convicted in April 1991 on two charges of unlawful sexual connection and a third of rape involving three schoolgirls aged 14 and 16.The offences were separate and at least two involved threats with a knife.The appellant received a total sentence of 8 years and 11 months imprisonment and was released on parole in March 1997.There was therefore a period of two years between release from imprisonment and the commission of the present offence which occurred whilst the appellant was still on parole.
4. The Judge had before him a pre-sentence report, a victim impact report, the 1991 sentencing remarks and a psychiatric report from a Consultant Psychiatrist, Dr Rees Tapsell.
5. Concluding that the offending was a serious and sustained assault, the Judge referred also to the previous convictions for sexual offences, the relative youth of the complainant, the fact that the offence occurred whilst the appellant was on parole and, in particular, considered those factors which might assist in making an assessment of future offending.In this last category the matters referred to in the pre-sentence report and Dr Tapsell’s report were reviewed in some detail.
6. In his report the probation officer had noted the appellant’s traumatic early childhood and the instability of his life generally until, in his late teens, he began abusing drugs and alcohol, lost jobs and began to appear regularly before the Courts.He was considered to have a problem with substance abuse and exhibited a general anger towards women.His family felt that he needed professional assistance to deal with his problem.This assessment was reinforced by the probation officer who noted that "His deep rooted problems of an emotional nature could be addressed in a subsequent term of parole".Although the appellant had breached his parole conditions by living and working outside of Taupo, the probation officer considered his sentence compliance otherwise had been exemplary and that he had received a "positive final assessment report from his supervising psychologist".He noted too, the appellant’s expression of remorse but considered him mature enough to have avoided committing the present offence.
7. Dr Tapsell’s psychiatric report was detailed and thorough.In it he warned of the difficulties of assessing the degree of risk presented by an individual of committing some act in the future, commenting that it was a "very difficult and fraught exercise", one in relation to which the accuracy reduces over time.Such predictions, in his opinion, have "most validity when oriented toward making short term assessments of risk".For these reasons Dr Tapsell, relying on his professional understanding of the sorts of factors which in general enable an assessment of risk of re-offending to be made, discussed demographic factors, the appellant’s general history of criminality, his sexual criminal history and his clinical presentation, treatment and developmental history.In all these categories an increased risk of sexual recidivism was noted balanced by factors such as the appellant’s average intelligence and level of education.
8. In summary Dr Tapsell considered that there were three variables which were, in the appellant’s case, the most significant in conferring a higher risk of sexual offender recidivism:

1. His inability to show empathy or understanding for his victims.
2. A developmental history which puts him at higher than average risk.
3. His past offending and in particular the serious and violent sexual offences for which he was sentenced in 1991.

9. There were nonetheless, variables which gave rise to optimism:

1. The appellant’s average intelligence and stated willingness to receive further treatment.
2. That the appellant to some degree had established a better relationship with family members, in particular his mother.

The report noted also that the risk of re-offending generally decreases with advancing age and emphasised the need for a variety of treatments and therapy for alcohol and substance abuse and other issues surrounding his sexual offending.

10. Counsel for the Crown submits that this careful assessment of the positive and negative features affecting the likelihood of re-offending can be classified as follows: that the appellant is at real risk of offending again in the future.This we accept is a fair summary of his likelihood of recidivism.

The sentence imposed

11. In the sentencing remarks, in the submission of counsel for the appellant, the only omission was the failure overtly to address the possibility that a finite sentence might have sufficed.Counsel acknowledged however, that all factors relevant to the imposition of such a sentence were traversed and that a sentence of preventive detention is not one of last resort: R v Leitch [1998] 1 NZLR 420.Consequently, the approach sometimes adopted in other areas of criminal offending where progressively more severe sentences are imposed is not necessarily apposite in relation to sentences of preventive detention.Nonetheless his submissions come close to making that very point.A sentence of 8-9 years imprisonment would have been unimpeachable notwithstanding the fact that the maximum sentence for an offence against s. 129 of the Crimes Act 1961 is 10 years imprisonment.As this Court has emphasised on a number of occasions, the sentence of preventive detention will be imposed when the risk of re-offending requires the Court to ensure the protection of the public.Where, as here, there is a real risk of re-offending at the conclusion of a finite sentence of imprisonment, preventive detention must be the appropriate sentence.
12. The appellant had received some form of psychological therapy or treatment whilst in prison following sentence in 1991 and although receiving a positive report had nonetheless re-offended two years later.There is therefore a real risk that without effective intervention he will re-offend on release from a finite sentence.There are other factors which lead us to conclude that preventive detention was the appropriate sentence.First, were it not for the complainant’s courage in making her escape from the appellant there was a strong possibility that a more serious offence would have occurred.Secondly, he has not fully acknowledged the seriousness of his offending.He did not plead guilty and has tended to minimise his actions and their effect on the victim.These are risk factors which cannot be underestimated.

Conclusion

13. We therefore conclude that the sentence imposed was in all the circumstances open to the trial Judge and see no reason for disturbing it.The appeal is dismissed.

Chadwick Bidois, DX JP30021, Rotorua