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R v Wilson [2002] NZCA 409; (2002) 19 CRNZ 555 (26 August 2002)

Last Updated: 4 December 2019

THE QUEEN

V

CLINTON JACOB WILSON

Nature of the appeal

[1] On his trial in the High Court before a Judge and jury the appellant was found guilty of one count each of sexual violation by rape, indecent assault, injuring with intent to injure and assault with a weapon. The victim in respect of the sexual counts was a 13 year old girl. The victim of the other violence was the girl’s father whom the appellant seriously beat up with a rake. The trial Judge sentenced the appellant to preventive detention for the rape and to concurrent sentences of three years on each of the other counts. The Judge explained in his sentencing notes that if a finite rather than indefinite sentence had been imposed for the rape he would have made the sentence for indecent assault concurrent with that and the sentences in respect of the subsequent violence concurrent with each other but cumulative on the sentence for rape.
[2] The appellant appeals against conviction on the ground that on the crucial issue of identity the evidence and the trial Judge’s directions were inadequate and unsatisfactory. He also appeals against sentence on the grounds that preventive detention is inappropriate or a manifestly excessive sentence and that a finite sentence, albeit one which might have elements of accumulation in terms of the trial Judge’s indication, should have been imposed.
[3] The appellant was eligible to be sentenced to preventive detention by virtue of s75(1)(a) of the Criminal Justice Act 1985, because of the conviction for rape under s128(1) of the Crimes Act 1961. He was also eligible for preventive detention by virtue of s75(1)(b) of the Criminal Justice Act because he had previously been convicted on at least one occasion since attaining the age of 17 years of a “specified offence”. In 1997, when aged 22, he had been convicted of injuring with intent to cause grievous bodily harm, contrary to s189(1) of the Crimes Act, aggravated injury and aggravated wounding, contrary to s191 of the Crimes Act. These are all specified offences. We note at this point that the offences in relation to the girl’s father were not themselves “specified offences”.

Nature of the particular offences

[4] On 27 June 2001 the appellant was released on parole in respect of a total sentence of seven and a half years imprisonment imposed by the High Court in August 1997 for a raft of offences including the specified offences which we have mentioned. He went to live in a small North Island town in accordance with his parole conditions. On 8 July 2001, that is less than two weeks after being released on parole, a man entered the house of the victim’s grandparents and raped the victim, who was a visitor, when she was asleep. When the girl woke and resisted the offender committed manual indecencies and tried to suborn her into further intercourse. He eventually desisted but threatened that he would use a shotgun if she told anyone. He left the house and the girl complained. The sexual offences were committed in circumstances of home invasion within the meaning of that term under the now repealed provisions of s17A of the Crimes Act, but the offending seems to have been opportunistic rather than premeditated.
[5] The evidence of the girl and her brother, who woke and saw part of the sexual encounter, identified the offender as “Rat”, a person they had seen previously. Although the incident occurred at night, in the lounge, the television set was switched on and, according to these two young people, it provided sufficient light for them to recognise the offender. There was adequate additional evidence to show that “Rat” was the nickname of the appellant.
[6] The girl’s father visited the house two days later and learned what had happened to his daughter. There was evidence of consequential anger towards the appellant. The father went down the road to confront the assailant but the girl’s mother persuaded him to return to the grandparent’s home. The appellant obviously learnt that he was being sought. He and three associates went up the road and in what the Judge described as a pre-emptive attack he set upon the father, eventually resorting to the use of a rake with which he struck the father so forcibly the handle broke. There is no evidence of the nature and extent of the father’s injuries, nor any victim impact statement in respect of him.

Appeal against conviction

[7] We have carefully considered the specific references in the trial transcripts which counsel for the appellant provided in support of this aspect of the appeal, and have studied the directions given to the jury by the trial Judge. The latter were in terms consistent with the requirements of s344D of the Crimes Act 1961, and were entirely adequate. As to the actual evidence in relation to identity, its cogency was crucially dependent on the reliability of the girl and her brother. They were unshaken in cross-examination. The assessment of their credit was entirely a matter for the jury. We can find no basis for concern about the safety of the verdicts and the appeal against conviction cannot succeed. We now turn to matters relevant to the sentence appeal.

