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High Court of New Zealand Decisions |
Last Updated: 10 October 2011
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2006-041-511
CRI-2006-041-1239
THE QUEEN
v
GRAHAM LESLIE ASHCROFT
Hearing: 21 June 2007
Appearances: Mr S B Manning for Crown
Mr E Forster for Prisoner
Judgment: 21 June 2007
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Napier
Mr E J Forster, Hastings
R V ASHCROFT HC NAP CRI-2006-041-511 21 June 2007
Offences
[1] Mr Ashcroft, you appear for sentence today having pleaded guilty to five charges under the Crimes Act 1961. Two of the charges, which are representative in nature, relate to offending that occurred in 1998 and 1999, and are for sexual violation by unlawful sexual connection. The maximum sentence for that offence is
20 years’ imprisonment. You have also pleaded guilty to a charge of doing an indecent act, the maximum sentence for which is two years’ imprisonment.
[2] You also face two charges of indecent assault on girls under 12 years of age. That offending occurred in 2006, and the relevant maximum sentence is seven years’ imprisonment.
[3] Today I am also required to consider whether you should be sentenced to preventive detention under s 87 of the Sentencing Act 2002.
Facts
Offending against E
[4] I begin by setting out the factual background to the offending that occurred in
1998 and 1999.
[5] Between August 1998 and August 1999 you committed various offences against the first complainant, who was 8 years of age at the time. You were her grandmother’s partner at the time of the offending. She lived nearby with her mother and brother and they used to visit your home, which was on a farm, regularly on weekends and during the school holidays. You took advantage of these visits to sexually assault the complainant on several occasions.
[6] You owned horses and the complainant was fond of riding horses. You would take her riding with you, and your offending began in this context. The complainant would sit in the saddle in front of you and, once you were out of sight of others, you would place your hand between her legs and touch her vagina through her clothing. You would then ride to isolated areas on the farm, where you would
unsaddle the horse and ask the complainant to lie down on the saddle blanket. You would then remove her clothing and would penetrate her vagina with your fingers. You would also penetrate the complainant’s vagina with your tongue.
[7] On occasion, the complainant would ask you to stop but this only made you angry. You would yell at her. You would also tell her not to tell anybody about what you had done to her. You made threats towards her and her family. At the end of each episode the complainant would have to get dressed again and ride back to the farmhouse with you. On occasions you would indecently assault her during the return journey by touching her again in the area of her vagina.
[8] Six months after this offending began, you began taking the complainant to a woodshed on the property, where you would pull down your pants and masturbate in front of her. After a month of this activity on weekends, you continued taking the complainant to the woodshed, but would instead undress her, lie her down and digitally penetrate her, despite requests by her that you stop.
Offending against V and N
[9] The second set of charges for which you appear for sentence arises out of your association of some five years with the immediate family of your victims. You visited them regularly at their addresses in Napier. They also visited you at your farm, and on occasions stayed on the farm with you.
[10] In early January 2006 you invited the other two complainants, who are half sisters then aged 7 and 9 years, to go camping with you and two other teenage girls. The girls were to stay with you for several nights. On the first evening you took the two girls from the campsite on a farm that you had been asked to look after to the house on the property. You locked the front door behind you, and then locked yourself and the complainants in the bathroom.
[11] You undressed and told the two complainants to undress as well. You then took each of them with you into the shower separately, and washed them all over with soap and shampoo, including their genitals. You required the first complainant
to face you while you did this and you did not stop when she asked you to. You asked the second complainant the question “does this feel nice?” You told both of them not to tell anyone about what had happened.
Sentencing Act 2002
[12] I am required by the provisions of the Sentencing Act 2002 to bear a number of principles and purposes in mind when sentencing you. In your case I have specific regard to several purposes, including the need to hold you accountable for the harm done, not only to your victims, but to the community by your offending. The sentence also needs to promote in you acknowledgement of that harm and a sense of responsibility for it.
[13] The sentence must acknowledge the effect that your offending has had on your victims. The Court must also impose a sentence that denounces your conduct and deters both you and others from being tempted to commit similar offending in the future.
