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R v MacDonald aka Parsons [2016] NZHC 1497 (1 July 2016)

Last Updated: 7 August 2017

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2015-019-005963 [2016] NZHC 1497

THE QUEEN

v

GREGORY SHANE MACDONALD (AKA) GREGORY SHANE PARSONS

_{SENTENCING NOTES OF HINTON J}

Solicitors/Counsel:

Almao Douch, Hamilton

R J Laybourn, Barrister, Hamilton

R v MACDONALD (AKA) PARSONS [2016] NZHC 1497 [1 July 2016]

Introduction

[1] Mr MacDonald, you appear for sentencing today after having pleaded guilty to one charge of indecent assault on a child under 12. The maximum penalty for this charge is 10 years’ imprisonment.

[2] You appear in this Court because a sentence of preventive detention is an option, as you have heard.

The facts

[3] The summary of facts to which you have pleaded guilty is this: on 15 October

2015, you were at your home address in Whangamata. You noticed three young children playing at a reserve behind an adjacent property.

[4] You approached them, asking if they wanted to play a game with you. Two of them ran away, but a five year old girl remained. You took her by the hand and led her to an adjoining property.

[5] At the rear of that property was a hut/bar area. There, you removed her skirt, pants and underwear before removing your own lower clothing.

[6] You began to touch her around the buttock area, before being interrupted by her mother calling for her from their home address. This resulted in the child putting her clothes back on and running to her home address.

[7] You then got dressed and returned to your own address, where you subsequently overdosed on prescribed medication. You were airlifted to hospital.

Personal circumstances

[8] I turn to address your personal circumstances.

[9] You are 45 years old. You were born in New Zealand, but moved with your mother and siblings to Australia at a young age. You have lived there since, but were

deported in 2011, after having spent the majority of your time in prison since about

1985.

[10] You have a long list of previous convictions, the majority of which relate to sexual offending against children. Based on the health assessors’ reports, it seems you attribute your offending to paranoid thoughts or voices telling you that your targets (being 4-6 year old girls) are laughing at or making fun of you. This then leads to feelings of hurt or anger, with the voices telling you that you should “punish” them for treating you that way.

[11] You also said that you target young girls because “[you] could manipulate

and punish them for the way [you] were dealt with” as a child.

[12] You said you were sexually abused as a child, first by your uncle, and then by a foster father while you were in his care. You also said that this foster father taught you, when you were 9 to 12 years old, to sexually abuse young girls.

[13] You left school at the age of 12, and by the time you were 13 or 14 years old, you were convicted for your first set of sexual offences. From there, you were convicted of a series of sexual and violent offending. All of your victims were strangers to you and they were all under the age of 10 at the time of your offending, the youngest being aged 3.

[14] You have had periods of self-harm. You said that much of this is your way of punishing yourself about your sexual offending.

[15] You have a long psychiatric history. You said that when you were about

9 years old, your mother authorised 28 shock treatments after you told her that you were hearing voices. You said that this experience taught you not to speak of mental health issues or hallucinations, which is why, at certain times in your adult life, you denied any experience of them.

[16] But you received medication for paranoid schizophrenia with borderline personality disorder in around 2005. You have also attended drug and alcohol

courses, and completed a residential treatment programme and maintenance sessions for high risk male sex offenders. You also completed numerous educational and occupational courses while you were in and out of prison.

[17] You have had one consensual relationship. You said that during that period, you continued to sexually offend against young girls. You have one child; a girl. You have no contact with her because you say you were not ready for parenthood at the time. (You were 30 years old).

[18] Following your arrival in New Zealand after being deported, and with the help of the Salvation Army, you reconnected with your father and aunt, with whom you continue to have good relations.

[19] You lived in accommodation attached to your aunt’s house in Whangamata for four-and-a-half years. Up until your most recent offending, your aunt’s impression was that you were doing well.

[20] You were attending regular follow-ups at the Adult Mental Health & Addiction Services in Whangamata. You said you trusted the people there, and were open about your history and risks. You were also compliant with taking your medication. About a year-and-a-half prior to your offending, you started seeing a general practitioner instead. You did not like this change, and were not open about your risks on offending at your appointments. You also stopped taking your medication because, you said, the voices in your head told you that you no longer needed it.

