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Liddington v R CA279/02 [2003] NZCA 345 (26 May 2003)

Last Updated: 9 October 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBTED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA279/02

DONALD RAYMOND LIDDINGTON

v

THE QUEEN

Hearing: 20 May 2003

Coram:  Keith J
Laurenson J
Doogue J

Appearances:  G J King & C J Milnes for Appellant

G de Graaff for Respondent

Judgment : 26 May 2003

Introduction

[1] This is an appeal against a sentence of preventive detention imposed following conviction on 10 July 1998 for the rape of the granddaughter of the appellant's female partner.

[2] The crime was committed between November 1993 and October 1995. The victim was then aged between 3 and 5 years. The appellant was then aged between 56 and 58 years, being born on 16 May 1937.

[3] The appellant was eligible for the sentence of preventive detention as he had been sentenced on 27 October 1989 for offences committed over a 3 or 4 year period against seven schoolgirls aged between 6 and 11 years. At that time there were 7 rape offences, 11 sexual violation by unlawful sexual connection offences and 5 lesser sexual offences. Three of the girls were raped more than once. The appellant was then sentenced to an effective sentence of 7 years' imprisonment reduced to 6 years to take account of a period of remand in custody. The appellant was warned that further like offending would place him at risk for a sentence of preventive detention.

[4] Common to all of the appellant's offending is the fact that he has been in a position of trust in respect of his victims. He has had the ability to gain the trust of the families of his victims.

[5] The sentencing Judge in 1998 noted that the appellant was then 61 years of age and that the offending for which he then faced sentence must have commenced not very long after the appellant had been released in respect of the earlier offending.

[6] Indeed, the relationship leading to the offending must have been formed prior to 26 April 1994 when he was released from the standard conditions of statutory parole.
Grounds of the appeal

[7] The appellant seeks a finite term of imprisonment, submitting that the sentence of preventive detention is manifestly excessive.

[8] It is submitted for the appellant that the sentencing Judge who was the trial Judge:

• a)overstated the appellant's danger to young girls and therefore the danger to the public;
• b)placed too much emphasis on the nature of the charge without placing it in the context of the specific allegation, which it is submitted lacks aggravating circumstances often present;
• c)placed too much emphasis on the appellant's preference not to undertake group counselling; and
• d)failed to give any weight to the appellant's mitigating features and commented that there were none of any significance.

Relevant statutory provision

[9] Section 75 of the Criminal Justice Act 1984 provides:

75. Sentence of preventive detention-

(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.
Relevant authority

[10] It is clear that the sentencing Judge sentenced the appellant in accordance with the following principles stated by this Court:

R v K (1990) 6 CRNZ 210, 212:

As many of the decisions of this Court have emphasised, sentencing a person to preventive detention is a serious step and should be avoided, where possible in favour of a finite sentence. In arriving at the conclusion of what is possible the sentencing Judge is entitled to consider a finite sentence which is less severe in its effect on the offender than preventive detention but which would be of greater severity than a sentence related only to the gravity of the offence with the usual weight being given to the desirability of prevention of such offending.

R v Leitch [1998] 1 NZLR 420, 428 (1997) 15 CRNZ 321, 327-328:

Section 75 reflects the philosophy that the imposition of preventive detention accords with a fundamental purpose of sentencing, namely the protection of society.

Amongst the factors likely to be relevant to the assessments under s75(2) and s75(3A) are: the nature of the offending, its gravity and the time span; the category of victims and the impact on them; the response to previous rehabilitative efforts; the time elapsed since any relevant previous offending and the steps taken to avoid reoffending; acceptance of responsibility and remorse for the victims; predilection or proclivity for offending taking account of professional risk assessments and the prognosis for the outcome of available rehabilitative treatment.

However, s75(2) does not require the Court to impose preventive detention whenever it is satisfied that it is expedient for the protection of the public to detain the offender in custody for a substantial period. The Court “may” pass a sentence of preventive detention. At that point, when weighing the exercise of the discretion, the Court will ordinarily consider whether the protective purpose of preventive detention could reasonably be met by an available finite sentence of imprisonment.

[T]he statutory test is not to be burdened by the notion that preventive detention is a sentence of last resort... it would be wrong to fetter the discretion by building in a rebuttable presumption that a sentence other than preventive detention is to be preferred.

[11] The sentencing Judge referred specifically to Leitch and also to Solicitor-General v S, CA 15/98, 6 May 1998.
Sentencing Judge's evaluation

[12] The sentencing Judge sentenced the appellant upon the basis that on one occasion at least in the period of some 18 months when the appellant's female partner's granddaughter stayed with her grandmother, the appellant offended against her. The sentencing Judge said that the appellant was looking after the child when he removed her knickers and sexually violated her by inserted his penis between her genitalia. The Judge recorded that the offending did not come to light until September 1997 as a result of disclosure by the child at her school during a lesson about sexual abuse. The child has suffered severe emotional consequences as a result of the offending and has become quite unmanageable.

[13] The Judge referred to the appellant's background already touched upon. She noted that the earlier offending was over a period of 3 or 4 years and was all in cases where the appellant had falsely gained the trust of the complainant. She noted that the sentencing Judge on that occasion had observed that the appellant had refused to come to terms with his offending and that accordingly both then and at the time of the sentencing now under appeal, had refused to accept responsibility for what he had done. As a further consequence, rehabilitation could not occur.