[14] In your case there is also clearly a need to protect the community from your offending. That can only be done in the long term, however, if whatever sentence is imposed endeavours so far as possible to assist in your rehabilitation so that you can be reintegrated into the community at some point in the future.
[15] I am also required to impose a sentence that adequately reflects the gravity or seriousness of your offending and your degree of culpability for it. If possible, I must impose a sentence that is broadly consistent with other sentences imposed in like cases. I say “broadly consistent” advisedly, because in this particular field the circumstances of no two cases are ever exactly the same.
[16] Once of the principles of sentencing is that the Court must impose the least restrictive outcome that is appropriate in the circumstances. In your case that really means balancing this principle against the need to adequately protect the community.
[17] In fixing a sentence to be imposed the Court must also have regard to factors that makes the sentence more serious. In the present case this includes the extent to which your offending has harmed your victims, the fact that you were abusing a position of trust in relation to them because you were their caregiver and the fact that your victims were all vulnerable because of their age. All of them were in their pre- teen years.
[18] I accept also that your offending involved a reasonable degree of premeditation. Although you do not accept this, I consider that you created sets of circumstance which enabled you to be alone with your victims, and you immediately took advantage of the opportunity that that offered. I therefore consider that to some extent you groomed your victims so that they would be in a position where you could take advantage of them.
Victim impact reports
E
[19] As I have said, the sentence must take into account the interests of your victims and must reflect the harm that they have suffered. The victim of your earlier offending in 1998 and 1999 is now 16 years of age. She reports that she has been deeply affected by your offending. It has affected her ability to maintain normal relationships and has caused her mental anguish and thoughts and feelings of disgust, pain and hatred. She describes the terror that the threats that you made caused her and the feeling of being stained even after the offending ceased. Fortunately for her, she now feels that she is able to move on and regain her dignity having been open about your offending.
[20] I have also received impact victim statements from parents and grandparents of the victims of your offending. They, too, have suffered intense feelings of guilt and anger over what has happened. They are concerned at the fact that they ever allowed you to be in a position to do these things to the people for whom they care.
[21] The other victims from your later offending have also provided the Court with victim impact statements. I do not propose to prolong their agony by quoting
from them. It is clear, however, that your offending has affected them deeply. One of the unfortunate aspects of offending of this type, Mr Ashcroft, is that often the effects of offending like this will not truly be known for many years. Offending like this can affect people for a very long time. In some cases those effects will last a lifetime.
The approach to be taken
[22] I propose to consider first the finite sentences that your offending would normally attract. I will then consider whether, rather than a finite sentence, the indeterminate sentence of preventive detention should be imposed.
[23] The Crown says that that should be imposed in your case because no finite sentence can adequately protect the community from future offending at your hands.
Concurrent or cumulative sentences?
[24] The first matter I need to consider is whether to impose concurrent or cumulative sentences upon you. Given the principles set out in s 84 of the Sentencing Act 2002, I have no hesitation in concluding that concurrent sentences are appropriate in relation to the charges that were laid as a result of your offending during 1998 and 1999. Those offences are clearly a connected series of offences.
[25] I also propose to impose concurrent sentences in respect of the two charges that arose out of your offending on the camping trip in January 2006. Those charges, too, are clearly a connected series of offences.
[26] I consider, however, that the two series of incidents are so separate in time that cumulative sentences in respect of them would be justified. Similarly, all of the sentences would need to be cumulative upon the sentence of imprisonment that you are presently serving.
Starting point
[27] The lead, or most serious, charges in relation to the earlier offending are obviously the charges of unlawful sexual connection. Counsel agree that there is no tariff, or guideline, sentence for that offence: R v Tranter CA486/03 14 June 2004.
[28] In R v M [2000] 2 NZLR 60 the Court of Appeal suggested that starting points are likely to between the range of two and five years after trial and before allowing for mitigating factors. In R v Tranter CA486/03 14 June 2004 the Court of Appeal considered this range to be “conservative”, and emphasised (at [10]) that the appropriate level of sentence will ultimately depend on the level of offending. A starting point of more than five years imprisonment may well be appropriate in a serious case.
[29] In R v T CA 139/05 26 July 2005 the Court of Appeal also observed that the identification of appropriate starting points and end sentences in this area is notoriously difficult. Few cases are directly comparable on their facts, and the sentencing exercise involves a balancing of competing considerations.
