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R v Lochore [2018] NZHC 2693 (17 October 2018)

Last Updated: 26 October 2018

SENTENCING NOTES OF MALLON J

Introduction

[1] Mr Lochore, there is a bit to go through when a sentence of preventive detention is sought so you can remain seated for now. I can confirm that having listened to the submissions, I have decided not to impose preventive detention. I am going to go with the finite sentence option. I’ve considered it very carefully and listened to the risk factors that are present and as conveyed and summarised by the Crown this morning, but have concluded that it is not appropriate for reasons which I am now going to explain in detail.

R v LOCHORE [2018] NZHC 2693 [17 October 2018]

[2] You appear for sentencing on a representative charge of doing an indecent act on a child under 12 years of age.¹

[3] You were convicted in the District Court on this charge having pleaded guilty to it. You were given a first strike warning. The District Court transferred your sentencing to this Court so that a sentence of preventive detention could be considered.²

The offending

[4] The victim, who will be referred to as L, was an eight year old girl. You shared a house with her father, and L and her sister stayed there each fortnight. L came to be familiar with you through these visits. During one such visit, on the morning of Saturday 20 August 2016, you asked L and her sister if they would like to lie in bed with you and watch television. Your bed was on the couch in the living room. They agreed. There was not enough space on the couch for all three of you to lie comfortably so they took turns every ad break to lie with you.

[5] When it was L’s turn, she lay down in front of you under the blanket. You wrapped your arm around her and put your hand inside the front of her pyjamas and underwear and stroked your fingers up and down her vagina for several minutes until she said she wanted to go to the toilet. When L returned, her sister was in the bed. When the next ad break occurred, L accepted another turn and you again put your hand inside her pants and underwear and rubbed her vagina, this time for a shorter period as L got up to get ready for her Saturday morning activities.

Impact of your offending

[6] It is beyond doubt that sexual offending on young victims causes long term harm to them. I have read the victim impact statements from L’s parents. They have expressed their understandable concerns about the ongoing impact of this offending for L and their own feelings of not having protected L from it and the health

¹ Crimes Act 1961, s 132(3) (maximum penalty of 10 years’ imprisonment).

² Criminal Procedure Act 2011, s 114(2); Sentencing Act 2002, s 90.

consequences for them that comes from that. Of course the offending was not their fault.

Previous offending

[7] At the time of this offending you were 27 years old. You are now just over 29 years old. You have amassed 70 convictions for a range of largely low level but persistent offending involving cannabis possession, property and dishonesty offences, driving offending, assaulting police officers and non-compliance with court orders. Most relevantly, the offending includes sexual offending in 2007.

[8] This 2007 offending involved two incidents when you were 17 and 18 years old. The victim was a boy aged 9 who was living in the same household. The first incident involved you getting into the boy’s bed in the early hours of the morning and masturbating and performing oral sex on him. You also instructed him to masturbate you, which he did. Your asked him to perform oral sex on you but he refused to.

[9] The second incident took place several months later. You had been drinking alcohol with your mother and a neighbour. In the early hours of the morning you got into the boy’s bed and began masturbating him and had the boy masturbate you. You began to rub your erect penis on the boy’s lower back. You were interrupted by your mother and reported to the police. You left the address and were spoken to [by] the police nine days later. You admitted the offending and said you were extremely remorseful and said that [redacted]. I note that I am making a suppression order in relation to [redacted].

[10] For these incidents you pleaded guilty to and were convicted of one charge of unlawful sexual connection with a boy under 12 and one charge of doing an indecent act on a boy under 12. You were sentenced on 18 April 2008 to one year and nine months’ imprisonment for this offending.³ There were an array of other unrelated offending for which it seems you were sentenced at the same time, which added a further two months to the sentence. After serving half of that sentence, you were then

³ Mr Lochore was granted leave to apply for home detention but this did not eventuate.

placed on an Extended Supervision Order for a term of five and a half years commencing on 19 November 2008.

[11] Unfortunately, it was while subject to this order that a large proportion of your convictions occurred. Most of these were driving offences and breaches of the ESO order. Much of this offending resulted in community work but there were also short- term periods of imprisonment as well. This meant the ESO was extended. It expired on 25 July 2015.

