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THE QUEEN v NIGEL ROBERT GATELY [2002] NZCA 20 (25 February 2002)

[1] The appellant pleaded guilty to two charges of assault with intent to commit sexual violation and one charge of abduction for the purpose of having sexual intercourse.He was sentenced in the High Court at Dunedin to preventive detention in respect of the two charges of assault with intent to commit sexual violation and to a concurrent sentence of three years imprisonment on the charge of abduction.He now appeals the preventive detention sentence.

[2] The charges to which the appellant pleaded guilty relate to two separate incidents.The first occurred in Dunedin at about 4.15 am on Sunday 18 June 2000.The appellant had been at a work function and was intoxicated.He was walking along the street when he saw the victim.She was a complete stranger, a young woman on her way home.The appellant approached her and then pushed and punched her to the ground.Whilst hitting her he said that he was going to kill her and have sexual intercourse with her.The appellant continued to assault the victim and managed to rip off some of her clothing.She fought back, and after a struggle with him managed to escape and run to safety.The victim suffered from a sore chest and bruising about her body, but more importantly she experienced severe emotional trauma, as might well be expected.

[3] The appellant almost immediately fled to Wellington where he lived and worked under an assumed name.It was in Wellington at about 12.30 am on Monday 5 February 2001 that the second incident occurred.The appellant, after having consumed a considerable amount of cannabis, was driving his car and stopped to pick up a young female hitchhiker, the victim in this offence.After travelling some distance she asked to be let out of the car but the appellant refused to stop.He then drove and parked in an isolated spot and reached out for the victim with the intent to have sexual intercourse with her.She resisted and the appellant told her that he was going to rape her and then punched her severely in the mouth.The victim started reciting prayers and this seemed to cause the appellant to desist and drive off.When he again refused to let her out of the car, she pulled on the car's handbrake and leapt from the moving vehicle.She was then helped by a passing motorist.She suffered swelling to her mouth area from the punch that she received and had large gravel grazes about her body from her fall to the roadside.She too suffered severe emotional trauma from these events.

[4] The appellant was apprehended by the Police approximately one hour later. He denied saying that he was going to rape the complainant, but admitted he had pulled over with the intention of having sexual intercourse with her.He was asked about the incident in Dunedin but only said that he would not be pleading guilty to that.Ultimately, however, he pleaded guilty to all three offences.

[5] The basis of the appeal is that a finite sentence with directions to the parole board would meet sentencing objectives in this case and that preventive detention was not necessary, indeed was manifestly excessive.The submissions cover three grounds.First, counsel submits that the sentencing Judge failed to assess the risk of re-offending at an appreciably distant future time, that is at the time the appellant would be released from prison, as is required by s75(3A) of the Criminal Justice Act 1985.This contention is connected to the appellant's submission that certain courses of action (ie. treatment and a formal final warning) that are usually taken before preventive detention is imposed were not taken in the appellant's case.Finally, it is submitted by the appellant that his offending, although gross, is not on the scale that usually attracts the indefinite sentence of preventive detention.

[6] The appellant does not dispute that he qualifies for preventive detention under s75(1)(b) of the Criminal Justice Act 1985, having previously been convicted of a specified offence and having now been convicted of two more specified offences.In December of 1994 the appellant was sentenced to eight years imprisonment for sexual violation by rape.He was released from that sentence on 15 March 2000 and committed the first of the present offences on 18 June 2000, that is only three months later.

[7] Section 75(2) of the Criminal Justice Act 1985 permits the Court to impose a sentence of preventive detention if it is satisfied that it is expedient for the protection of the public that an offender should be detained in custody for a substantial period.The criteria in s75(3A) are mandatory in cases under s75(1)(a) but will almost always be matters which should be considered in all cases involving preventive detention.The Court is directed in 75(1)(a) cases that it must obtain a psychiatric report and must not impose a sentence of preventive detention unless satisfied there is a substantial risk that the offender will relevantly re-offend upon release.In this case the appellant submits that the sentencing judge did not address the risk of re-offending at the prospective date of release and in any event the risk was not, when properly viewed, a substantial one.

[8] Although at the time of sentencing the appellant accepted he was at risk of re-offending, it was submitted on his behalf that he has the ability to alter his behaviour so that the risk of re-offending upon release is low.This submission was based on his plea of guilty, thereby accepting responsibility for his behaviour and the fact that he claimed now to recognise that his problems stem from alcohol and drug abuse and he wants help to rehabilitate himself.

[9] The sentencing Judge considered this submission and made the following remark:

[Counsel] says you now realise your problems, and are prepared to confront them; i.e. the abuse of alcohol and the abuse of drugs.That flies in the face of the fact that having decamped Dunedin your second offence occurred after partaking of drugs.That does not indicate that having offended in the way you did in Dunedin any realisation whatsoever impinged upon your mind as to the consequences, or causes, of your actions.