[21] On the day of your offending, you took a lot of pills which you had hoarded over a period of four to six weeks, because you felt bad and were contemplating suicide. You then noticed young children playing outside. That is when you offended. Following your offending, you went home and consumed more medication. This was a serious suicide attempt.

[22] Mr MacDonald, the health assessors are in agreement that you are at a high

(or in the opinion of one assessor, very high) risk of sexual offending.

[23] You told one of the health assessors that you think you need to spend time in prison, and attend programmes to “learn more” about sexual offending, though you could not explain what you meant by this. It was the health assessor’s view that you responded in a carefully-rehearsed manner, by using clinical jargon or catch phrases, without necessarily understanding what you were saying. Also, in the health assessor’s view, your judgment is impaired, because you tend to shift the blame of offending towards the voices in your head and victimise yourself due to what you said happened to you as a child.

[24] The health assessors say you are at risk of reoffending when you are stressed, frustrated, or thinking about past negative experiences. You are also at risk if you fail to take medication regularly. Lack of stability or support from others also presents risk. You told your probation officer you are scared when you do not have ongoing support.

[25] I note that you clearly have had good support from your aunt, yet this incident occurred when she went out for just a brief time. It seems that you need support or supervision for 24 hours a day, from people whose job it is to do that.

Victim Impact Statements

[26] I have before me two victim impact statements. One of them is from the victim’s mother, who describes the impact of your offending on the victim. She says her little girl has been robbed of her innocence, and the incident has changed her. The victim has had ongoing counselling, but things have not been the same since.

[27] Her daughter is wary when she is outside and away from the house. She is wary of strangers. She will not get dressed in front of people. She has difficulty

sleeping at night and often has bad dreams about what happened. She is scared to go to the toilet.

[28] The second report is from the victim’s counsellor. She recalls what the victim has told her over these sessions, and that she continues to have tantrums because she cannot stop thinking about what had happened. At times, she is convinced “that man” is in her bedroom. She has nightmares about the incident and sometimes wakes up screaming, and hugely distressed. The writer adds:

I asked [the victim] if she wanted me to put anything into this letter I am writing on her behalf and she said, ‘Tell them I feel safer, but only because the bad man is in prison. Also when I am with mum and she locks the doors, and it would be better if we could move house so I don’t have to see the shed from my house.’ Such strong statements from a five year old.

Approach to sentencing

[29] Mr MacDonald, you have heard what the Crown’s lawyer and your lawyer have submitted should be the appropriate sentence. The Crown says I should adopt a sentence of preventive detention, which is an indeterminate prison sentence. If this sentence is imposed, you will be imprisoned indefinitely, with a minimum period of imprisonment imposed by this Court and your actual date of release will be determined thereafter at the discretion of the Parole Board.

[30] Your lawyer says I should not impose preventive detention. I should adopt a finite sentence; a certain number of years.

[31] In sentencing you today, I first consider what finite sentence would be appropriate for your offending and then look to see if, instead, a sentence of preventive detention should be imposed.

[32] I follow a standard process, which first requires me to establish what we call the “starting point”. That requires me to look at the nature and extent of your offending. There is no guideline judgment for the charge of indecent assault on a child under 12. However, I have considered broadly similar cases to ensure my starting point is in line with what has been adopted in those cases.

[34] In sentencing you, I also have regard to the purposes and principles of sentencing set out in the Sentencing Act 2002. The relevant purposes include the need to hold you accountable for the harm you have done to the community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, that harm; to have regard to the interests of the victim; to denounce and deter your conduct; to protect the community; and to assist in your rehabilitation and reintegration.

[35] I take into account the gravity of the offending; the seriousness of the type of offence; consistency with comparable cases, and the need to impose the least restrictive outcome appropriate in the circumstances.

The finite sentence

[36] I now consider what finite sentence would be appropriate if I were to adopt a finite sentence.

[37] The Crown says, as you heard, I should adopt a starting point of 18 to

24 months’ imprisonment, with an uplift of 12 months to take into account your previous convictions. From that, the Crown say you are entitled to a discount of

25 per cent for your guilty plea.

[38] Your counsel does not specify a particular starting point, but says I should adopt a finite sentence “of appropriate duration”, with a discount of 25 per cent for your guilty plea.