[14] From the reports before her the sentencing Judge took the view that the appellant may well re-offend so long as he refused to accept rehabilitative treatment acknowledging responsibility for what he had done. He thus remained a danger to society. The Judge went on to look for mitigating factors but said she had found none. She took the view that despite the good things said about the appellant the problem was that he was a paedophile who was not prepared to recognise his problem.

[15] The sentencing Judge went on to evaluate whether the appellant should have a finite sentence imposed upon him or the sentence of preventive detention under appeal. In concluding that the sentence should be one of preventive detention the Judge relied upon the psychiatric evidence which described the appellant's re-offending as “an adverse prognostic factor”, his refusal to express remorse or accept help, the repetitive nature of his offending, its predatory pattern, its gravity and the warning given by the earlier sentencing Judge regarding preventive detention.

[16] The sentencing Judge then noted that the real question was whether a finite sentence of imprisonment, which she properly regarded as preferable, would provide adequate public protection. She referred to Leitch and S. She noted that any finite sentence would see the appellant eligible for release well within 10 years regardless of whether the appellant chose to heed the warnings given to him to rehabilitate himself or not. On the other hand a sentence of preventive detention would ensure that he would not be released until the risk of possible re-offending had passed. The Judge noted that the earlier finite term of 6 years' imprisonment (effectively 7 years) had had no apparent effect on the appellant in terms of his re-offending. She noted that in S this Court had regard to the fact that an earlier lengthy term of imprisonment had failed to modify an offender's behaviour. She saw some similarity between that case and the present. She concluded that in the appellant's case a finite sentence would not suffice adequately to protect children within the community and that it was therefore expedient for the public safety that she sentence the appellant to preventive detention.
The appeal

[17] It is submitted for the appellant that having regard to the principles relevant to the sentence of preventive detention that the appellant's offending does not have many of the features present in other cases where the discretion was exercised. The sentencing Judge took the view that if a finite sentence had been imposed a sentence of 10 years' imprisonment would have been appropriate. The appellant now accepts such a finite sentence could not be challenged and urges a finite sentence upon us.

First ground of appeal – overstating the appellant's danger to the public

[18] It is submitted that the appellant's present offending was opportunistic as opposed to predatory and arose out of him being a regular visitor to the house where the child was. On this basis it is submitted that the appellant is not a danger to young girls generally.

[19] We see no substance in this submission. The actions of a predator inevitably are opportunistic. There are three features of the appellant's offending not particularly emphasised by the sentencing Judge which themselves speak against this submission. First it is to be noted that the appellant has obtained the trust of numerous families containing vulnerable victims. Secondly, it is to be noted that the appellant's victim on this occasion was of a younger age than those involved in the earlier offending. That indicates this appellant is a risk to defenceless young females of any age. Thirdly, as already noted, the offending occurred soon after the appellant's release from conditions of statutory parole following his earlier sentences. These features combined with the appellant's history and his refusal to address his condition indicate clearly that the appellant is a danger to young girls within the community.

Second ground of appeal – overstating seriousness of offence

[20] The appellant next submits that the offending was not of the worst type. It is submitted that there was evidence of a single incident only and that the degree of penetration was minimal given there was no physical pain to the victim.

[21] We accept there was but one offence. However, it has to be noted that the complainant was very young, has abnormal hymenal scarring, and has been severely affected emotionally by the offending which had occurred. Given these factors, and the abuse of trust, this was serious offending: compare R v Hawkins CA51/02, 22 May 2002.

Third ground of appeal – over emphasizing appellant's approach to group counselling

[22] It is submitted for the appellant that the sentencing Judge placed too much emphasis on the appellant's preference not to undertake group counselling and regarded that as an aggravating feature to the sentence.

[23] We did not read the sentencing Judge's remarks in that way. Rather, the refusal of the appellant to recognise his offending and to seek assistance in respect of it means that he continues to be a risk to the community in a way which would not necessarily follow if he accepted responsibility for his paedophilia and was prepared to address his problem. The appellant's approach to his offending made it clear that a finite sentence left the community at risk from him in a way that may not have been the case if his attitude was different.

[24] It was urged upon us that the appellant had, following his earlier offending and imprisonment, accepted his responsibility and taken some steps to rehabilitate himself. However, the speed with which he re-offended upon his release speaks against any reliance on his voluntarily rehabilitating himself after a finite sentence.

Fourth ground of appeal – failure to consider mitigating circumstances

[25] The appellant submits that the sentencing Judge failed to give weight to mitigating features. In particular it is said that the appellant's first sexual offending is of relatively recent origin and that he previously held down employment.

[26] It is, however, a substantial period since the appellant was in useful employment. The appellant's serious offending may not have commenced until the mid-1980s. However, he was re-offending approximately 10 years later after some 5 years in prison.

[27] It is the appellant's risk of re-offending which is at issue and not his past risk nor his past occupational skills. The materials before us support the sentencing Judge's evaluation and do not undermine it.
Conclusion

[28] In the result the appellant has put nothing before us to show the sentencing Judge exercised her discretion contrary to principle or that her decision was clearly wrong. To the contrary, we are left with the clear view her decision was the only one reasonably open to her. Unless the appellant is prepared to accept assistance for his paedophilia he remains a serious danger to the community.
Decision

[29] The appeal must be dismissed.

Solicitors:

GJ King, Barrister, Lower Hutt for Appellant

Crown Law Office for Respondent