[30] The Crown contends that the aggravating features of the earlier offending would justify a starting point of six years imprisonment. It submits that a cumulative sentence should then be imposed in respect of the 2006 offending, but accepts that the later offending was at the mid to lower end of the range.
[31] In his written submissions your counsel contends that a starting point of three years imprisonment would be appropriate in respect of all offending. During oral argument, however, he accepted that the 2006 offending needed to be represented in its own right.
[32] In my view, having regard to all of the aggravating factors that I have identified, a starting point of six years imprisonment is appropriate in respect of the lead charge from your earlier offending. That would adequately reflect the extent and nature of the offending, as well as the vulnerability of your victim and the gross breach of trust that your offending amounted to.
[33] There is no tariff case for indecent assault either. Again, however, the assaults were on young girls who were entrusted to your care and, of their type, they must be regarded as moderately serious. I accept, however, that they did not involve more than touching, albeit in circumstances that would have been highly distressing and embarrassing for your victims. On its own, I consider that the 2006 offending would have attracted a starting point of around two years imprisonment. Taking into account issues of totality, however, I consider that a cumulative sentence of 15 months imprisonment in respect of the 2006 offending would be appropriate.
[34] This means that I have selected an overall starting point of seven years three months imprisonment on both sets of charges. I consider that that finite sentence adequately reflects the totality of your offending.
Aggravating factors
[35] An aggravating feature that in my view should operate to increase the starting point that I have selected is the fact that you have already been convicted of, and served a significant sentence of imprisonment for, sexual offending in the past. In
1989 you were sentenced to four and a half years imprisonment on charges of unlawful sexual connection and doing an indecent act on girls under the age of 12 years. The fact that you have been prepared to become involved in such offending again, on not one but two occasions, is a matter that needs to be reflected in the sentences that are to be imposed upon you. I would therefore ordinarily have increased the starting point in respect of the earlier offending by one year to reflect that fact.
Mitigating factors
[36] The Probation Service has compiled two reports. The first of these was prepared in August 2006 in relation to your most recent offending for which you are currently serving a sentence of two years six months imprisonment. The second report was prepared specifically for this offending, but also refers to the information contained in the first pre-sentence report.
[37] You were born in Taranaki and have three brothers and four sisters. Your parents separated when you were 10, apparently as a result of a violent relationship. You describe your mother as someone with a serious drinking problem and, in speaking to the Probation Officer who prepared the second report, you revealed that you and a brother had been sexually abused by your father. You gave little detail about this abuse, but mentioned that you tried on at least one occasion to tell your mother what was happening. You say that your father was eventually charged with sexual offending, but he committed suicide before his trial. Your mother died in
2000, and it is a reflection on your relationship with her that you did not even attend her funeral. You say, however, that you maintain good relationships with your brothers and sisters.
[38] You left school at around the age of 16 years to become a farmer. You have three children from your first marriage, which lasted some 12 years. This marriage was put under pressure when your twins were born three months prematurely. One of the twins suffered brain damage. Your wife was subsequently admitted to a psychiatric hospital, leaving you with the sole responsibility for your children. It was at this point that you first sexually offended against young female children.
[39] You say that when your first wife was in a mental health facility she made sexual abuse allegations against you, and this resulted in the removal of your sons from the home for a time. You say, however, that they were returned when the claims were found to have no substance.
[40] You told the Probation Officer that you have been depressed since childhood, and were prescribed diazepam in the 1980s for this reason. Your mood swings apparently became more frequent after the birth of your twin sons, and you say that you usually experience those symptoms after you have done something wrong.
[41] You have had several other long-term relationships and you have maintained good relationships with a local family in Raupunga, despite the fact that your previous history was known in the area.
[42] You told the Probation Officer that you offend when there is stress in your relationships. You say that you do not remember any planning or fantasies regarding your offending and you explain its origin as coming from apparently innocent decisions: to wash a child in the shower or to comfort a child in bed. The Probation Officer considered, however, that you groomed the children to a certain extent – cultivating relationships with them through their family and by engaging them in fun activities on your farm.