Appellant’s history

[8] The appellant was bereft of both parents when young and began getting into trouble at an early age. His father died when he was about 7 or 8 years old and his mother when he was a teenager. Information before the Court discloses a dysfunctional family background with the mother’s family having gang connections and being associated with violence, criminal activity and illicit substance use. In 1992, at the age of 16, the appellant was sentenced to Corrective Training for offences which included burglary, attempted unlawful taking of a motor vehicle, wilful damage, escaping from Police custody and possession of a knife in a public place. Less than a year later he committed an aggravated robbery using a firearm and received a sentence of imprisonment for three years nine months. On his release he committed a number of driving offences, including driving whist disqualified and driving with excess breath alcohol. Whilst on bail for the driving offences he and a younger accomplice went on the spree of violence which led to his sentence of seven and a half years imprisonment. Initially he went into a burger bar and for no reason attacked a 15 year old youth, punching him in the nose and kicking him in the face. He then broke into a hotel and when discovered by the manager drinking from stolen bottles of spirits he struck the manager in the face with a full bottle. Decamping from the hotel he and his accomplice violently robbed another citizen who was walking on the street. The publican’s wife came out to see what was happening and the appellant attacked her, punching and kicking. He kicked her in the face and genitalia, causing injury to the vagina so as to require surgery. A short time later the two miscreants became involved in what the High Court Judge described in 1997 as “a totally mindless attack on a group of young people sitting in a car, which eventually included a stabbing of an innocent man”. These complainants were robbed at knife point and one of them was stabbed in the chest by the appellant. Shortly after that incident the appellant committed a burglary at a sports store.
[9] In July 2000 a Psychological Service report to the Parole Board recommended that subject to approval for acceptance the appellant be paroled to undertake the Montgomery House Violence Prevention Programme starting in October of that year. In September 2000 he was assessed as suitable for attendance at Montgomery House and began their Violence Protection Programme early in October. The programme continued to 15 December 2000 with the appellant completing all scheduled VPP modules, including Violence Prevention (65 hours), Relationships (40 hours), Culture (40 hours), Health (20 hours), Physical Fitness (regular gym sessions), Outdoor Skills Camps (4 weekend camps) and Skills Practice (20 hours).
[10] A psychiatric report was prepared for the purpose of the sentence under appeal. Constrained by reticence on the part of the appellant, the psychiatrist reported fairly succinctly. He concluded with the following opinion and recommendations:

Mr Wilson is a 26 year old Maori male convicted on a number of charges of violent behaviour, including sexual violation by rape. He does not have any symptoms of a psychiatric illness and has never received psychiatric treatment. It is my opinion that he is not mentally disordered as defined by Section 2 of the Mental Health Act 1992.

I note that Mr Wilson has participated in a number of treatment programmes whilst serving prison sentences. Despite this, he re-offended shortly after release from prison and was unable to make the required lifestyle changes. Should Mr Wilson return to the same environment and persist with alcohol and illicit substance abuse, then he acknowledges that there is a high risk of him offending in a violent manner. Should he, however, be able to make lifestyle changes he has a number of personal qualities which may reduce his risk.

Without evidence of a psychiatric illness, prediction of future behaviour is problematic. He has no previous convictions for sexual offending and denies any psychosexual abnormalities. It would appear that the sexual offence occurred in a context of alcohol intoxication. He has never received treatment for sexual offenders and his response to such treatment is, therefore, difficult to ascertain. He has, however, so far, been unable to change his lifestyle and behaviour despite having completed a number of courses for violent offending during previous periods of imprisonment.

Reasons for sentence

[11] The sentencing Judge briefly outlined the personal history, including criminal offending of the appellant, and described the nature of the offences in issue. He referred to this Court’s statement of principles in R v Leitch [1998] 1 NZLR 420 and noted that the previous rehabilitative efforts and courses taken by the appellant had not prevented him from drinking to excess or from resorting to violence. There seemed little acceptance of responsibility or remorse. The Judge referred to or recited the extracts from the psychiatric report mentioned above. Given that the rape involved a home invasion the starting point was 11 years but the age of the victim and the threat were seen as aggravating features which would justify an increase beyond the starting point. Because the offences two days after the rape would, in the Judge’s view, justify a sentence in the order of three years imprisonment and accumulation of such a sentence the result was a possible finite sentence in the order of 14 or 15 years. The question was whether, in view of the alternative possible finite sentence, having regard to public safety a sentence of preventive detention was appropriate. In the Judge’s view a common feature of all the offending was the total lack of respect that it showed for other people and the appellant’s determination to gratify his own desires.
[12] The Judge concluded with the following remark:

Whilst I accept that in some respects this sexual offending is certainly not in the category of the worst that this Court sees, nonetheless, the worrying element of a move into a different kind of offending to that which previously existed, seems to me to indicate that a wider section of the community requires protection, perhaps than was previously the case.

[13] The Judge concluded that preventive detention was the appropriate sentence and imposed it accordingly.
[14] It was subsequently drawn to the Judge’s attention that he had not imposed sentences specifically in respect of the offences other than rape and on a subsequent occasion he imposed such sentences in the terms mentioned earlier in this judgment.

Arguments on behalf of appellant

[15] After carefully outlining the circumstances of the offending and sentencing process as well as the appellant’s previous offending history and steps for rehabilitation, counsel submitted that the following conclusions could be drawn from the information before the Court.

• (1) The appellant had significant predilection for violence triggered by environment, in particular alcohol and wrong associates.
• (2) He needed acceptance of and considerable involvement in remedial outside assistance.
• (3) A home location in the particular North Island town was not beneficial.
• (4) Without commitment to rehabilitation the risk of reoffending was high but there was some cause for believing the risk could be reduced.