[12] It is not suggested the ESO breaches involved conduct that raised concerns about further sexual offending. They seem to have been more about not turning up to appointments. One of them of them did involve associating with the boy who was the victim of the 2007 offending. However this occurred when you were visiting your mother and the boy was present at the house. The offending for which you appear today was committed 13 months after your ESO ended.

Letters from you and others

[13] I have read the letter you have written to the court. In that letter you express shame for your actions and a desire to get control back in your life. You say you are willing to engage in courses so you can live your life positively. You acknowledge your serious drug abuse problem.

[14] I have also read the letters of support for you. They attest to your good qualities, particularly when you are not on drugs and associating with negative influences.

Pre-sentence report

[15] The Department of Corrections’ pre-sentence report describes mixed messages from you about the offending. On the one hand you denied committing the offending and said you had pleaded guilty on the advice that you had a limited defence. You also denied that sexual arousal contributed to the offending. On the other hand you say you are extremely sorry for what the victim is going through.
[16] You acknowledge you have a long standing serious drug addiction problem. There are also concerns around your alcohol use but this is presently less of an issue than your drug problem. You acknowledge that when under the influence of drugs you have occasional fantasies around sexual involvement with children. There is further information about this in the summary of facts that is before me for this offending, which is supported by statements from your previous adult sexual partners, the evidence of which had been ruled as admissible evidence had this matter proceeded to trial. The summary of facts states that in 2013 to mid-2016 you repeatedly expressed sexual fantasies about children and desired to role play situations involving children. It also states that you expressed a desire to have a daughter to sexually abuse. You do not accept the detail of those statements and in the end I have decided I do not need to assess that detail given your acknowledgement of having had occasional sexual fantasies involving children. I have considered, if this evidence was proven at a disputed facts hearing, whether it would tip the balance in favour of preventive detention and I have concluded that, while the evidence is alarming, it does not in the end tip the balance to preventive detention. On that basis, the Crown does not seek to prove that at a disputed facts hearing. I also note that you say that you do not have such thoughts when you are sober, and by that I assume you also mean under the influence of drugs, and you also say that you definitely would not act on them.

[17] Returning then to your pre-sentence report, in the early days of your ESO, you were doing quite well. You did a panel beating course and you also had gainful employment doing building work. You were also attending the Wellstop programme but this was interrupted by periods of imprisonment for other offending. Towards the end of the ESO you completed psychological counselling aimed at reducing the likelihood of further sexual offending and were considered to have engaged quite well. It is said that you had difficulty coming to terms with the guilt and shame of sexual offending on the young boy in the 2007 offending and your ability to address this was affected by [redacted]. As I noted previously, [redacted] and in the pre-sentence report [redacted].

[18] Your inability to comply with your ESO conditions was not helped by your chaotic life style during this period. The report writer has supervised you for long periods. She says that at times you made genuine efforts to lead a more positive life
style. However your drug use, lack of impulse control and lack of pro-social support, your negative associations and poor problem solving impeded your progress.

[19] The report writer notes that you did not have a suitable address for an electronically monitored sentence if such a sentence was to be considered.

Health assessor reports

[20] A psychological report from Ms Brown and a psychiatric report of Dr Barry-
Walsh are before me.⁴

[21] The reports provide further information about your upbringing. In addition to [redacted], you were also diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at age 10. You were prescribed medication but only took this for a short time. You had difficulties at school and were eventually expelled at age 15 without any formal qualifications. You went to Weltec and attempted a plumbing course. You soon lost interest, took up sporadic employment and lived with your mother. It was around this time the 2007 sexual offending occurred.

[22] You described your sexual drive as increasing when under the influence of substances. You have had both casual and longer term relationships with females your own age. You consider you do not have a deviant sexual interest in pre-pubescent children and do not have ongoing deviant sexual fantasies.

[23] Ms Brown says that you have not had treatment to address [redacted] and it is possible that this has been a barrier to you fully engaging in the past. You have said you want to participate in treatment to understand why you have sexually re-offended and to address [redacted], as well as treatment to address your substance abuse. Ms Brown considers your early experiences have contributed to your high levels of emotional dysregulation and distress.

[24] She considers your offending is driven by a high sexual drive combined with substance abuse and impulsivity rather than an entrenched deviant interest in pre-

⁴ Pursuant to the Sentencing Act, s 88.

pubescent children. On the ASRS-R you are in a group that has been classified as at high risk of further offending. On the VRS:SO you are also assessed as being in the high risk category. Ms Brown considers that if you can successfully complete recommended treatment this may assist to reduce your risk.

