ROSEWARNE v R [2015] NZCA 537

ROSEWARNE v R [2015] NZCA 537 [13 November 2015]NOTE: SUBJECT TO THE POSITION NOTED IN FOOTNOTE 2,PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY COMPLAINANTS UNDER THEAGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINALPROCEDURE ACT 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA96/2015[2015] NZCA 537BETWEEN ALAN NEIL ROSEWARNEAppellantAND THE QUEENRespondentHearing: 14 October 2015Court: Ellen France P, Heath and Collins JJCounsel: R B Crowley and L Scott for AppellantS K Barr and J Slankard for RespondentJudgment: 13 November 2015 at 10:00 amJUDGMENT OF THE COURTA An extension of time to file the notice of appeal is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Ellen France P)Table of ContentsPara NoIntroduction [1]Background [2]Charges relating to 1990–2007 [4]Charges relating to the period from 2008 [12]The sentencing remarks [17]The appeal [32]Discussion [36]The guilty plea [38]The likelihood of the appellant entering into another relationship [42]The earlier rehabilitation attempts [53]Result [55]Introduction[1] The appellant, Alan Rosewarne, was sentenced to preventive detention with a minimum period of imprisonment (MPI) of 10 years after pleading guilty to numerous charges of violent and sexual offending.1 He appeals against sentence on the basis a finite term together with an MPI was sufficient to meet any future risk.Background[2] The appellant's offending can be divided into two groups. The first group ofcharges cover the period from 1990 to 2007. Over that time, the appellant was in a relationship with K. He lived with her and their four children including S and E.2The second group of charges concerns the period from early 2008 to October 2009, by which time the appellant was in a relationship with DK and living with her and her child, Y.[3] We summarise the facts in relation to each group in turn.Charges relating to 1990–2007[4] The facts giving rise to the first group of charges are summarised by the sentencing Judge, Thomas J.3 The Judge noted that when the appellant was aged 24, he met K who was then 15 years old. Justice Thomas recorded that by the time K1 R v Rosewarne [2014] NZHC 3198 [sentencing remarks].2 K and S waived name suppression but E did not so we have anonymised the names of K and S to prevent identification of E.3 Sentencing remarks, above n 1, at [5]–[63].moved in with the appellant in 1990, he "had emotionally taken control of her and had alienated her from her family and friends".4 As the Judge noted, the appellant"began to subject [K] to frequent and devastating emotional, physical and sexualabuse, which escalated as time passed".5[5] In relation to K, the first charge was a representative charge of injuring with intent to injure. This related to the frequent beating to which she was subjected if she displeased the appellant. The appellant threw her into walls, punched her repeatedly about her face and body and pulled out chunks of her hair. K received black eyes, on occasions her nose was broken, and she had bruises on her face and body.[6] The second charge concerning the appellant's conduct towards K was arepresentative charge of sexual violation by rape. This encompassed what the Judgedescribed as "forceful and painful sexual intercourse for lengthy periods of time".6 There were associated indignities and cruelty, for example, locking out their 20 month old daughter who sought vainly to enter the room.[7] The third charge was a representative charge of injuring with intent to cause grievous bodily harm. The appellant beat K severely often using household items as weapons. This charge encompassed beatings whilst K was pregnant and the appellant jumping on her with both feet if she fell to the ground.[8] Fourth, there was a representative charge of sexual violation by unlawful sexual connection. This involved regular forced anal sex.[9] Another incident in November 1997, when K tried to leave the relationship, gave rise to charges of threatening to kill and of intentionally causing grievous bodily harm with intent to cause grievous bodily harm.[10] The final set of charges concerning K comprised three counts of intentionally causing grievous bodily harm. The events giving rise to these charges took place4 At [6].5 At [6].6 At [9].between 1 January 2007 and 27 February 2007. These charges reflect an escalation of the violence on K and included severe beatings to her head.[11] Over the period of K's relationship with the appellant there were alsoincidents giving rise to representative charges of cruelty to a child involving their sons, S and E. S was regularly beaten about the head and buttocks. As a newborn, E was thrown around in his car seat.Charges relating to the period from 2008[12] The second set of charges concerns DK and her child, Y. After release from prison, between 2008 and 2009, the appellant began a relationship with DK. Overtheir 20 month relationship, as Thomas J said, DK "was subjected to frequent emotional, physical, and sexual abuse".7[13] The first of the six charges relating to DK was a representative charge of administering Class B drugs. The Judge said DK had never taken drugs beforehand and over the course of their relationship the appellant injected her with a cocktail of drugs. He controlled what DK took and administered the drugs to her. Often she did not know exactly what was being given to her.[14] The next charge relating to DK was a representative charge of injuring with intent to injure. This reflected regular beatings including with household objects. A single count of intentionally causing grievous bodily harm reflected an incident in September 2008. The appellant had consumed methamphetamine, became enraged, grabbed DK by her hair and dragged her through the house repeatedly punching her in the head. She was kicked and squeezed by the neck. Having got away, she was caught again, pushed to the floor and beaten.[15] A representative charge of sexual violation by rape reflected numerous occasions of sex after the appellant administered drugs to DK. She was often left in pain after these incidents. DK would also often regain consciousness to find the appellant inserting bottles into her vagina. These incidents were encompassed in a7 At [37].representative charge of sexual violation by unlawful sexual connection. Another representative charge of sexual violation by unlawful sexual connection related to forced oral sex.