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R v H(CA101/06) [2006] NZCA 457 (18 September 2006)

Last Updated: 2 February 2014

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA101/06

THE QUEEN

v

_H(CA101/06)

Hearing: 10 August 2006

Court: William Young P, Rodney Hansen and Ronald Young JJ Counsel: A Markham for Appellant

J H Wiles for Respondent

Judgment: 18 September 2006 at 11am

_{JUDGMENT OF THE COURT}

_{The Solicitor-General is granted leave to appeal but the appeal is dismissed.}

R V H(CA101/06) CA CA101/06 18 September 2006

REASONS

(Given by Ronald Young J)

[1] This is an application by the Solicitor-General for leave to appeal against a refusal by Allan J to impose a sentence of preventive detention on the respondent after he pleaded guilty to 13 charges of sexual offending against eight female victims committed over 15 years. In the alternative, the Solicitor-General submits the sentence imposed, of five and a half years imprisonment, was manifestly inadequate.

Background

[2] In May 2005 the respondent presented himself to the police and confessed to extensive sexual offending against eight female victims aged between six months and 15 years including his infant daughter. Subsequently, the respondent pleaded guilty to the following charges:

(a) One count of sexual violation by unlawful sexual connection (digital penetration) (maximum penalty: 20 years’ imprisonment);

(b) One count of sexual violation by unlawful sexual connection

(cunnilingus) (maximum penalty: 20 years);

(c) Two counts of attempted sexual violation by unlawful sexual connection (digital penetration) (maximum penalty: 10 years);

(d) Three representative and three specific counts of indecent assault on a girl under 12 (maximum penalty: 10 years);

(e) Three representative counts of indecent assault on a girl aged between 12 and 16 (maximum penalty: 7 years).

[3] Without the respondent’s confession, it is unlikely any of the offending would have come to light. A summary of the facts is set out in Allan J’s sentencing remarks as follows:

[5] There are eight victims, all girls ranging in age from six months to

15 years. It is necessary to outline your offending only in brief detail:

a) Between 1990 and 1992 you were involved as a youth worker at a Hamilton church. During that period in the course of chasing games with children of the congregation

you took the opportunity to single out a particular female member of the congregation aged between 13-15 years at that time. You placed your hands under her clothing and fondled her breasts. On one occasion you managed to put your hand inside her underwear, and on another you attempted to insert your finger into her vagina, but instead touched her anus without penetrating it. On each occasion you were told by that victim to stop what you were doing, and you desisted when that occurred.

b) Between January 1994 and early February 1997 you babysat for a Hamilton family known to you through your church activities. The victims were the daughters of that family. At the relevant time they were aged, in one case between 6-9 years, and in the other between 4-7 years. As to the elder sister, on a number of occasions you went to her bedroom and approached her as she slept, in order to fondle her genitalia. On one particular occasion when you were reading a story to the younger girl as she sat on your lap, you took the opportunity to fondle her genitalia through her clothing. That offending ceased when you travelled overseas.

c) The next victim is your cousin. In 1995, on a family occasion, and on two later occasions during the year, you fondled the victim’s breasts.

d) The next victim was at the time four years old. She was again the daughter of a couple known to you through your church activities. You were babysitting for them. While the victim was asleep you put your hand inside her underwear, touched her genitalia and partially inserted your finger into the girl’s vagina. She then awoke and you desisted thereafter.

e) You offended further between May 2001 and September

2004, again in the context of a friendship you had developed with a couple through your church activities. As in an earlier incident the daughters concerned were aged between 6-9 years and 4-7 years. On occasions you babysat these girls alone. While they were asleep you fondled their genitalia through their clothing. Once you placed your hand inside the younger girl’s clothing in order to touch her directly, and attempted to penetrate her vagina with your finger. You were unable to accomplish that and thereafter desisted. She was asleep at the time.

f) The final victim is your own daughter. Your offending against her commenced in January 2004 when she was approximately six months old, and concluded on 4 May

2005, the day prior to your visit to the police, when she was aged 21 months. On at least 20 occasions you indecently assaulted her by fondling her genitalia with your hand. On one particular occasion you placed your penis directly on your daughter’s exposed genitalia. On another occasion you attempted to penetrate her vagina with your finger as she

slept, but desisted when you could not accomplish that objective. On other occasions you kissed your daughter’s genitalia.