[16] Counsel submitted however that although the psychiatric report indicated that a return to the particular environment with continued abuse of alcohol and drugs would, as the appellant acknowledged, create a high risk of violent offending there was no prediction of risk of future sexual offending because there was no psychiatric illness and no previous offending of such kind.
[17] Counsel submitted that although the sexual violation was serious, involving as it did home invasion and a young teenage victim, nevertheless the violation stopped at the complainant’s request after she awoke, did not involve additional violence and on its own would not have attracted a sentence of preventive detention. Nor had the previous violent offending called for such a sentence. The particular issue in this case was whether or not the two different kinds of offending, in combination, made a sentence of preventive detention expedient for the protection of the public.
[18] Counsel submitted that the appellant had demonstrated a willingness to participate in courses and programmes within and outside prison, that the sexual offending was an isolated event of its type and that the Judge had wrongly concluded that the sexual violation evinced a greater future risk to the public from which it required special protection. There was no evidence of there being a particular risk of that kind on release and any protective purpose would be met with a finite sentence, inevitably lengthy.
[19] In counsel’s submission the appropriate base sentence on the count of sexual violation was 11 years as indicated in R v Palmer [2000] 1 NZLR 546. He submitted that it would be appropriate for all the sentences to be served concurrently leaving a finite sentence of 11 years imprisonment.

Arguments for the Crown

[20] The Crown took the view that although the appellant was eligible for preventive detention under s75(1)(a) and 75(1)(b) he was dealt with by the Judge in terms of the latter provision on the basis of his previous convictions for specified offences. We accept that submission.
[21] Counsel argued that the Judge was entitled to be satisfied that it was expedient for the protection of the public that a sentence of preventive detention be imposed. Factors relevant to the assessment of future risk included the offending within two weeks of release on parole from a seven and a half year sentence for serious violent offending; the completion of specific training and courses in relation to the management of violence and other life skills giving rise to a prognosis of reduced risk of offending but acknowledging that the management of violent behaviour was an ongoing process. Notwithstanding the progress the appellant had made by using the treatment opportunities, a psychological report before the present offending expressed the opinion that the potential to reoffend once released remained high. The injuring with intent to injure and assault with a weapon charges were similar to the violent offences committed by the appellant in 1997 in that they too were acts of unprovoked violence precipitated by heavy drinking.
[22] Given these various factors the Judge was entitled, in counsel’s submission, to form the view that despite the imprisonment and programmes undertaken by the appellant before parole the appellant had not come to grips with the primary causes of his offending which were his alcohol problem and propensity to use violence. The matter was one of public safety and the Judge was entitled to conclude that public safety would be best safeguarded by a sentence of preventive detention rather than a finite sentence of about 14 or 15 years.

Discussion

[23] It is an unusual application of s75(1)(b) Criminal Justice Act for preventive detention to be imposed when the successive specified offences are in the one case violence and in the other case sexual violence; but it is permissible. The legislative purpose being protection of the public from very dangerous offenders, the indications of danger need not be confined to recurrent violent crimes of the same type. Where recurrent similarity is usually seen as relevant is in terms of an inference of unremitting propensity. Yet there may be a clear disposition toward violent offending generally, which may or may not involve a variety of types of violent crimes. Thus, a propensity mix of dangerous behaviours, not just violence of a particular type, may justify a protective sentencing response, although the mix may render more difficult the prognosis of risk.
[24] In the present case the Judge seems not to have perceived a danger in the repetition of violent offending generally, so much as in the extension of the scope of danger to a different category of potential victims. This is indicated in the Judge’s remarks cited in para [12] of this judgment. We have difficulty with his analysis. The sexual offending was, in the Judge’s view, “not in the category of the worst that this Court sees”, from which it is to be inferred that such offending did not itself warrant the imposition of preventive detention. On the other hand, neither of the two other offences of violence is a specified offence and accordingly preventive detention could not be triggered by them. Preventive detention appears to have been imposed on the grounds that a different section of the public was now exposed to risk but, with respect, we do not consider the underlying analysis to be convincing. The sexual offences are not indicative, by their type or circumstances, of a dangerous propensity warranting a sentence of preventive detention. We think that sentence was seen as appropriate largely on account of the classification of the crimes, that is, the 1997 offences and the recent sexual offences, as “specified offences” without a sound examination of the prognosis of risk and the aptness of a finite sentence to meet such risk.
[25] The features of the case and the appellant’s history do suggest a propensity for serious offending. But the psychiatric report recognises that should the appellant be able to make lifestyle changes he has a number of personal qualities which may reduce the risk. Given this indication, his age and the difference in the types of relevant offences we take the view that a lengthy finite sentence is adequate to meet the risk. The Judge’s alternative assessment of a finite sentence in terms of about 14 years imprisonment was apt. Accordingly we dismiss the appeal against conviction for the reasons previously given but allow the appeal against sentence by quashing the sentence of preventive detention for rape and imposing a sentence of 14 years imprisonment concurrent with all the other sentences.

Solicitors
Crown Solicitors, Auckland