[10] We agree with the Crown that the Judge was entitled to conclude that there was no objective evidence supporting the view that the appellant now realised the consequences and causes of his action.If anything the psychiatric material suggested the reverse.We also accept the Crown's submission that the Judge did assess the risk of re-offending at an appreciably distant time.The Judge was clearly of the view that following release from any finite sentence the appellant was at high risk of repeating the cycle demonstrated in the 1994 sentence and release in 2000.

[11] The appellant's related submission is that he received neither a warning nor an opportunity to undertake a rehabilitative programme.The appellant argues that a distinction needs to made between the inevitability of re-offending after treatment as against the inevitability of re-offending in the absence of treatment.The fact that he has not been subject to any treatment programme, combined with the above factors (his accepted responsibility for the offending, recognition of his problem and the sources of it) are said to point to the conclusion that the risk of re-offending is low.

[12] The sentencing Judge also considered this issue.He looked at the contents of the psychiatric report and the probation report, both of which indicated that there was a high likelihood of re-offending.This was demonstrated by several factors, particularly the fact that the first offence occurred just three months after the appellant's release from prison.Further, the Judge stated that:

There is absolutely nothing in the material before this Court to indicate that you have insight into your offending, or that you are prepared to address it, and until there is some basis to believe that you understand and reveal the reasons for your offending, there is little chance whatsoever of an available rehabilitative programme assisting you.

[13] There is nothing before us that indicates that this situation has changed. The professional reports state that the appellant is at a high risk of re-offending.It has already been seen that once released from prison, he offended within a very short time frame.Furthermore, this Court has stated that preventive detention is not a sentence of last resort (R v Leitch [1998] 1 NZLR 420).The fact that the appellant was not warned or given any opportunity, particularly while serving his previous sentence, to undertake a rehabilitation programme does not mean that a sentence of preventive detention should not be imposed, if otherwise appropriate, as it is in this case. Indeed, on the warning issue it seems clear that the appellant was well aware he was at risk of a sentence of preventive detention if he repeated his earlier offending.This awareness did not inhibit him on either of the present occasions.We note counsel's submission that the appellant did not appreciate the substance of the warning, but do not regard that as significantly affecting his risk of re-offending.

[14] The first psychiatric report (dated 14 August 2001) stated that the risk of the appellant re-offending might be reduced by ensuring that the appellant participated in some counselling directed at drug and alcohol abuse and sexual offending and had support in the community.However, the second report (dated 1 October) noted that none of the relevant risk factors had changed since the appellant's release from prison in March 2000.The psychiatrist concluded that the appellant remained at high risk of re-offending sexually.That is, in any event, a strong inference from his past conduct and there is nothing in either of the psychiatric reports or the pre-sentence report to dispel that inference.

[15] In the course of her oral submissions, counsel emphasised that the appellant had sought help at the conclusion of his earlier sentence.Contrary to the tenor of the two pre-sentence reports, it was suggested that the appellant now had insight into his problems and motivation to address them. Nothing concrete was put before us to demonstrate that any particular programme or programmes were likely to reduce significantly the high risk the appellant currently poses.The position is different from that in Leitch in this respect.While alcohol and drug abuse seem to be the triggers for the appellant's sexual offending against women, the psychiatrist did not suggest any underlying cause that might be amenable to treatment.

[16] We are unable to view with any optimism the prospect that treatment, counselling or other intervention will materially lessen the risk which the appellant poses, and will pose on release, to the safety of women in society. We have borne in mind counsel's plea that the appellant be given one chance at getting appropriate assistance.But in view of the need for public protection which is uppermost in this case, that chance will have to be taken within the constraints of preventive detention.The Court has an overall responsibility to consider not only the interests of the appellant but also those of society as a whole.After an appraisal of all aspects of the case we find that the balance on this aspect of the case comes down clearly in favour of society.

[17] Finally, the appellant submits that despite the gross nature of the offending, it is not on the scale that usually attracts an indefinite sentence. The victims were not children, there was no planning involved and there was no breach of trust or invasion of a home.This, it was suggested, should be compared to R v C (CA491/99, 15 March 2000), R v White ([1998] 1 NZLR 264) and Leitch where such factors were present, thus making the offenders an extremely high risk to the public.

[18] The Judge, however, concluded that the appellant was a considerable risk to the young women of the community.He was influenced by the fact that the appellant re-offended very soon after release from prison.Furthermore, although the victims were not children, they were young women who were gravely affected by this serious offending.The Judge noted that the appellant does not suffer from any psychiatric illness or personality disorder, which might have explained why he commits these offences.This gave the Judge reason for concern, as it amounted to a finding that when the appellant indulged heavily in alcohol or cannabis, he felt that he could fulfil his sexual desires with any young woman.Therefore, it was not appropriate to deal with the case by way of a finite sentence.Rather, it was expedient for the protection of the public that the appellant be sentenced to preventive detention.

[19] For the reasons we have given we are not persuaded that the need to protect the public which is the purpose of preventive detention can be met in this case by way of a finite sentence.We can see no basis for differing from the sentencing Judge's careful assessment of the relevant features of the case. Indeed we agree with that assessment.

[20] The appeal is therefore dismissed.

Solicitors

Crown Law Office, Wellington