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R v Shaw CA478/03 [2004] NZCA 373 (5 July 2004)

Last Updated: 25 April 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA478/03

THE QUEEN

v

GRAEME SHAW

Hearing: 16 June 2004

Coram: McGrath J Goddard J Chisholm J

Appearances: S D Cassidy for Appellant
H D M Lawry for Crown Judgment: 5 July 2004

JUDGMENT OF THE COURT DELIVERD BY GODDARD J

Introduction

[1] The appellant was found guilty following trial in the High Court on 12 counts of sexual offending, three counts of sexual violation by unlawful sexual connection, four counts of indecent assault on a female under 12 years, four counts of indecent assault on a male under 12 years and one count of indecent assault on a male aged between 12-16 years. Six child complainants were involved, three boys and three girls aged between 6 and 12 years. The offending occurred over a relatively short

R V GRAEME SHAW CA CA478/03 [5 July 2004]

period, between 1 November 2002 and 22 January 2003. At the time the appellant had 13 prior convictions for sexual offending against children of both sexes. In 1998 he had been sentenced to a term of 3½ years imprisonment for sexual offending against children and during that term of imprisonment completed the nine month Te Piriti Sexual Offenders Treatment Programme at Auckland Regional Prison. He was released on standard and very specific special conditions of parole on 17 May 2000, for final release on 14 July 2001. This current offending occurred only 16 months after that parole period expired.

[2] Reports from two forensic psychiatrists, Dr Wyness and Dr Moskowitz, were available to the sentencing Judge, Venning J, in addition to a pre-sentence report and emotional harm reports on the complainants. Both psychiatrists considered that there was a substantial risk of the appellant re-offending.

[3] The Crown sought a sentence of preventive detention. Mr Cassidy for the appellant argued that a long finite term of imprisonment was the preferable option and would provide adequate protection to society. Venning J considered, however, that the community and particularly children would not be adequately protected by a finite sentence and imposed a sentence of preventive detention on the appellant, directing him to serve a minimum period of imprisonment of six years. In so directing, Venning J observed that a finite term of 10 years would have been an appropriate term of imprisonment for the offending in the event that a finite term had been appropriate. He did not consider it necessary to increase that period in terms of s89(2)(b) of the Sentencing Act 2002 (“the Act”).

The facts

[4] The facts are not in issue and were as set out in the following passages of Venning J’s sentencing notes:

[2] The victims were all living in or near Lyncroft Street in Mangere. You visited Lyncroft Street regularly towards the end of 2002. You had an associate or a friend there, a handicapped man, Mr Ray Lewis. You visited him often. For a time you moved into and looked after his house when he was not there. You met the children as they played outside in the street. You encouraged their contact with you. You joined in their games and you gave

them money and presents. You brought the children into Mr Lewis' home where you watched t.v. and videos with them. You encouraged their friendship and even stayed overnight at one of their homes.

[3] In relation to the offending itself all three counts of sexual violation relate to incidents where you had oral sex with three separate male victims. In some instances you offered them money either before or after the act. The four counts of indecent assault against the female victims relate to incidents where you touched the two girls on or about their vagina and in one instance kissed one. The worst incident was where you rubbed your penis against the outside of the victim's genital area. At the time the two girls were nine and eight years old.

[4] The five counts of indecent assault against the male victims relate to incidents where you touched the boys on their genitals and about their anus. At the time they were aged seven, 10 and 12 years old.

The appeal

[5] Mr Cassidy referred to the principles governing the imposition of a sentence of preventive detention as codified in ss87-90 of the Act and particularly to the criteria and factors listed in s87, which the Court must take into account when determining whether a sentence of preventive detention is required. Mr Cassidy accepted that the appellant met the qualifying criteria for consideration of the sentence in terms of s87(2), but referred to the statement of this Court in R v C [2003] 1 NZLR 30 that establishment of the s87(2) criteria does not render imposition of the sentence mandatory. He reminded the Court that it retains a discretion and in the exercise of that discretion is required to take into account all of the matters set out in s87(4)(a)-(e).

[6] Mr Cassidy then submitted in relation to each of the factors in s87(4)(a)-(e) as follows:

(a) It is conceded that the appellant has a pattern of serious offending namely two “clusters” of offending in 1991 and 1995.

