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High Court of New Zealand Decisions |
PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF
COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985.
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI 2003-044-6564
THE QUEEN
v
THOMAS MAXWELL CLARK
Appearances: H Leabourn for the Crown
R Harrison for the Prisoner
Sentencing:
6 December 2005
SENTENCING REMARKS OF ELLEN FRANCE J
[1] Thomas Clark, you appear for sentence having been
convicted after trial on
the following charges:
a) Sexual violation by rape (s 128(1)(a) Crimes Act 1961); and
b) Unlawful sexual connection digital penetration (s 128(1)(b) Crimes
Act 1961).
[2] The District
Court declined jurisdiction to sentence you because the Crown
sought preventive detention and so the matter has come to this Court.
R V CLARK HC AK CRI 2003-044-6564 6 December 2005
Facts
[3] Your offending involved two complainants. The first complainant,
aged 13
at the time, was at a party in early September 2003. At the end of the night, the
complainant and her boyfriend pulled out
a sofa bed in the lounge to sleep on.
[4] You were also at the party. The complainant had not met you before that
night. You
pulled a mattress near where the complainant was sleeping and lay down.
When she fell asleep, you put your arm on her hips and touched
her thigh. The
complainant felt you pulling her towards you.
[5] She left the room and went to the bathroom. You pushed your
way in and
backed her onto the washing machine and kissed her on the mouth. You asked if
you could have sex with her. She said no.
[6] You then pulled her pants down and forced yourself between her legs, after
which you put your fingers and tongue into
her vagina. She curled into a ball and
then told you that if you tried anything else she would call out to the others in the
house.
You then backed off, and she ran back to where her boyfriend was sleeping.
[7] The second complainant was also only 13 at
the time. On 22 September 2003
she had been babysitting and then walked to a petrol station to get some food. On
her return, she
noticed you behind her. She recognised you as someone she had seen
around before. You asked her if she wanted a cigarette and you
both went to a
nearby reserve to have one.
[8] You then grabbed the her by the elbow and she fell to the ground. You
pulled
up her clothing and held down her arms while kissing, licking, and sucking
her chest and neck. She began crying. Digital penetration
followed. Despite her
pleas to you to stop, you forced your penis into her vagina and continued until you
ejaculated telling her
to shut up. You told her you would buy her lunch a day or so
later.
Personal circumstances
[9] You are 34 years old and of
Tainui descent. You have a history of short-term
employment. You have never been married and have no dependants. You were
diagnosed
with schizophrenia in 1993.
[10] The pre-sentence report writer says you denied involvement in the offending,
and I'll come back
to what you say about that now, and say the prosecution case is
about "60 percent" accurate. You expressed little remorse and the
report writer says
you showed little insight into the effects of your offending on the victims. The
report writer assesses you as
having low motivation to change and a high risk of re-
offending. Imprisonment is recommended.
[11] I have also read your earlier
letter to the Court. It refers to your league
playing, to the various certificates you have got while in custody, and as well to
your
participation in the kapa haka group, and I now have your certificates. That earlier
letter does not, however, show any particular
insight into what you have done and
how it has hurt others. I mention that to lead into the fact that your counsel seeks to
explain your approach in part by reference to your intellectual
abilities and - possibly
- associated mental health difficulties. He says this means you take longer than some
to come to grips with
things. The submission is that you do now accept
responsibility for offending in relation to the first complainant.
Victim
impact reports
[12] The victim impact reports from the complainants show only too well the
tragic impact of this sort of offending.
The associated report from one of the
complainant's family members supports that. Both complainants found giving
evidence
traumatic and both continue to have difficulties after that. One
complainant has been particularly affected. I do not
repeat the detail but, plainly, the
harm you have caused them and their families is very relevant in sentencing you.
Reports from
health assessors
[13] Under s 88 of the Sentencing Act, the Court ordered assessment reports from
two appropriate health assessors
and two reports have been obtained, and I do have
to say something, Mr Clark, about the detail of those reports.
[14] The first
report is dated 11 July 2005 and is from Sabine Visser, a Senior
Registered Clinical Psychologist with the Regional Forensic Psychiatry
Services at
Waitemata District Health Board.
[15] Ms Visser discusses your personal history. She notes you say you have a
good
relationship with your brothers and sisters, but that your file history indicates
otherwise. In particular, the records show a strained
relationship. You received a
suspended sentence and non-residential periodic detention in 1994 on a charge of
assault of one of your
sisters.
[16] In terms of other personal circumstances, the report says you have played
rugby league until recently. A number
of casual sexual relationships and a patchy
work record are also discussed.
[17] The report explains a history of alcohol and
marijuana usage and then
discusses your mental health. That includes a number of hospital admissions under
the Mental Health Act,
but says there were no further admissions after 1993 when
you were diagnosed with schizophrenia. You have been on medication since
then
and are described as, and her words are "partially compliant" with, that regime. You
described current symptoms of schizophrenia.
[18] The report discusses your offending history. In assessing your risk of re-
offending the report identifies a number of risk
factors, both historical and clinical.