[4] At the time of his confession, the respondent was 36 years of age and married with a young child. As a result of this confession he separated from his wife, and is now unemployed. He had prior to sentencing begun attendance at the SAFE programme for sexual offenders in Auckland. The original pleas were entered in the District Court and the Judge in the District Court transferred sentencing to the High Court on the basis that the District Court Judge considered a sentence of preventive detention might be appropriate (s 90 Sentencing Act 2002).

[5] The Judge on sentencing considered the aggravating features of the offending included: the victim impact; the breach of trust especially relevant to the respondent’s own child; the vulnerability of the victims given their age; the premeditation required for such offending; and the sheer scale of the offending involving eight victims over 15 years. The Judge concluded there were significant mitigating factors which included the voluntary confession, the early guilty pleas and the respondent’s previous good character.

[6] The Judge then considered s 87 of the Sentencing Act and the factors relevant to a sentence of preventive detention. The Judge said the respondent had been convicted of a qualifying offence and given he was over 18 years of age at the time he committed the offences (in 1990 when the offending began the offender was

20 years of age) he was eligible for preventive detention.

[7] The Judge identified the pivotal question was whether he could be satisfied that the respondent was likely to commit another qualifying offence if released from a finite sentence (s 87(2)(c)). He said on the facts of this case there was sexual offending of varying seriousness involving multiple complainants over many years. He concluded the seriousness of the harm to the community was significant. The Judge then turned to the information relevant to predicting the respondent’s “tendency to commit serious offences in the future” (see s 88(1)(b)). He considered the reports from two psychologists, Mr Lascelles and Ms Mannion, a psychiatrist Dr Galpin, and from Dr Collier, a psychiatrist, obtained by the respondent.

[8] Both psychologists referred to the respondent’s risk of re-offending as being low as assessed by the Static-AS actuarial instrument but concluded by reference to dynamic risk factors that this was an under-representation of his actual risk of re- offending. Mr Lascelles referred in his report to an assessment of “stable dynamic factors (those that may be open to change but do so slowly)” using the SONAR instrument, some of which he identified as “problematic”. He did not provide a detailed SONAR assessment. The overall impression which these reports leave is that the psychologists’ high risk assessments were not actuarially based.

[9] As to Ms Mannion’s report the Judge said:

[33] She concludes that overall there will be a continuing high risk of reoffending over a significant period, irrespective of your motivation and preparedness to address your offending, and irrespective of treatment, at least in the early stages.

[10] As to Dr Galpin’s report, he said:

[34] Overall, Dr Galpin concludes that you display a mixed profile and accordingly, risk assessment is a difficult exercise.

[11] In relation to Dr Collier, the Judge said:

[35] ... but like Dr Galpin he is somewhat guarded in his overall assessment, noting that you have offended over a period of many years.

[12] In summary, the Judge said:

[36] The picture painted by these experts is somewhat mixed.

Ms Mannion is inclined to put the risk of reoffending following the expiration of a finite term of imprisonment, at a fairly high level. Dr Galpin is much more guarded. There is a risk, but the experts do not put it at a level which, of itself, strongly points to a sentence of preventive detention.

[13] The Judge then turned to the respondent’s efforts to address the cause of his offending. He said:

[37] ... Everything before the Court suggests you are both highly motivated in your desire to put offending of this type behind you, and that you are prepared to co-operate to the best of your ability in successfully completing such rehabilitative programmes as may be

arranged for you. This factor plainly operates in your favour in the assessment I am required to undertake.

[14] The Judge said he took into account what he viewed as the respondent’s genuine remorse and the principle that

[39] ... a lengthy determinate sentence is preferable where this provides adequate protection for society.