(b) It is conceded that sexual offending of the nature disclosed in the past and current offences present a moderate risk of harm. It is noted however that the offending is not accompanied by overt acts of violence and there is no suggestion of threats being made to the life or safety of the victims.

(c) It is submitted that on balance, information obtained from the two psychiatrists is ambivalent as to any tendency to commit serious offences in the future.
(d) The appellant has attempted to rehabilitate in the past but, it seems, has failed. In light of his limited intellectual functioning, this may be an indication that previous programmes have not been “pitched” at the right level. They have been ineffective because the appellant has not been able to fully understand what is being taught.

(e) It is noted that the appellant received sentences of periodic detention and supervision for offending in 1991 and then imprisonment for 3½ years for offending in 1995. He was released from imprisonment after serving about 2½ years of that sentence. It is submitted that the learned Judge erred in finding that determinate sentences have failed in the past.

[7] In conclusion, Mr Cassidy argued that a lengthy determinate sentence would provide adequate protection for society in the appellant’s case and nominated a finite sentence of 10-12 years as appropriate. He submitted that such an approach was also consistent with the principle that the Court must impose the least restrictive outcome in the circumstances in terms of s8(g) of the Act.

[8] In support, he emphasised two particular aspects of the appellant’s case; his somewhat limited intellectual functioning and the fact that no cognitive testing appears to have been conducted on him, and to the lack of violence used by the appellant against his victims which Dr Wyness had listed as a factor protective against re-offending.

The reports

The pre-sentence report

[9] Mr Cassidy took issue with an observation made by the probation officer in the pre-sentence report that Mr Shaw presented as “unabashed, perhaps even arrogant, and certainly not contrite, when describing his modus operandi and offending”. Mr Cassidy said this unfortunate impression was possibly the result of Mr Cassidy having advised Mr Shaw that he should be open and frank with the probation officer during interview and also the result of Mr Shaw’s intellectual capacity. However, even leaving aside this rather unfortunate impression on the probation officer, it is clear from Mr Shaw’s statements as recorded that he lacks insight into the effect of his offending on his child victims and that he has difficulty
in adhering to the risk strategies he was taught during his participation in the nine month Te Piriti Sexual Offenders Treatment Programme. Although he continued to be regularly seen by a departmental psychologist on his release on parole on 17 May 2000, he was rather pessimistically assessed at termination on 14 July 2000 “as managing his relapse prevention programme but still of a high risk to reoffend”.

[10] The probation officer’s conclusion was that Mr Shaw:

... displayed little insight with regard to his offending or how to manage his daily living so that he does not continue to offend. Thus his motivation must be assessed as minimal and together with his offending history, his potential to re-offend sexually against young people, must be judged to be high.

Report by Dr Moskowitz

[11] Dr Moskowitz commenced his report by noting that the appellant had been placed in special classes at school from third form level and that he reported having been sexually abused himself for many years by an older brother. Dr Moskowitz noted however that the appellant had been able to engage in age appropriate sexual relationships when he reached maturity and that he had a strong support network, including from family, church and other responsible adults at the time he was first arrested for offending sexually against young children. The first offences of which he was convicted occurred in 1991 and involved the appellant engaging in sexual activity with young boys in a public park. He received a sentence of two years supervision for that offending, on the basis that he was undertaking sexual offending treatment at the SAFE Programme, that he was a first offender and that he had a strong support network. However, as Dr Moskowitz further noted, despite the extensive and impressive support network available to the appellant at that time and the offence-appropriate treatment that the SAFE Programme had developed to suit his cognitive abilities, he again offended in late 1995. The victims of that second episode of offending were young girls. It was whilst serving the prison sentence imposed on him for this offending that the appellant successfully completed the Te Piriti Sexual Offenders Treatment Programme in Auckland Regional Prison.