A number of historical risk factors are identified including:
· relationship instabilities
· employment problems
· personality disorder
· mental health issues, and that is a reference to the schizophrenia.
[19] The clinical risk factors identified include:
· Your lack of insight into the offending and, as well, into your
mental
illness.
· Impulsivity, and the report refers to research linking that to violence.
[20] Your
future plans and lack of personal support are also seen as problematic.
For these reasons, Ms Visser concludes you are a risk for
re-offending given matters
such as your limited insight. That risk, at least in the short to medium term, is seen
as high.
[21]
The second report is dated 15 July 2005 and is from Dr Russell Wyness, a
Consultant Psychiatrist with the Regional Forensic Psychiatry
Services, again at
Waitemata District Health Board.
[22] Dr Wyness in his report covers similar matters and confirms Ms Visser's
account of your current mental health, your personal history, and of the risk factors.
Like Ms Visser, Dr Wyness notes you deny the
offending and show little or no
insight into the effect of that on the victims.
[23] The following particular factors were seen
as increasing your risk of future
offending:
· Past criminal history and nature of current offending
· Instability of intimate relationships
· Failure to respond to previous punishment
· Lack of remorse and empathy with victims
· Lack of support systems
· History of alcohol and cannabis abuse
· No fixed abode
·
Erratic employment history
[24] The risk identified by Dr Wyness is of future sexual and non-sexual
offending. While Ms Visser
does not specify the type of offending likely, I consider
I can infer from the matters she discusses that there is a risk of further
sexual
offending of the type referred to in s 87 of the Act.
Submissions
[25] I am going to say something now about the submissions
that counsel have
made today. The Crown seeks preventive detention largely on the basis of the health
assessors reports. If preventive
detention is not imposed, the Crown asks that a finite
term of between 11 13 years with a minimum non-parole period of at least
half
should be imposed.
[26] Your counsel says that any risk you pose can be managed by a finite term of
11 years. In making
that submission, Mr Harrison emphasises your limited previous
history, a gap of about eight years between this and your previous
sexual offending,
and the fact that you have not been to prison before. It is also said that the risk factor
is obscured by your
mental illness. A change of treatment, it is said, for that may
bring about a change in your attitudes to treatment for your sexual
offending.
[27] The submission is also that there are some positive features: your partial
acceptance of responsibility; what
you have been doing whilst in custody; and the
absence of any pattern of multiple offending despite your itinerant lifestyle.
[28]
I am going to deal now with the relevant legal matters.
[29] Sorry, before I do that, I should discuss briefly the features
of your offending.
Features of this offending
[30] The features of your offending which make it more serious are the
vulnerability
of the young complainants; the profound harm you have caused them; a
level of premeditation; and your previous conviction for similar
offending.
[31] In terms of the level of premeditation, your offending may be described as
opportunistic but it was not just
a "spur of the moment" response.
[32] The Crown also refers to a "degree of violence" used, particularly in relation
to the second
complainant. The level of violence, essentially a holding down, was
not however such as to mark out this offending in some way.
[33] There are no mitigating features.
Legal principles
[34] I turn now, Mr Clark, to the relevant legal matters.
[35]
Section 87(1) of the Sentencing Act provides that the purpose of preventive
detention is to protect the community from those who
pose a significant and ongoing
risk to the safety of its members.
[36] The first two requirements of s 87 are met. You have been
convicted of a
qualifying sexual offence and you were over 18 years of age at the time of
committing the offence.
[37] The third
requirement in terms of s 87(2) is that the Court must be satisfied
that you are likely to commit another qualifying sexual or violent
offence if released
at the sentence expiry date of any sentence, other than preventive detention, that the
Court is able to impose.
[38] When considering whether to impose the sentence of preventive detention the
Court must take into account a number of factors,
namely:
(a) any pattern of serious offending disclosed by [your] history;
and
(b) the seriousness of the harm to the community caused by [your]
offending; and
(c) information
indicating a tendency to commit serious offences in
future; and
(d) the absence of, or failure
of, efforts by [you] to address the
cause or causes of the offending; and
(e) the principle that
a lengthy determinate sentence is preferable if
this provides adequate protection for society. (s 87(4))
[39] I take each of these factors in turn.
Pattern of serious offending disclosed by history
[40] You have a previous conviction for indecent assault of a female over
16 years
in 1997. That involved a 17 year old woman who was related to you. She was in a
car with you and your sister and fell asleep
in the back. She awoke to find you had
lifted her shirt and crop-top and were fondling and kissing her breasts. You had also
put
your hand between her legs and were rubbing her vaginal area through her
clothing. When she protested, you threatened her. You were
sentenced to a term of
supervision with a one year suspended sentence.
[41] I accept that, as your counsel notes, there is a
considerable gap between this
offending and the previous. However, there is something of a progression from
offending in respect
of a relation to the present more serious offending of young,
relative strangers.
The seriousness of the harm to community caused
by offending
[42] As to the seriousness of the harm to the community caused by your
offending, on your behalf it is said that
while the offending is serious, without the
previous offending it would not attract a sentence of preventive detention. However,
in terms of the seriousness of the harm to the community, it is serious offending and
as I have said, it has also caused a great
deal of harm to young girls.