[43] Significantly, the Probation Officer feels that your motivation to address your offending is dubious. This is because you do not recognise or acknowledge the full extent of your responsibility for this offending. You try to rationalise it, and show no insight into the damage you may have caused your victims. The Probation Officer feels that you may not benefit from specialised treatment as a result, and accordingly assesses you as being at a high risk of reoffending.
[44] Viewing matters overall, the only mitigating factor that realistically operates to decrease the starting point that I have selected is the fact that you have entered guilty pleas. These were entered on the morning of the trial of the 2006 charges and shortly before your trial on the earlier charges.
[45] You are, however, entitled to some credit notwithstanding the lateness of your pleas, because they represent an acknowledgement of your offending and they spared the complainants the ordeal of having to give evidence at trial.
[46] For those reasons it would be appropriate to reduce each of the sentences by between ten and 15 per cent to reflect your guilty pleas.
End Sentences
[47] On each of the charges of sexual violation by unlawful sexual connection the sentence that would be appropriate is therefore one of around six years imprisonment. On the charge of doing an indecent act, a concurrent sentence of ten months imprisonment would be appropriate.
[48] On each of the charges of indecent assault that relate to the 2006 offending, an end sentence of one year’s imprisonment would be appropriate. Those sentences would be served concurrently with each other, but cumulatively upon the sentences imposed in respect of the earlier offending.
[49] All of these sentences would be served cumulatively upon the sentence of imprisonment that you are currently serving.
Minimum term of imprisonment
[50] Given the fact that the end sentence in respect of the earlier offending is one of more than two years imprisonment, I would also need to consider exercising the power vested in the Court by s 86(1) of the Sentencing Act 2002 to order that you serve a minimum period of imprisonment. The Court may make such an order if it is satisfied that the period that would otherwise be applicable under s 84(1) of the Parole Act 2002 is insufficient for all or any of the following purposes:
b) Denouncing the conduct in which the offender was involved;
d) Protecting the community from the offender.
[51] In the ordinary course of events you would be eligible for parole on the sentences imposed in respect of the earlier offending after serving just over two years of your sentence. In my view the seriousness of your earlier offending means that that period would be insufficient for all of the purposes set out in s 86(1). I do not consider that those purposes could be achieved unless you served a greater proportion of your sentence than would otherwise be the case. I would therefore direct under s 86(2) of the Act that you serve a minimum sentence of imprisonment of three years nine months in respect of the charges of sexual violation.
[52] Having fixed the finite sentences that would otherwise be imposed, I now need to consider whether I should impose the indeterminate sentence of preventive detention rather than a finite sentence.
Should a sentence of preventive detention be imposed?
[53] The Crown, as I have said, seeks a sentence of preventive detention. It submits that this is the best, and indeed the only way, to minimise the risk you currently pose to society upon your release.
[54] Under s 87 of the Act the Court may impose a sentence of preventive detention if the offender has been convicted of a qualifying sexual or violent offence, if the offender is 18 years of age or over at the time of committing the offence and if the Court is satisfied that the offender is likely to commit another qualifying offence if released at the expiry date of a finite sentence.
[55] There is no dispute that you are over 18 years of age and that you have earlier been convicted of qualifying sexual offences. The only real issue to be determined is whether I am satisfied that you are likely to commit another qualifying offence if you are released at the expiry date of a finite sentence. In the present case that would not be for at least four years given the finite sentence that I have already indicated would be appropriate in your case.
[56] The power to impose a sentence of preventive detention is, however, discretionary in nature. In exercising that discretion the Court is required to take into account the criteria set out in s 87(4) of the Act. These are:
a) Any pattern of serious offending disclosed by the offender’s history.
[57] In considering these matters, I am guided by the comments of the Court of
Appeal in R v C [2003] 1 NZLR 30 and R v Parahi [2005] 3 NZLR 356.
[58] In R v C [2003] 1 NZLR 30 the Court of Appeal set out (at 33-34) the approach to be taken under the present legislation with respect to preventive detention.
• 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. This purpose is not materially different from the purpose of the sentence as described by the Court of Appeal in the earlier case of R v Leitch [1998] 1 NZLR 420 which was decided under the old Criminal Justice Act 1985.
• The sentence of preventive detention is not a sentence of last resort, although its imposition must be carefully considered.