[39] Having considered the submissions and the authorities which the Crown has referred to,¹ I adopt a starting point of 20 months’ imprisonment. Your offending was predatory in nature, particularly in respect of you having removed the victim

_{from a public space and isolating her from her playmates. You deceived her into}

1. R v Neil [2014] NZHC 2378; R v Tepania [2014] NZHC 2230; Fisher v Police [2014] NZHC 2189; R v Kenny [2013] NZHC 2787; and Read v R [2012] NZCA 335.

thinking you were going to play a game, and this level of manipulation appears to be consistent with your general pattern of offending, which I will come back to.

[40] Although she was a stranger to you (like all your victims have been in the past) so there is not necessarily an abuse of trust, I consider your method of offending is consistent with you trying to quickly gain her trust and then abusing it.

[41] Although the extent of your offending is not as serious as the cases which the Crown referred to in their written submissions,² this was probably only because you were interrupted by her mother having called her name. You undressed the victim and undressed yourself, and touched her buttock area, which must be categorised as serious.

[42] Lastly, your victim was obviously vulnerable because of her age. This is an aggravating feature.

[43] Turning to your personal circumstances, Mr MacDonald, I agree with the Crown submission that an uplift of 12 months’ imprisonment is appropriate to take into account your previous offending. On my count, you have 13 convictions for sexual offending, some of which are accompanied by violent offending. All of your victims are children. These convictions extend over a consistent period of time from

1984 to 2005. You were out of prison in 2011, after having served a sentence of imprisonment of six years. Regrettably, your previous convictions demonstrate your offending is not out of character and that there is a need for a greater deterrent response.

[44] I accept, as both counsel submitted, you are entitled to a discount of 25 per cent for having entered a guilty plea.

_{[45] The end sentence would therefore be 24 months’ imprisonment.}

² For example, Fisher v Police, where the defendant was masturbating himself and the victim was masturbating him; or R v Neil where the defendant grabbed the victim’s hands and placed it on his exposed erect penis.

[46] I now turn to consider whether a sentence of preventive detention should be imposed.

[47] 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.³

[48] There are three preconditions to imposing a sentence of preventive detention.⁴ The first two are automatically met in your case, as you are convicted of a qualifying sexual offence and you are over the age of 18.

[49] The real issue, which is the third precondition, is whether I am satisfied⁵ that you are likely to commit another qualifying offence if you were to be released at the end of any finite sentence I might impose on you.

[50] The Act provides for a list of obligatory factors which I must take into account when considering whether to impose preventive detention.⁶

Any patterns of serious offending disclosed by the offender’s history

[51] The first matter I must consider is any pattern of serious offending disclosed by your history. As I have said, Mr MacDonald, you have been in and out of prison for similar offending since you were 13 or 14 years old. You are now aged 45. It is apparent that the sanctions that have been imposed in the past have, sadly, not had a deterrent effect on you.

[52] Your pattern of offending was described by one of the health assessors as follows:

³ _{Sentencing Act, s 87(1).}

⁴ _{Sentencing Act, s 87(2).}

⁵ The term “is satisfied” carries no implication of proof beyond reasonable doubt, but merely implies that the court must make up its mind on reasonable grounds, or come to a judicial decision on the matter: R v Leitch [1998] 1 NZLR 420 (CA).

⁶ Sentencing Act, s 87(4).

[it involves] approaching a young pre-pubescent girl, who [you] perceive to be between four and six years of age and unaccompanied by an adult. [You] would most likely speak to the young girl and lure her out of public view on some pretext. [You] would then adopt a dominant manner and abuse/threaten her verbally, undress her and sexually violate her by cunnilingus and/or attempted or actual penile penetration.

[53] Many of these factors feature in the present offending. Although matters did not progress far because you were interrupted, you yourself said (to the probation officer) that it was fortunate the victim’s mother had called out for her because “it could have been a lot worse”.

[54] The fact you have not offended for about four-and-a-half years since being out of prison, in my view, means little when looking at the bigger picture. It is also relevant that your offending fell within the first five years of being released out of prison, which is consistent with the view of one of the health assessors that you are likely to pose a high to very high risk of reoffending within the first five years of release into the community, with this risk increasing over ten years.