[16] Finally, over this period, there was a representative charge of cruelty to a child involving Y. The relevant incidents included throwing a milk bottle which hit Y in the face and locking the child in the car without food or water.The sentencing remarks[17] In considering the length of the appropriate determinate sentence Thomas Jtook a global starting point for the sexual offending of 18 years' imprisonment. Interms of an uplift from that point for the other offending, the Judge treated the charges of intentionally causing grievous bodily harm involving K and DK as the lead offences. Thomas J considered an end sentence of around 15 years'imprisonment would be appropriate for that offending alone. Taking into account totality she ascribed an uplift of four years for the other offending making an overallstarting point of 22 years' imprisonment.[18] Thomas J noted the appellant had entered his guilty pleas once K had begun her evidence in chief. However, in his interviews with the mental health assessors and the pre-sentence report writer the appellant expressed no remorse and took no responsibility for the offending. The Judge took into account the submission madeon the appellant's behalf that his denial of the offending to the report writers may bein part "a matter of self-preservation". She concluded there should be a 10 per cent discount for the guilty plea. On this basis, the appropriate determinate sentencewould be around 19 years and 9 months' imprisonment with an MPI of 10 years.[19] The Judge then addressed the considerations applicable in deciding whether to impose a sentence of preventive detention as set out in s 87(4) of the Sentencing Act 2002.[20] Dealing first with any pattern of serious offending disclosed by the appellant's history, the Judge found the history "clearly discloses a pattern of serious,long-term violence and sexual offending against those with whom [the appellant is]in an intimate relationship".8[21] As to the second factor, the seriousness of the harm to the community caused by the offending, the Judge concluded that the seriousness of the harm in this casewas "extreme".9 The Judge noted the victims and those close to them will live withthe consequences of the appellant's actions for the remainder of their lives.10[22] The Judge then addressed the third factor, that is, any information indicating the tendency to commit serious offences in the future. On this aspect, the Judge had three reports. The first of these was from Dr Lehany, a psychiatrist; the second was from Ms Bellve-Wack, a clinical psychologist; and finally there was a pre-sentence report from the probation officer.[23] Thomas J observed Dr Lehany's conclusion was that there was no evidencethe appellant had a psychotic illness or that his behaviour was caused by mental illness. The appellant had been diagnosed with anti-social personality disorder andDr Lehany considered he revealed "traits that could be described as psychopathic [that] would increase the risk of reoffending".11[24] The Judge noted Dr Lehany's assessment that should the appellant establish further intimate relationships "he would become violent within them in a manner consistent with his previous behaviour".12 Dr Lehany also said it was most likely that further sexual violence would again occur in a context of an intimate relationship. Thomas J stated:13He suggested that the Court should consider the likelihood of [the appellant] entering into intimate relationships again, in which case the risk of reoffending would be high. If [the appellant] did not enter into intimate relationships again, he considered that the likelihood of this type of offending would be lower.8 Sentencing remarks, above n 1, at [105].9 At [106].10 At [106].11 At [108].12 At [109] summarising the report of Dr Lehany.13 At [110].[25] The Judge noted Ms Bellve-Wack's assessment was that the appellant wassignificantly above the cut-off point for psychopathy. Ms Bellve-Wack said the likelihood of the appellant committing similar offences in the future was high,particularly in light of the appellant's refusal to accept responsibility and his lack ofmotivation to address contributing factors.[26] The Judge noted the probation officer could not complete his interview withthe appellant because of the appellant's aggressive behaviour. That report said the departmental risk assessment calculated the appellant's risk of reoffending as "leaning towards high".14[27] Turning then to the fourth factor, that is the absence of, or failure of, efforts by the appellant to address the causes of the offending, the Judge acknowledgedthese were the appellant's first convictions for serious sexual offending and recordedthe submission on his behalf that he was yet to have the benefit of efforts atrehabilitation. The Judge said the appellant had a "somewhat patchy history of treatment for some of the underlying causes" of the offending.15[28] Thomas J set out that history in these terms:[114] In 1996, having been convicted for indecent exposure, [the appellant was] attending mandatory counselling sessions to deal with the sexual abuse [he] suffered at age five or six by [his] older sister. At around this time [the appellant was] seen by a psychologist. [The appellant] made it clear to him that [he] had no intentions of moderating [his] substance misuse, so the psychologist felt there was no benefit in setting up further appointments.[115] In 1996, [the appellant was] admitted to hospital for ten days. [He was] diagnosed with mild depression, antisocial personality disorder and cannabis dependence. At the time [he] claimed to want to turn [his] life around. [He was] referred for outpatient follow up but did not engage.[116] In November 2001 [the appellant] had been ordered to attend alcohol and other drug counselling, and anger management. In early 2007, after[his] break up with [K], [he] voluntarily admitted [himself] to Hospitalfor around three weeks. [He was] diagnosed with morphine dependence. It was noted that [his] mental state had not changed significantly and that [he] had partial insight. [He was] discharged to the community team for alcohol and other drug counselling. [The appellant] again sought voluntary psychiatric admission for three days in May 2007. [He] said [he] had14 At [112].15 At [113].experienced suicidal and homicidal thoughts directed towards [K]. [He was] again discharged to the community team for alcohol and other drug follow up.