[25] Dr Barry-Walsh confirms the diagnosis of ADHD and the absence of treatment of this disorder. He says that children with ADHD go into adult life with problems. These are often in the realm of self-regulation and impulsivity. It is also associated with an increase in substance abuse and the development of secondary personality difficulties and offending. He considers this is consistent with your offending. He considers your sexual offending is likely related to [redacted] and worsened by ADHD.

[26] It is Dr Barry-Walsh’s view that there are a number of interventions that could assist with altering your risk of reoffending. These include assessment and potential treatment of ADHD, assessing your substance abuse and treatment aimed at identifying the relationship between [redacted] and your offending. He considers you should be assessed after sentencing for a Sexual Offender Treatment Programme. He says that if you respond to treatment for ADHD this may improve your self-regulation and impulsivity and, in turn, other therapeutic endeavours.

[27] I also note that, in his report, he has said that he will liaise with his colleagues to ensure they are aware of this and convey to them his opinions regarding you and the treatment for you.

Sentence approach

[28] In light of the information before the Court, the Crown submits preventive detention is appropriate. Your lawyer has said that preventive detention is not appropriate and the purposes and principles of sentencing can be met by a finite or determinate sentence. As I said at the outset, I have decided that preventive detention is not appropriate and that your sentence will be a finite one.

Finite sentence

[29] As to that finite sentence, the first part requires me to establish a starting point. The Crown says I should adopt a starting point between two and two and a half years’ imprisonment. It says the aggravating elements are the skin-on-skin contact with the child victim’s genitalia; an element of pre-meditation; the breach of trust it involved; and the age and vulnerability of the victim. Your lawyer does not disagree with this and nor do I.

[30] In my view the two years and six months is too high relative to other comparable cases when the offending is assessed on its own.⁵ I will take a starting point in the middle of that range. So my starting point is two years and three months imprisonment.

[31] Counsel are agreed that the starting point should be uplifted because of your previous sexual offending. The Crown contends an uplift of 12 months is appropriate. Your counsel submits this is disproportionate to the sentence for the 2007 offending (which was, as I have mentioned, one year and nine months’ imprisonment) and the starting point for this offending. I agree. In my view an uplift of six months is appropriate. There is a particular need for individual deterrence in your case and for public protection because you have sexually offended in a similar way before and because you have reoffended despite the opportunities available to you to address the causes of your offending following that earlier offending.⁶

[32] Counsel are agreed that the relevant personal mitigating factor for you for which you should be given a credit is your guilty plea. As this was entered late, on the morning your trial was to commence, I agree with them that ten per cent is the appropriate discount. This means I reach a finite sentence of two years and six months’ imprisonment.

5. See, for example: MacDonald v R [2017] NZCA 432; Fisher v Police [2014] NZHC 2189; R v Kenny [2013] NZHC 2787; and R v M (CA387/2009) [2009] NZCA 456.
6. I regard R v Kenny, above n 5, as broadly comparable. See also R v Leitch [1998] 1 NZLR 420, (1997) 15 CRNZ 321, (1997) CA195/97.

[33] I consider a minimum period of imprisonment of two thirds of that sentence is appropriate for individual deterrence and protection of the community purposes. I note that that was the minimum period sought by the Crown and was not submitted to be inappropriate on your behalf in view of those matters.

Preventive detention

[34] Turning then to a sentence of preventive detention, I am now going to explain the reasoning I have taken in relation to that. I note first its purpose is to protect the community from those who pose a significant and ongoing risk to the safety of its members.⁷ A sentence of preventive detention can be considered by me because of your age; because you have committed qualifying offending; and because of the risk that you do present of committing another sexual offence upon your release from a finite sentence for this offending.⁸

[35] In deciding whether it is appropriate to impose that sentence I am required to take into account: any pattern of serious offending in your history; the seriousness of the harm to the community caused by your offending; information indicating a tendency to commit serious offences in future; the absence of, or failure of, efforts by you to address the cause or causes of your offending; and the idea that a lengthy prison sentence is to be preferred if this will be adequate for the protection of society.⁹

[36] The pattern of serious offending disclosed by your history does not point strongly in favour of preventive detention. Your offending in 2007, although broadly similar to the present offending, was almost a decade before the current offending. It was limited in that it involved two instances, offending of short duration and was opportunistic in nature. The present offending does not represent any serious escalation in the nature of the sexual offending.

[37] Any sexual offending against children involves serious harm. That is beyond dispute. That said, and without minimising the harm you have caused to your victims and their families, the nature of your offending is at the lower end of seriousness of

⁷ Sentencing Act 2002, s 87.

⁸ Section 87(2)(a),(b) and (c).

⁹ Section 87(4).

harm relative to other sexual offending as is demonstrated by the length of the appropriate finite sentence.

[38] The health reports I have discussed, particularly that of Ms Brown, indicate you are a high risk of committing sexual offending in the future. She says potential victims are likely to be prepubescent male or female victims known to you, it is likely to be opportunistic in nature and may occur if you lapse into substance abuse, experience strong feelings of abandonment, loneliness or rejection, or experience a high sexual drive. However she does not consider you to have entrenched deviant interest in children. She says that treatment may assist to reduce your risk of sexual offending. Dr Barry-Walsh also considers there are a range of avenues for intervention and this may assist to reduce your risk. I note and have taken into account your expressed sexual fantasies involving children but I do not consider it appropriate to place undue weight on them such as to tip the balance into a sentence of preventive detention. In saying that, what is important is whether you act on them. Your limited offending to date suggests that you largely have not. Moreover, as Dr Barry-Walsh has said, there is likely to be a significant relationship between [redacted] and your offending. There are avenues available which may assist in addressing this. Your sense of shame for your offending indicates to me that you wish to do so.

[39] You have had opportunities to address your offending already. The Crown submits your assertions of willingness to engage in treatment must be assessed in light of your previous lack of engagement and the statements you have made to the writers of the reports before me which indicate you do not fully accept your offending. It can of course be difficult to fully accept offending of this kind because it is shameful. As Dr Barry-Walsh puts it, you have downplayed it rather than displaying extreme minimisation or denial. You have taken responsibility for this offending and your previous offending through your guilty pleas and they are to your credit. Your ability to fully respond to previous opportunities was hampered by your drug addiction and personality difficulties with untreated ADHD and your associated chaotic lifestyle. Avenues of treatment will be available to you during your sentence and subsequent to it.
[40] Lastly I take into account that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[41] I am satisfied in light of these considerations that a sentence of preventive detention is not necessary. At this stage I consider it is premature and disproportionate to sentence you to preventive detention, given your limited history of sexual offending, its nature at the lower end of the scale for sexual offending, and the potential avenues for reducing the risk of sexual offending. I note too that at the end of your finite sentence there is the distinct possibility of a further ESO being made against you.¹⁰ The Crown has made submissions that it is of concern that if an ESO application were sought, it might be opposed. This is partly on the basis of comments you made to Dr Barry-Walsh about feeling as though you should have opposed the original ESO order. I note that that ESO order was appropriate at the time it was imposed. I also recommend to the Department of Corrections that it consider making an application for an extended supervision order, which could then be put in place on your release. This would, in my view, contain a number of important protections for the community after your release. It may assist you in rehabilitating and ensuring you stay on track as you wish to do. So rather than being detrimental to you, it should be of assistance to you as well as to the community.

[42] Finally, I note that I have compared your case with other comparable cases and am satisfied that preventive detention is not appropriate at this stage.¹¹

Conclusion

[43] Mr Lochore I am going to ask you to stand now because this is the time that I formally pass sentence on you. You are sentenced to two years and six months’ imprisonment. A minimum period of imprisonment of two thirds of that sentence is imposed. You are currently subject to a sentence for other offending. This sentence that I am passing is cumulative on that sentence.

¹⁰ R v Parahi [2005] 3 NZLR 356 (CA); and R v Mist [2005] 2 NZLR 791 (CA).

11. I regarded R v Henson [2016] NZHC 1543 and R v Ranga [2014] NZHC 2583 as being more comparable relative to R v Paki [2012] NZHC 3494 or R v MacDonald, above n 5.

[44] You will be automatically placed on a register under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 for committing a sexual offence against a child under 16.

[45] That is all. Stand down.

Addendum

[46] The Department of Corrections has since advised that Mr Lochore completed his sentence and was released from that sentence on 2 October 2018. Therefore the sentence I have passed today is not a cumulative one, despite what I said at [43].


Mallon J