[59] In R v Parahi [2005] 3 NZLR 356 the Court of Appeal noted that, where the question of a finite sentence or preventive detention was finely balanced, the possibility of extended supervision orders on release could tip the balance against preventive detention being imposed in respect of lower-level sexual offenders.
[60] I will now assess each of the criteria that I have referred to.
Any pattern of serious offending disclosed by the offender’s history – s 87(4)(a):
[61] I consider that your criminal history shows a clear pattern of serious offending. The offending for which you now appear for sentence appears to be similar to that which led to you being imprisoned in 1989 for your offending the previous year.
[62] The details of that offending are sketchy, but it appears to have been committed against three girls who were around 9 or 10 years of age at the time. The three girls were friends and they would visit the house where you were living at the time. From the material that is before me I gather that you touched the girls inappropriately outside their clothing in the area of their genitals and that you also, on at least one occasion, put your hand down the pants of one of the girls and touched her vagina. Other details regarding the offending are not before me but obviously it must have been serious in nature because of the length of the sentence that you received.
[63] The offending for which you appear for sentence today is also similar in nature. It involves the creation of circumstances in which young girls are placed in your care. You then touch them in a variety of ways, both under and over their clothing. You have also been prepared, at least in relation to the earlier offending, to digitally penetrate at least one of the complainants.
[64] The Court is unable to impose a sentence of preventive detention unless it has first obtained and considered the reports prepared by two properly qualified health assessors. In this case those reports were prepared by a psychiatrist, Dr Barry- Walsh, and a registered psychologist, Mr Niall Morrison.
[65] In Mr Morrison’s report he has this to say about your offending:
[I]t is clear that Mr Ashcroft has been engaged in a pattern of predatory sexual offending against young girls aged between 7 and 10 years and this behaviour has been in evidence for a period of 18 years. His modus operandi involves both grooming of victims and their caregivers to the extent that he is considered as an appropriate person to supervise their children.
[66] In my view, the pattern of your offending is developed by the fact that you say that you tend to offend when experiencing stress, or problems in your relationship. Thus, Mr Morrison writes:
Self-reported information about Mr Ashcroft’s sexual offending illustrates a sexual offending pattern whereby when his relationships are troubled, he seeks out young girls to satisfy his sexual needs. There is also evidence of both long-term and short-term offence planning in his current offending with his careful grooming of both victim and parents to gain their trust and his creation of opportunities where he could be alone with his victims.
[67] To these comments I would add that the offending consistently involves girls visiting you at your home or farm.
[68] All of these matters persuade me that your criminal history now demonstrates a clear pattern of serious offending involving the sexual assault of young girls.
The seriousness of the harm to the community caused by the offending – s 87(4)(b):
[69] As I have already outlined, the victim impact reports demonstrate the dramatic adverse effect that the offending has had on the lives of your victims and their families. As I have said, offending of this type falls within a serious category of offending because of the devastating long term effects that it has on the victims and those around them.
[70] There can be no doubt that your offending has caused serious harm, not only to your victims, but to the wider community at large.
Information indicating a tendency to commit serious offences in future – s 87(4)(c):
[71] Mr Morrison performed three diagnostic tests to assess the likelihood that you will reoffend. During the hearing today Mr Forster criticised these on the basis that at least two of them appeared to be new, and there appeared to be no information to validate the tests or to indicate that they had been subject to peer review. In response, counsel for the Crown advised me that one of the tests is simply an established test that has been given a new name.
[72] Mr Forster’s criticism may or may not be valid. I have no means of knowing that at this stage. It is important to recognise, however, that the tests are no more than an analysis of data in an attempt to predict what may happen in the future. Any predictions regarding matters that may occur in the future are obviously fraught with difficulty. Predictions of future behaviour by human beings is no exception.
[73] The tests are, however, but one tool used by psychologists and other health professionals to assist them in predicting future behaviour. I do not consider that
the criticisms that Mr Forster made detract greatly from the overall assessment made by the psychologist.
[74] Using the first test, the Automated Sexual Recidivism Scale (ASRS), Mr Morrison assessed you as being at medium to high risk of reoffending within five years of entry back into the community, with that risk remaining intact over a ten year period. He noted that that particular test is said to be “robustly predictive”.