Information indicating tendency to commit serious offences in future
[43] Looking then at information
about a tendency to commit serious offences in
the future, your counsel highlights Ms Visser's acknowledgement that your mental
condition
makes accurate diagnosis of future offending problematic. She also says a
change in medication and treatment for your schizophrenia
may change your
response to programmes designed to address your sexual offending. However, she
also says you are resistant to a change
in your treatment.
[44] Both reports conclude you are at risk of further offending and Dr Wyness
considers the risk is of further
sexual as well as other re-offending. Ms Visser
characterises the risk as high. Both of the reports identify a number of factors
in
your life which put you at risk and as Mr Leabourn says, the reports are quite
consistent.
[45] There is nothing at present
to indicate there will be any change in relation to
these matters, and in that respect I do share something of the Crown's scepticism
about your acceptance of the offending in relation to the first complainant.
Absence of, or failure of, efforts to address cause
of offending
[46] As to efforts to address the cause of your offending, there have been no
efforts to-date by you to address
the cause of your offending.
Lengthy determinate sentence preferable if provides adequate protection for
society
[47] The final
factor I have to look at is that a lengthy determinate sentence is
preferable if it provides adequate protection for society.
[48]
Mr Harrison submits that your risk can be managed by a lengthy finite term,
especially as that would enable the appropriate authorities
to examine your mental
condition and whether you are then prepared to undergo treatment. He also says the
Parole Board can insist
on you being properly diagnosed and treated as part of your
conditions on release.
[49] The Crown submission on this aspect is
that preventive detention is necessary
in order to provide adequate protection for society.
[50] On this aspect, I note that
along with the Parole Board's powers there is also
the possibility of release with an extended supervision order. That is relevant
to the
concern about protection.
The outcome
[51] Considering these factors, you avoid preventive detention because, on
balance,
I consider a finite term of the length you will now serve is sufficient to
protect the public. You will be subject for the first
time to a term of imprisonment
and a lengthy term. In saying that I am conscious of the imperative in R v Leitch
[1998] 1 NZLR 420, and R v C [2003] 1 NZLR 30. Preventive detention is not a
sentence of last resort and the threshold is one of expediency not necessity.
[52] However, I consider
it is appropriate to see if the deterrence of a long term in
prison together with any treatment and/or rehabilitative programmes
you undertake
might affect the necessary changes. I am aware also, as I have said, of the prospect
of an extended supervision order.
Length of finite term
[53] I turn then to discuss the length of your term of imprisonment.
[54] Your counsel submits I
should impose an ultimate sentence of 11 years. It is
accepted that your offending would meet the criteria for a sentence of more
than
10 years, but Mr Harrison says 13 years is too high by reference to cases such as
R v Bradbury, CA 342/04, 16 March 2005.
[55] The Crown submits that the standard starting point for a contested rape
charge is recognised as 8 years imprisonment. The
Crown submission is that this is
added to by the fact there is the second complainant, again on a serious charge,
which on its own
the Crown says would attract a sentence of 4-5 years. The Crown
also submits the sentence would be further aggravated by the relevant
previous
conviction.
[56] As the Crown submission indicates, it is now accepted that the starting point
for a single contested
rape is 8 years imprisonment, and I refer to R v A [1994]
2 NZLR 129. Substantial increases may be made in cases involving significant
aggravating features, that is features making it more serious
such as, as here, a young
victim.
[57] In your case a starting point of 10 years on the rape charge is appropriate.
There
is then the additional charge of unlawful sexual connection in relation to a
different complainant, again young. The youth
of the complainant places this
offending at the higher end of the 2-5 year band, that is at 4 years.
[58] Bearing in mind
there are two victims and the public safety risk you pose, I
consider cumulative sentences are appropriate but reduce the figure
by one year to
reflect totality issues.
[59] There are no mitigating factors.
[60] I reach the end effective sentence
of 13 years imprisonment in this way:
a) On the charge of rape, you are sentenced to a term of imprisonment of
10 years.
b) On the charge of unlawful sexual connection, you are sentenced to a
term of imprisonment of 3 years. This sentence is cumulative on the
10 year term making a total of 13 years imprisonment.
Minimum term
[61] The Crown submits I should then impose a minimum of term of at least half
that term.
[62] Your
counsel submits a minimum term of 6 years is appropriate to give you
time to try to deal with these various issues.
[63] This
offending took place before the 2004 change to s 86. Therefore, the pre-
amendment s 86 applies. For the various factors
of the offending identified I
consider the circumstances of the rape are sufficiently serious to justify a minimum
term to reflect
society's condemnation of such conduct towards a 13 year old girl.
[64] A minimum term of 6 years imprisonment on the rape charge
is imposed.
[65] Please stand down.
________________________
Ellen France J
Solicitors/Crown:
Crown Solicitor,
PO Box 2213, Auckland
R Harrison, PO Box 5222, Wellesley Street, Auckland
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