[15] The Judge then considered this Court’s comments in R v Parahi [2005]

3 NZLR 356. In particular he focused on the appropriateness of a sentence of preventive detention where the relevant offences were indecencies as opposed to sexual violation. He said, referring to Parahi and this case:

[41] The present case is not confined to indecencies but the charges of sexual violation do not fall into the upper end of the scale. However, the overall scale of your offending is similar to the type of case discussed in Parahi and I believe it is appropriate to bear in mind the strictures contained in the passage to which I have just referred.

[16] The Judge referred to the availability of extended supervision orders if a finite sentence was imposed and concluded:

[49] Although the case for preventive detention has its strengths, the contraindications reviewed above lead me to the conclusion that preventive detention is not justified in this case.

[17] The Judge then turned to the question of a finite sentence. He considered, of several authorities provided to him, that R v Turner CA113/04 4 October 2004 most closely matched the facts of the present case. He concluded a proper starting point for the overall offending was nine years imprisonment and deducted three and a half years to reflect the respondent’s guilty plea, his confession, remorse and spotless record. He concluded a minimum sentence of imprisonment was required and set that period at three years and three months imprisonment.

Preventive detention – submissions

[18] The Crown submits that the Judge’s assessment of the expert evidence “is open to question”. It disputes the Judge’s assessment that “the experts” did not put risk of reoffending at a level which strongly pointed to preventive detention. The

Crown submits that the report of Ms Mannion identifies a high risk of re-offending and that Dr Galpin and Dr Collier did not directly dispute this but said risk assessment was difficult. The Crown says, therefore, that considered as a whole this evidence establishes the likelihood of qualifying sexual offending on release by the respondent. The Crown says the Judge’s optimistic view of the likelihood of successful treatment is not supported by the report of Ms Mannion.

[19] Secondly, the Crown submits the Judge misapplied this Court’s decision in Parahi. The Crown says the Judge considered the offending in this case fell within the category of cases identified in Parahi when the Court said:

[86] ... The sentence will not be appropriate to get indefinitely out of the way those whose conduct, although a nuisance, does not qualify as serious. It would be quite wrong to resort to the sentence as, in effect, a “street-cleaning” exercise.

[20] The Crown maintains there is no rule of law which requires exceptional circumstances as a pre-requisite for preventive detention where the offending is indecency rather than violation. It points out that offending involving indecency can vary widely from nuisance type behaviour to conduct on the edge of sexual violation. The Crown says the offending in this case was much worse than the facts of Parahi and other cases mentioned by the Judge of R v Burkett CA416/00 21 February 2001 and R v Bailey CA102/03 22 July 2003.

[21] The Crown submits the Judge’s focus on the lesser effect on the victims, given many were asleep or very young, or where penetration was slight, is misplaced. It submits the judicial focus, when considering preventive detention, should not be on victim impact but, to adopt the words of this Court in R v Dean, CA172/03 17 December 2004:

... is on whether the offending, where seen in context, demands a special reaction for the protection of society or a group within society.

[22] The Crown suggests that the Judge should have seen the possibility of a rehabilitative programme as coming before any release and therefore more appropriately fitting within a sentence of preventive detention than a finite sentence. See R v Bryant CA236/03 16 December 2003.

[23] The respondent submits that there is ample evidence to support the Judge’s conclusion. Counsel says the Judge was entitled, on the evidence, not to be satisfied the respondent was likely to commit a qualifying sexual offence on the sentence expiry date. He says that neither Dr Galpin or Dr Collier concluded that there was such a likelihood. The respondent submits the information from the pre-sentence, Dr Collier and Dr Galpin’s reports supports the Judge’s conclusion that there was nothing to suggest treatment in this case would not be successful.

[24] As to the Judge’s approach to Parahi the respondent submits that the Judge correctly applied this authority. Counsel submits the offending in this case is “at the lower end of the scale” and accordingly this Court’s observations in Parahi could properly be applied to this sentencing.