[75] The next test, The STABLE-2000, although having limited predictive value, identified the following risk factors:
a) The perceived lack of evidence as to the knowledge of your offending by those from whom you would seek support on release;
b) Your inability thus far to self regulate your deviant sexual preference;
c) Your sense of entitlement that your sexual needs be met and your willingness to use threats as coercion are attitudes supporting sexual assault;
d) Your lack of co-operation with supervision (I interpret this to read treatment programmes) – you have tended to minimise or deny wrongdoing and your willingness to accept treatment might be a wish to portray yourself in a favourable light; and
e) Your generally poor decision-making ability.
[76] Finally, the Psychopathy Checklist: Screening Version (PSL:SV) assessed you as having a high score generated by items indicative of interpersonal and affective deficits that are associated with an increased speed of serious recidivism. This, in connection with your sexual deviance, is assessed as meaning that you have an even higher risk of recidivism.
[77] Mr Morrison concludes his report as follows:
Mr Ashcroft is assessed at high risk of further sexual or violent offending following release from prison, without successful completion of an appropriate intensive specialised psychological treatment. At this stage there is no indication that this risk is likely to be ameliorated within the short to medium term future.
The prognosis for longer term risk management is dependent on whether Mr Ashcroft shows any willingness to meaningfully engage in psychological intervention to address the issues that have facilitated the current offending, and to develop a meaningful relapse prevention strategy that could reduce his risk of future offending.
It must be emphasised that the presence of psychopathic personality traits indicates at best that future successful treatment will need to be long and intensive. Even with the successful engagement in appropriate treatment, Mr Ashcroft’s high assessed risk of serious sexual reoffending is unlikely to change in the immediate future.
Mr Ashcroft’s history of sexual offending despite previous Court sanction suggests that he is likely to sexually reoffend against young girls without undertaking recognised treatment.
[78] I take those conclusions to be a strong endorsement of the view that you are highly likely to reoffend in a sexual way upon your release from prison at the expiry of the finite sentences that would otherwise be appropriate in this case.
[79] The psychiatrist, Dr Barry-Walsh, is not nearly as forthright as the psychologist in this regard. He prefaces his report by noting the difficulties inherent in preparing a report for sentencing purposes. In particular, he identifies the difficulty of preparing a report for punishment rather than intervention and management purposes. He also notes the difficulty of assessing risk where there is likely to be a lengthy intervening period in which the risk may be identified and modified. He says that it is therefore “difficult to make any meaningful comment now about what [your] future risk to the community will be.”
[80] Dr Barry-Walsh observes that you have a history of fluctuating mood disturbances, but he is not of the opinion that these are consistent with a psychiatric disorder such as a depressive illness. Although he acknowledges that the account that he gained from you in relation to your offending and contextual matters surrounding your offending was limited, he says:
On the basis of my assessment I can find no evidence of consistent and direct relationship between any psychiatric disorder and the offending,
although it is possible that his mood difficulties have contributed to the offending.
[81] He goes on to say that you have a history of previous offending which you minimise and that on interview you gave a limited account only of your more recent offending and you appeared to minimise your degree of culpability.
[82] Dr Barry-Walsh preferred not to make any firm estimation as to your future risk upon release into the community and noted that your current minimisation of culpability may have to do with the fact that you have not yet been sentenced.
The absence of, or failure of, efforts by the offender to address the cause or causes of the offending – s 87(4)(d):
[83] On the face of it, you appear to have made little effort to address the causes of your offending. You say, however, that you did not attend courses when you were last in prison because you were not placed in programmes that would have assisted you to rehabilitate yourself. Whether or not this is the case I simply do not know. You have intimated to Mr Morrison that you are willing to attend either Te Piriti or Kia Marama Special Treatment Unit. That resolution on your part is endorsed today by your counsel, who says that you genuinely wish to rehabilitate yourself and that you recognise that you do need help.
[84] Mr Morrison has a degree of scepticism regarding your current enthusiasm. He points out that you said to the Probation Officer who prepared the report for your first sexual convictions that you would seek psychological counselling whilst in prison, but you were later described as having no desire to attend the Special Treatment Unit for Child Sexual Offenders at Kia Marama.