[12] In relation to the appellant’s treatment needs, Dr Moskowitz advised as follows:

The treatment Mr Shaw will require to address his sexual offending will clearly need to be quite extensive and intensive, and will have to take account of his apparently limited intellectual functioning. (It is not apparent whether intelligence testing has ever been administered to Mr Shaw; this would be a good thing to complete in prison). However, it is clearly worrisome that he has already participated in – with little argument – the two best sexual offending treatment programmes in the Auckland area – the SAFE Network in 1992 and Te Piriti in 1999-2000 – with little effect. While, by his account, he was unable to complete the SAFE programme, he did participate for six months and felt that it benefited him. Nonetheless, he continued to sexually offend subsequently and, to this day, clearly feels that his actions have had little detrimental effects on the children. The extensive cognitive distortions evidenced by Mr Shaw – including that sex between children and adult men is ‘normal’ – is particularly worrisome, as is his contention that what he did was not wrong. It is also additionally of considerable concern that Mr Shaw’s offending occurred despite his apparent capacity to engage in age-appropriate sexual relations and despite – particularly for the earlier sets of offences – having an extensive support system. Thus, even these ‘protective’ factors did not stop Mr Shaw from offending. Taking all of the above into account, it must be said that, while treatment should of course be offered to Mr Shaw during his sentence, one must be cautious with regard to expectations as to its efficacy.

[13] Dr Moskowitz then turned to consider the list of factors identified by this Court in R v Leitch [1998] 1 NZLR 420 as relevant to consideration of a sentence of preventive detention. He considered that there had been an increase in the seriousness of the appellant’s offending in this third and current episode of sexual offending. He considered that the form of sexual offending that the appellant engaged in was in some ways even more psychologically damaging to his young victims than sexual intercourse and capable of resulting in “more profound psychological damage than forcible sexual activity”. He considered that the appellant’s response to previous rehabilitative effort had been “very poor” and found little evidence that he had taken any steps to avoid re-offending but on the contrary had sought out situations in which he could have contact with children. Dr Moskowitz also evinced a degree of scepticism about the existence of any feelings of true remorse on the appellant’s part.

[14] In terms of his predilection or proclivity for further offending and the prognosis for the outcome of any available rehabilitative treatment, Dr Moskowitz concluded by offering the following opinion:

Taking all of the above into account, and noting Mr Shaw’s poor response to prior treatment programmes, one would have to consider Mr Shaw to be at substantial risk for re-offending against young children were he to be

released to the community at this point. His pattern of offending has changed little, except perhaps to increase in severity, over the past 12 years, despite two lengthy sentences and despite a number of positive prognostic factors (i.e., engaging in treatment voluntarily, a strong support system, participating in age-appropriate sexual relationships). He continues to see little wrong with his offending behaviour, and appears poorly motivated to change his actions. While Mr Shaw may certainly respond to rehabilitative efforts during his incarceration, decreasing his potential risk for re-offending sexually, his poor response to Te Piriti when last incarcerated leads one to be cautious as to this likelihood.

Report of Dr Wyness

[15] Dr Wyness’ report contained similar observations and findings to that of Dr Moskowitz. Dr Wyness found the appellant to have only partial insight into his offending and to appear not to perceive the effects that it may have had on his child victims. He noted that the appellant’s sexual preference is now to have sexual contact with children of either sex between the ages of approximately six and 16 years and that he had cultivated a relationship with the current child victims.

[16] Dr Wyness listed the following as the negative prognostic features which indicate that the appellant is at risk of re-offending:

• - Paedophilic sexual orientation
  • - Previous similar offending and conviction
• - Extra familial victims
• - Relapse after previous completion of child sexual offenders course while in - prison
  • - Limited victim empathy and remorse about offending
  • - Limited intellectual capacity
  • - Social skills deficit
  • - Single status

[17] Dr Wyness also listed the following as factors which would protect against the appellant’s re-offending:

• - Lack of criminal versatility i.e. no offences other than sexual offending.

However this is of course not protective against further sexual offending.

- Lack of use of violence against victims
- Limited alcohol and no drug abuse.

[18] Weighing all of these factors, Dr Wyness offered the following opinion:

I believe that there are particular concerns in Mr Shaw’s case. He does not appear to accept that his offending behaviour is unacceptable. He justified it by saying that the children agreed to participate. He completed his last

sentence for similar offending only about two years ago. During this time he completed the Te Piriti Programme in prison but seems to have gained little from it. He appears to have become increasingly involved with these young children in the neighbourhood over a period of time, i.e. the offending did not occur purely opportunistically but rather as a result of a process of gaining increasing access to the children over time to the extent of sleeping in two of the boys bedroom at the home.