The seriousness of the harm to the community caused by the offending

[55] The next matter I am required to consider is the seriousness of the harm to the community, caused by the offending. Child sex offending always poses serious harm to the community. But your case goes further than that. The removal of opportunity is extremely difficult in any community when the victims you seek out are young pre-pubescent girls who are strangers to you. This is extremely difficult to monitor or control within the community.

[56] Not only is your offending harmful to children, but also to their parents and families. The predatory nature of your offending is seriously traumatic, for the young child and for parents and other adults, who can fully understand and appreciate the seriousness and consequences of your offending.

[57] The third matter I am required to consider is information which indicates a tendency to commit serious offences in the future. Mr MacDonald, there is no dispute that you present a high risk of reoffending.

[58] It is one of the health assessor’s view, which I accept, that considering your age; level of intelligence and prior efforts at rehabilitation, it does not seem likely that your core attitude about sexual offending will change, or that you are able to change it.

[59] There are a number of risk factors which could at any time trigger your offending, including failing to take medication or having a change of routine or loss of support. Your offending captures all of this. Unfortunately, Mr MacDonald, no one can anticipate when these risk factors might arise. They are part of ordinary life. Your inability to deal with them, or rather, your tendency to deal with them through serious offending, is a factor pointing towards the imposition of preventive detention.

The absence of or failure of efforts by the offender to address the cause or causes of the offending

[60] The next matter I am required to consider is the absence of or failure of efforts by you to address the cause or causes of your offending.

[61] Mr MacDonald, you have already had a broad array of treatments for sexual offending. You received hormone treatment by injection during the twelve months prior to release in October 1995. After having no treatment for six months, you returned to child sex offending. In 1996, you attended numerous sessions of counselling and you continued with this until about mid-1997. In 1998, you participated in a sex offenders’ programme in Cooma Correctional Centre (NSW). You also attended drug and alcohol courses while you were in prison, and completed a residential programme for child sex offenders in 2004, after being released from prison. You attended maintenance programmes in 2006 and 2007; and again in 2009

and 2010. In New Zealand, you attended monthly meetings at a support group for psychiatric and addiction survivors.

[62] Unfortunately, none of these efforts have had a lasting effect. Your counsel says that you have not had actual treatment for four-and-a-half years since having arrived in New Zealand, which you plainly should have had. But I cannot see how this deviates from the position that your efforts at rehabilitation have either failed, or are lacking, and probably the former. While I do not overlook your efforts (which at times have been voluntary), my focus, as I have said to you, has to be on the risks you pose to the community.

[63] It is also relevant that both reports say you take little responsibility for your offending. You tend to victimise yourself by referring to your traumatic upbringing or say the voices in your head made you act the way you did. Your inability to acknowledge your offending is an impediment to treatment or management of the risk.

The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[64] I have considered the principle that a lengthy determinate sentence is preferable if it can provide adequate protection for society. This principle is in line with the more general sentencing principle that the court must impose the least restrictive outcome that is appropriate in the circumstances.

[65] However, the weight I attach to this factor must be balanced with other factors which I have already considered.

[66] All in all, I am satisfied that you are likely to commit another qualifying offence if you were to be released at the end of any finite sentence I might impose on you.

[67] So, Mr MacDonald, the statutory criteria for preventive detention are met. Having regard to all of these considerations, I turn to consider whether a sentence of preventive detention should be imposed, or whether a finite term of imprisonment is sufficient.

[68] Your counsel submits that the four-and-a-half year period of non-offending in New Zealand demonstrates that a structured and supervised environment could achieve some success. However, the point is that you resorted to a typical pattern of offending. Your counsel refers me to a comment in one of the reports, which is that you require constant external risk management measures to avoid further child sex offending. The same report goes on to say that you need to be placed in a highly supervised environment, and that imprisonment has clearly provided constraints and removal of opportunity for you in the past.

[69] The factors I have mentioned satisfy me that a finite sentence will not protect the community in a meaningful way.

[70] I am satisfied I should impose a sentence of preventive detention.

Conclusion

[71] Mr MacDonald, please stand.

[72] On the charge of indecent assault, I impose a sentence of preventive detention with a minimum non-parole period of five years’ imprisonment. Stand down please.

------------------------------------------------------- Hinton J