Preventive detention - discussion

[25] There are aspects of the Judge’s approach which we do not endorse.

[26] The offending in this case was extremely serious involving as it did two counts of sexual violation (including one where the victim was his baby daughter) and two counts of attempted sexual violation. It was far more serious than the offending in Parahi which addressed the circumstances in which “serial low-level sex offenders” can be appropriately sentenced to preventive detention. Thus we do not agree with the comments of the Judge recorded in [41] of his sentencing remarks (see [15] above) in which he treated the scale of the offending in the present case as being similar to that in Parahi.

[27] It follows that there is force to the Crown complaint that the Judge failed to properly appreciate the seriousness of the offending.

[28] That said, the seriousness of the offending is not in itself the controlling consideration in deciding whether a sentence of preventive detention should be imposed. And, on the information before him, the Judge was entitled to conclude that there was not “strong” evidence pointing to the likelihood of qualifying sexual offending on release. There was no agreement between the psychologists and

psychiatrists as to likelihood of risk. The psychologists were prepared to identify a high risk of re-offending but the Static AS actuarial measure placed the appellant in a low risk category. The two psychiatrists both considered that there was a “mixed profile” which meant prediction of future sexual misconduct by the respondent was difficult. Neither Dr Galpin nor Dr Collier, therefore, was prepared to say there was a likelihood of future, qualifying offending, by the respondent.

[29] As well there are three other factors which are of significance:

(a) The respondent confessed spontaneously and started a SAFE programme. He is obviously ready to get treatment and recognises his conduct was wrong.

(b) The respondent will presumably get treatment in prison.

(c) If treatment does not work then there is the real likelihood of an extended supervision order.

[30] In those circumstances, and bearing in mind that this is a Solicitor-General appeal, we are not prepared to impose a sentence of preventive detention.

Finite sentence – submissions

[31] The Crown submitted in the alternative that the finite sentence of five and a half years imprisonment was manifestly inadequate. It submitted that the proper starting point for the offending against the respondent’s daughter alone was seven to eight years imprisonment. It said that this starting point should be increased by four to five years to reflect the other offending, some of it serious, against seven victims over an extended period of time. In addition, the Crown submitted that a finite sentence in this case could properly be increased to reflect the respondent’s uncertain prognosis and thus to protect the public (see R v Leitch [1998] 1 NZLR 420 (CA)). The Crown did not dispute the Judge’s reduction for mitigating features at almost 40 percent of the starting sentence. The Crown said, therefore, that a final sentence of

seven years and four months imprisonment with an appropriately recalculated minimum non parole period should be imposed.

[32] The respondent submitted that a sentence of five and a half years was within the range of sentences properly available to the Judge. The respondent supported the Judge’s view that the case most similar to the current facts was Turner. However, the respondent submitted that the offending and victim impact in Turner was much more serious than the facts of this case.

Finite sentence - discussion

[33] It was accepted by the Crown that the respondent properly received a discount of 40 percent for the strong mitigating features, the most important of which was that the respondent initiated the criminal process by disclosing his offending.

[34] If we took the view that the Judge could not have adopted a starting point of less than 11 years, we would have been prepared to interfere with the sentence. Such a starting point would have resulted in a final sentence of six years seven months and such a sentence would be sufficiently different from the sentence as imposed (five years six months) to warrant the conclusion the latter sentence was manifestly inadequate. But if a starting point of say ten years was appropriate, the impact on the final sentence after allowing for the discount would not be sufficiently marked to warrant the allowing of a Solicitor-General appeal.

[35] We have given this aspect of the case anxious consideration. As is apparent, we think that the Judge under-stated the seriousness of the offending. A starting point higher than nine years was open to him, notwithstanding Turner. But the difference between what we would regard as an appropriate sentence and the one as imposed is not sufficiently material to warrant allowing of the appeal.

Result

[36] We therefore grant the Solicitor-General leave to appeal, but dismiss the appeal.

Solicitors:

Crown Law Office, Wellington

Public Defence Service, Auckland, for Respondent