All of these factors would be strong risk factors for re-offending.

The emotional harm reports

[19] Each of the child victims was interviewed by a psychologist who reported that the appellant’s offending has had an extremely negative impact on the children with likely long term effects that will take considerable effort to work through. Typical long terms effects may be difficulty in expressing and controlling anger, poor self esteem and affected sexual development.

Discussion

[20] Unlike the situation in Leitch, the psychiatric reports on the appellant do not indicate a “quite favourable prognosis for the future”. The appellant in Leitch had not undertaken any structured treatment programme and the opinion of the two psychiatrists was that the substantial risk of his re-offending in similar fashion could be diminished if he successfully engaged in and completed a rehabilitation programme such as Kia Marama.

[21] The situation in the appellant’s case is however quite different with the consultant psychiatrists quite unable to express any such confidence about his future prospects of not re-offending.

[22] It is trite that the appellant meets the criteria for a sentence of preventive detention in terms of s87 of the Act. In terms of the factors listed therein, that the Court must take into account when considering whether to impose a sentence of preventive detention, all are relevant to the appellant’s situation. He has demonstrated a pattern of serious offending of similar type over more than a decade against young children of both sexes; his offending has caused undeniable harm to
those children, which a psychologist has categorised as “serious” and potentially long term; two psychiatrists have expressed the opinion that the appellant poses a high risk of re-offending in the future; their reports and that of the probation officer all indicate that past efforts by the appellant and concerned professionals to address the causes of his offending have failed, as evidenced by his re-offending and his lack of insight into the wrongness of his behaviour.

[23] In terms of all of the above criteria, but having regard also to the principle that a lengthy determinate sentence is preferable if this can provide adequate protection for society, we are satisfied that the pattern of the appellant’s past and current offending, the harm that it has caused and the indication that it may be increasing in seriousness (the use of his penis against a child’s vagina), coupled with his poor response to the two best sexual offending treatments programmes in the Auckland area has elevated it beyond a moderate risk of future harm to society and into the “significant and ongoing risk” category.

[24] In reaching this view we have not overlooked Mr Cassidy’s submission that, whilst recidivist in nature, the appellant’s offending has not involved the use of violence against his victims and this was seen as a protective factor by Dr Wyness. We are unable to accept however that the offending was not very serious in nature, involving as it has the performance of oral sex on the young male victims, the touching of the genitalia of all of the victims, and the rubbing of his penis against the vagina of one victim. Nor can we overlook the seriousness of the effects of the offending on the appellant’s victims as described by the psychologist who interviewed them.

[25] Although there are parallels, the appellant’s case is distinguishable from that of R v Bailey (CA102/03, 22 July 2003). In that case, despite the high risk of re- offending, the Court was satisfied that a longer than usual finite sentence would meet the need to protect the community. Although the appellant in Bailey had a demonstrated history of offending and had re-offended despite having undertaken the STOP Programme and the Kia Marama special treatment programme and was assessed as a high risk of re-offending, the nature of his offending was not in the
same category of seriousness as the appellant’s. In substituting a finite sentence of five years imprisonment this Court said:

The nature of the offending of this appellant cannot be characterised as trivial. But neither is it high on the scale of seriousness. His two most recent offences seem to have consisted in overtures to young men desisted from when rejected. Prior to that his offences in 1993 and 1995 involved indecent assaults on male victims over sixteen. Their seriousness is indicated by the sentences respectively of six months periodic detention and six months imprisonment. While offensive, embarrassing and even frightening to victims, the pattern of offending over this ten year period has not been violent or of an increasing seriousness. It reflects apparent sexual gratification, when disinhibited by alcohol, from low level offending from which he seems to be and was readily deterred. Offending at that level does not warrant the indeterminate sentence of preventive detention without first there having been a lengthy finite sentence as, in effect, a final warning and chance to address underlying problems.

[26] In view of the appellant’s significantly more serious offending and in view of the opinions expressed by the two forensic psychiatrists, we are unable to say that the future protection of the public can adequately be met by the imposition of any sentence other than preventive detention in the appellant’s case.

Conclusion

[27] The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington