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R v Harris [2018] NZHC 2984 (14 November 2018)

Last Updated: 29 November 2018

SENTENCING NOTES OF DUNNINGHAM J

[1] Mr Harris you are here for sentence today having pleaded guilty to two charges of doing an indecent act on a child and one of assault on a child.

[2] As you know, the District Court declined jurisdiction because it considered that you were eligible for preventive detention. The key issue for me today is to decide whether you should receive a finite sentence or whether your offending history and circumstances warrant a sentence of preventive detention.

R v HARRIS [2018] NZHC 2984 [14 November 2018]

The offending

[3] The first charge of sexual conduct with a child relates to the events which occurred on the afternoon of 5 February 2017. The victim was a seven year old boy who was playing alone by the stream in Waimokihi Place in Christchurch. You came out from behind a bush and approached the victim. You asked the victim to hold your bike while you urinated. You then knelt on your knees and got your penis out in front of the victim. You also asked the victim to show you his penis. You then ejaculated in front of the victim and told him not to tell anyone before leaving the area on your bike.

[4] The second charge of doing an indecent act, along with the assault charge occurred in the early afternoon of 22 April 2018. You took a bus from the Christchurch Central Bus Exchange and the 11 year old victim was in the same bus. When the victim got off the bus at Mathers Road, you also left the bus and followed. You then caught up with the victim, near an empty property at the corner of Hoon Hay Road and Mathers Road. You asked the victim to hold your backpack while you urinated outside. You then went down a secluded alleyway between the house and the garage on the property and called the victim to come over, which he did. You were holding your penis and you started masturbating in front of the victim. When the victim asked if he could leave, you told him “not yet”. The victim then ran off and you chased him, grabbed him and took him back down the alleyway. That area was completely out of view from the road with nowhere for the victim to get away. You only allowed the victim to walk away when he said he wanted to go home and started crying. However, you followed the victim all the way to his house before leaving the area.

[5] I have read victim impact statements from the parents of each victim. Your actions have had a profound effect on both children. The seven year old was put on anti-depressants. He would not sleep in his own room, nor would he play outside. He has begun wetting the bed, having bursts of anger and his confidence has diminished. His mother understandably speaks of her son’s innocence being taken away.
[6] Similarly, the father of the 11 year old victim describes his son as now fearful of and sceptical of strangers and being particularly scared to catch the bus now. He hopes that his son can drive the memory of this offence from his mind.

[7] The primary reason that this offending is now in the High Court is because it comprises the fourth and fifth time in which you have offended against children in this way.

[8] In December 2005, when you were living in Australia, you grabbed an 11 year old girl while she was walking home and pulled her into the front yard of a property. You then dragged her down the side of a building and engaged in a brief exchange with her where you learnt her name and age. You refused to let her go at which time she started to scream and you put your hand on the victim’s mouth. You then pushed her to the ground, thrusting your crotch against her. It was only when a witness saw what was going on and yelled at you that you pulled your pants up and ran away. You were only charged with this offence when DNA from your semen which was left at the scene was matched following the next set of offending.

[9] The second offence occurred in December 2006. It was against a five year old female. She was playing in the schoolyard with her friends during her lunchbreak and a ball was kicked over a paling fence into a property where you were standing in the yard. She crawled under the fence to get the ball back. You grabbed her around the waist and pulled down her shorts and underwear. You then pulled down your own pants and exposed your penis and pressed it against her vagina. She called out “don’t, let me go” and by this time her friends on the other side of the fence were able to observe what was happening. When one of them called out “you’ll go to jail” you released your grip on the victim and she was able to pull her pants up. However, you then masturbated in front of the girls, ejaculating onto a wooden paling fence.

[10] In 2016, you were returned to New Zealand under the Australian Immigration policy of returning non-citizens, who have seriously offended, to their country of origin. When you arrived back in New Zealand you were subject to the Returning Offenders (Management and Information) Act 2015. Conditions were imposed on you including that you could not enter or loiter around any public library, school
playground or other area where children under the age of 16 may congregate. However, on the afternoon, of 16 June 2017, you went to Richmond Park in Christchurch on your push bike. You approached three young girls aged between 9 and 10 and asked them to hold your bike while you urinated. You then stood in full view of the girls holding your genitals and asking one of them to come closer. The girls ran and then hid from you before going home.

[11] You were sentenced for that offence in August 2017 to 12 months’ imprisonment. You were also made subject to post-release conditions, including GPS monitoring. However, despite that you committed the offences that you are now being sentenced for.

Calculation of a finite sentence

[12] What I am going to do now is first consider what finite sentence would be appropriate for your offending. I will then have regard to whether a sentence of preventive detention should be imposed instead. I will also have regard to the purposes and principles of the Sentencing Act 2002. These include the need to protect the community from this type of offending, to denounce and to deter it, and to provide for your rehabilitation and to ensure your successful reintegration into the community.

[13] Looking first at the finite sentence, the Crown has pointed out there are a number of aggravating features of your offending. You appear to have watched or followed both the victims before offending against them. The boys were both vulnerable because of their age, the fact that they were on their own, and because they were in or they were taken to a secluded area. The victim impact reports highlight that there has been clear harm to the victims and their families. In terms of the seriousness of the assaults, the Crown accepts that you did not initially touch either victim, however, you did ask the seven year old to show you his penis and you told the 11 year old he could not leave. When he tried to run away, you grabbed him and took him down the secluded alley. The Crown submits that taking into account that there were two victims, a starting point of 18 to 20 months’ imprisonment would be available. This should then be uplifted for your previous convictions and to reflect the significant public safety concerns which arise in this case. The only mitigating feature
is, of course, your early guilty plea for which the Crown accepts that full credit is appropriate.

[14] Your lawyer accepts that a starting point of 18 to 20 months’ imprisonment is appropriate and that a significant uplift would be appropriate to reflect your previous convictions. He also notes that you are entitled to the full credit for your guilty plea. However, your lawyer also notes that, looked at in isolation, your offending might result in an end sentence that is less than two years. This would mean that you would be entitled to be released after serving half that sentence and the Court would have no jurisdiction to impose a minimum period of imprisonment. Mr Matthews cautions me against deciding therefore to impose a sentence of preventive detention, pointing out that the Court can give a substantial uplift to your sentence to reflect your previous convictions and to reflect the heightened need to protect the public. He referred me to a decision in Bell,¹ where the Court of Appeal upheld a decision of Collins J.² That decision said that when the Court considers that a finite sentence arrived at in accordance with the usual principles would not be adequate to protect the public, it is permissible to impose a finite term which would be of greater severity than normal.

[15] This was a matter that I asked the lawyers to provide further submissions on, and they have. I was concerned that the finite sentence I would normally impose would not give you the opportunity to engage in meaningful therapy in prison. Ms Bicknell-Young has advised that while the Kia Marama core treatment programme for sex offenders takes nine months to complete, the total programme takes 18 months to complete. Furthermore, enrolment in that programme is understandably prioritised to those who are motivated to complete it. The alternative is to refer an inmate to individual psychological treatment, but that treatment would not be provided indefinitely to someone who was not prepared to willingly engage in it. The Crown therefore says that you would need to be sentenced to at least three to three and a half years’ imprisonment in order for you to have time to complete a programme such as the Kia Marama programme, and that assumes that you are motivated to participate.

¹ Bell v R [2017] NZCA 90.

² R v Bell [2016] NZHC 51, citing R v Leitch [1998] 1 NZLR 420 (CA).

[16] Your lawyer accepts that I am entitled to impose an uplift for public protection purposes and to impose a minimum non-parole period which would allow you to undergo further treatment, such as the Kia Marama programme or individualised treatment. Your lawyer points out that you have demonstrated a preparedness to engage with any treatment and he urges me to consider a lengthy finite sentence over preventive detention.

[17] Having considered these submissions and the cases that I have been referred to, I consider the appropriate starting point for a finite sentence if one was to be imposed would be 20 months. I would then uplift that by 12 months to reflect your previous convictions. I would then uplift it by a further 16 months to meet that public protection purpose by giving sufficient time to allow you to complete a rehabilitative programme. That would be discounted by 25 per cent for your earlier guilty plea and so the finite sentence imposed would be three years.

A sentence of preventive detention

[18] I turn now to the question of preventive detention. The purpose of such a sentence is to protect the community from those who pose a significant and ongoing risk.³ To impose it I have to be satisfied that there is a significant and ongoing risk of serious harm.

[19] I have to take into account various factors. These include any pattern of serious offending disclosed by your history; the seriousness of the harm to the community; information I have indicating a tendency to commit serious offences in the future; the absence, or failure by you to address the cause or causes of your offending; and the principle that a lengthy determinate sentence is preferable if it provides adequate protection.

[20] To assist me in that task I have had the two health assessors’ reports. One is from Dr Simone McLeavey, a consultant psychiatrist. She explains that, of course, she cannot give an opinion on your specific likelihood of reoffending. However, she points out that you have a combination of risk factors that correlate with a potential

³ Sentencing Act 2002, s 87(1).

increased risk of sexual violence. She says you should be considered to present at least a moderate risk of further sexual offending and, without intervention, you are likely to remain at a high risk of re-offending in a sexual manner. This would most likely occur when you were encountering a young or vulnerable male or female victim in an isolated environment when you yourself were feeling stressed or overwhelmed. She considers that specific work addressing your sexual offending would be of benefit during your sentence.

[21] The other report was prepared by Sarah Head, a registered clinical psychologist with the Department of Corrections. She concludes that based on an assessment of static and dynamic factors, you are considered to be at high risk of sexually re-offending. Such offending is likely to be precipitated by a low mood, feeling overwhelmed, poor problem-solving and distorted and possibly paranoid thinking. It is also likely to be opportunistic in nature as your offending so far has been. She notes that while you have had some treatment when you were imprisoned in Australia, that earlier programme centred primarily on your unstable lifestyle, including your significant drug abuse history. She considers that the treatment you have had to date has not adequately addressed deviant sexual interest and problematic thinking, in order to begin to mitigate your risk of further offending.

[22] Both those reports outline your troubled upbringing after the death of your grandmother who was initially your primary caregiver. It seems that you disengaged with the education system very early on and you had effectively left school by the time you were aged 10 or 11. You moved to Australia and by the age of 10 or 11 you were living on the streets and involved in gangs and crime. You have struggled with both mental health issues and with substance abuse since your adolescence. Given that information, I now turn to consider whether preventive detention is appropriate here.

Is a pattern of serious offending disclosed?

[23] In terms of whether there is a pattern of serious offending, you have now committed five sexual offences against children. The gap between 2007 and 2017 was largely accounted for by the fact you were in prison for those 10 years. I accept, though, as your lawyer says, that this sentencing represents only the third time you
have appeared in Court for a sentencing in respect of sexual matters and, furthermore, the first offence you were sentenced for when you returned to New Zealand was not a qualifying offence for the purpose of imposing preventive detention.

[24] Your lawyer also points out, and I accept, that while your offending is serious, and has had lasting consequences for the victims, it is not of the gravity of sexual violation offences. Thus, there is in my view, a pattern of serious offending, although it is not at the highest end of persistence and seriousness.

The seriousness of harm caused to the community by the offending

[25] In terms of the harm to the community I have already observed that your offending has harmed the victims. Furthermore, the brazenness of the offending which has occurred in or near places where children should feel safe, such as at schools or in playgrounds, is of concern to the community. This offending forces other people to be cautious about giving their children the freedom to go to public places unattended. It is real harm, although again not at the highest end of sexual offending.

Information indicating a tendency to commit serious offences in the future

[26] In terms of the information I have about your tendency to commit these offences in the future, it is clear that your history of offending and risk factors point to a high risk of further such offending. While I accept the offending has not escalated, it is concerning that despite the oversight you have had since you have returned to New Zealand, you have been able to commit these offences involving children on three further occasions.

Efforts to address the causes of the offending

[27] In terms of your efforts to address the cause or causes of your offending, I note that you have completed an intensive therapy programme in Australia for men who have sexually abused adults or children. However, as the Crown acknowledges, that focused on your unstable lifestyle and your significant drug abuse history, rather than on the role deviant sexual interest and distorted thinking played in your offending. Furthermore, although when you were sentenced in August 2017 you were required to
engage in a rehabilitative assessment and any subsequent recommended treatment, it does not appear as though you ever in fact received or were offered any treatment.

[28] It seems that following your recent offending you have shifted from initially being somewhat resistant to attending a treatment programme, to now being willing to do so. I am therefore not at the point where I can say that your rehabilitative potential has been exhausted.

Principle that a lengthy determinate sentence to be preferred

[29] Dealing finally with the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society, I accept that you will remain at high risk unless you undertake treatment successfully and that the kind of finite sentence I would normally impose for the offences could well mean you return to offending at the end of the sentence as you have done twice in the past. Furthermore, without treatment the protective conditions of even an extended supervision order might not be sufficient to provide protection to the public given your track record on returning to New Zealand.

Decision

[30] In my view, the matter is finely balanced. However, the key factors in my decision are:

(a) the offending, while it is damaging, is not at the most serious end;

(b) you still have unmet rehabilitative needs and cannot yet be said to be a lost cause in that regard; and

(c) compared even with the relatively severe finite sentence I would propose, a sentence of preventive detention would be disproportionately long.

[31] I also take into account the fact that this is only the second time you have appeared in Court on offences which would trigger consideration of preventive
detention and, of course, it is the first time you have appeared in a New Zealand Court on such offences. While I do not consider there is an obligation to receive a “final warning”, I nevertheless consider that preventive detention for indecencies as opposed to sexual violation is likely to be exceptional. It would normally turn on there being “persistent, knowing behaviour”, despite having received warnings.⁴

[32] Mr Harris would you now please stand.

[33] On each of the two charges of doing an indecent act on a child I sentence you to three years’ prison with a minimum period of imprisonment of two years. On the charge of assault, I sentence you to three months’ imprisonment to be served concurrently.

[34] Given your convictions for doing an indecent act on a child you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice which contains a list of these ‘serious violent offences’.

1. If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

2. If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.

[35] Mr Harris, please stand down.

Solicitors:

Raymond Donnelly & Co., Christchurch Public Defence Service, Christchurch

⁴ R v Parahi [2005] 3 NZLR 356 (CA) at [86].