[85] I regard this particular factor as being neutral overall. I simply do not know whether you have ever had the opportunity of participating in any meaningful programme that might address the cause or causes of your offending.
[86] I also bear in mind the comments of Dr Barry-Walsh, who expressed a degree of optimism that intervention may provide some assistance in the future. He says:
Although some controversy about the effectiveness of such treatment programmes remains the general consensus is that such programmes do reduce the risk of reoffending and therefore there is a tangible intervention that may substantially modify Mr Ashcroft’s risk of re-offending before he returns to the community.
The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society – s 87(4)(e):
[87] This factor really speaks for itself. It recognises Parliament’s intention that, where society can be adequately protected by a finite sentence, that is the preferable option.
Conclusion
[88] Mr Ashcroft, I have reached the conclusion that in the absence of intervention it is highly likely that you will reoffend again in the event that you are released into the community at the expiry of a finite sentence. In reaching that conclusion I take into account the opinions expressed by both the health assessors. Of perhaps equal importance in this case is the manner in which you have offended in the past. You have now offended on three separate occasions and that offending has spanned some
18 years.
[89] It is clear to me that you have not yet accepted full responsibility for that offending and it seems reasonably clear that even now you tend to minimise your involvement in it.
[90] I also bear in mind the prediction by Mr Morrison that any therapy that you receive will need to be long and intensive if it is to have real effect. I simply do not think that the kind of therapy that you need would have taken effect by the time that you would be released from prison after serving a finite sentence. It seems to me that even now you are a long way from acknowledging that you do need help. Although your counsel says that you are genuine in this regard, I have a residual concern that that resolve may fade once you begin serving your sentence.
[91] In those circumstances, having been satisfied that you are likely to reoffend in a similar way upon release, I have no hesitation in reaching the conclusion that the exercise of the discretion in the present case should be in favour of a sentence of preventive detention. I do not consider that society will be adequately protected from future offending on your part in any other way.
[92] Even the imposition of a longer finite sentence, which I have the power to impose, would not in my view be sufficient to allay my concerns on this point. Neither do I consider that the possibility that an extended supervision order might be made upon your release would be sufficient either. I do not consider that you should be released from prison until such time as you have sought and obtained such therapeutic intervention as may be available to assist you with the very real problems that you undoubtedly have.
[93] In coming to my conclusion I was assisted by the remarks of the Court of Appeal in R v K CA 57/00 29 March 2000. In that case the offender was sentenced for the indecent assault of a girl aged between 4 and 5 years of age. He had a number of previous convictions for indecent assault. The Court noted that the offending was not in the most serious category, but it was persistent. In addition, a variety of sentences had been imposed with little apparent rehabilitative effect and some of the offending was directed at children.
[94] In imposing a sentence of preventive detention the Court emphasised that the fundamental purpose of preventive detention is the protection of the public, particularly where the victims have been children. The Court also said:
Preventive detention is not reserved only for the most serious types of sexual offending. It is available also for cases such as this where over a long period of time there has been no real change in behaviour and no indication that any improvement is likely in the future.
[95] I consider, Mr Ashcroft, that similar observations can be made in your case, although I take the view that the offending that occurred in 1998 and 1999 was in fact serious. Your offending has occurred over a long period of time. There has been no real change in your behaviour and the health assessors’ reports do not suggest that any improvement is likely in the short to medium term.
[96] Taking all of these matters into account I have reached the very clear view that a sentence of preventive detention must be imposed. That is the only realistic way in which society can be adequately protected during the lengthy time that it will take for you to seek and receive the treatment that you so obviously need.
Sentence
[97] You are sentenced to preventive detention on each of the charges of sexual violation by unlawful sexual connection. On each of those charges you are also ordered to serve a minimum term of five years imprisonment.
[98] Those sentences are to be served concurrently with the sentences that you are currently serving.
[99] On the charge of doing an indecent act you are sentenced to ten months imprisonment and on each of the charges of indecent assault you are sentenced to one years imprisonment. All of those sentences are to be served concurrently, both with each other and with the sentences imposed in respect of the charges of sexual violation and the sentences you are currently serving.
[100] Stand down.
Lang J
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