[117] On 25 May 2007 [the appellant was] seen by a consultant psychiatrist. He diagnosed no depression or psychotic symptoms. He stated that [the appellant] had a history of malingering signs and symptoms of mental illness to achieve hospitalisation with a view to evade the justice system. [The appellant was] seen again by a psychologist in May 2011, and in November 2011 [he was] recommended for methadone maintenance, which commenced in 2012 and continues to this day.[29] The Judge's assessment was that the reports showed a lack of motivation onthe appellant's part to address the causes of the offending. And, although there was aguilty plea, the appellant now denied having committed the offences, having denied culpability to all three report writers. The Judge said this "complete denial of responsibility" showed that the appellant had no insight into his offending or the riskhe posed.16[30] The Judge then turned to the final consideration under s 87(4), that is, the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. Noting that the appellant would not be eligible for an extended supervision order on release, the Judge went on to state that she was satisfied a finite sentence would not provide adequate protection. The conclusion was put in this way:17[T]he risk levels are so high, and [the appellant's] insight into [his] offendingso low, that there is a real possibility that at the expiration of [his] sentence [he] would enter into another relationship and repeat [his] pattern of offending. I am mindful that this sort of offending is insidious and pernicious. It happens behind closed doors and the victims become psychologically trapped, so that the offending can continue for lengthy periods without detection. I am also concerned that [his] offending escalated from [K] to [DK], in that [his] offending against [DK] involved the administration of drugs which increased her vulnerability and dependence on [the appellant].[31] Finally, the Judge said she took into account that preventive detention is not asentence of last resort and does, "in itself provide a real incentive for [the appellant] to seek the help" so desperately needed.18 The sentence of preventive detention with16 At [119].17 At [122].18 At [123].an MPI of 10 years was accordingly imposed. The sentences imposed are set out in full as an appendix to this judgment.The appeal[32] Mr Crowley for the appellant developed his submission that a finite determinate sentence with an MPI would meet the risk posed by the appellant. Mr Crowley said Thomas J placed too much weight on three factors and in so doing focused unduly on the extent of past offending rather than the likelihood of offending in the future.[33] The first of the factors relied on is the appellant's denial of the offending tothe two health assessors and to the pre-sentence report writer. Mr Crowley submits that the entry of the guilty plea, which the appellant did himself, reflected a"watershed" moment for the appellant and should have been the dominant factor.[34] The second factor referred to is the likelihood of the appellant entering into another relationship. Mr Crowley submits the material before the Court shows the appellant can function without being in a relationship and without offending. He says the best assessment of the prospects in this regard is found in the appellant'sactions after his release from prison in May 2010. He emphasises that the appellantremains on the methadone programme. Mr Crowley also relies on the appellant'sage on release. He is presently 50 years old.[35] The final factor is the appellant's earlier rehabilitation attempts. Mr Crowleysubmits these exercises were of a different ilk than what now faces the appellant.Discussion[36] It is plain that the first two factors in s 87(4), that is whether there is a pattern of serious offending and the seriousness of the harm to the community, are met. The charges involve serious violent offending over a lengthy period which, not surprisingly, has had a serious impact. The consequences for the victims will be long-term.[37] The matters raised by the appellant relate to the assessment of future risk. These matters engage the remaining three factors in s 87(4), namely, information indicating the tendency to commit serious offences in the future; the absence of, or failure of, efforts by the appellant to address the causes of reoffending; and the principle that a lengthy determinate sentence is preferable if this provides adequate protection for the community. For the reasons that follow, our assessment is that theJudge's evaluation of these factors was right and the matters raised by the appellantdo not alter that assessment.The guilty plea[38] We take first the impact of the appellant's guilty plea. The Judge acknowledged the appellant's guilty plea and took that into account. She also acknowledged that his denial may be in part a matter of self-preservation. The plea was important but when it is considered against the nature and consistency of theappellant's response to the report writers, the Judge was right to place the weight she did on that response.[39] It is sufficient to refer to the accounts given by the appellant to Dr Lehany and Ms Bellve-Wack. Dr Lehany recorded:[The appellant] denied having committed the offences for which he has been convicted. What he told me was that his first partner had "lied heaps" and hedenied the offences. He said that his two ex-partners had conspired to convict him and that they had recruited others to lie and ensure he was convicted. He said he admits to hitting his first partner on one occasion, butdenies the offences for which he has been convicted. He essentiallystated that he was adamant he had not committed the offences but had only [pleaded] guilty on the advice of his lawyer. I understand from [the appellant] that his partner had been giving oral evidence in Court for around two hours before he went and changed his plea to guilty. He also stated thaton the occasions which he admitted he had hit his partners "they pushed me to the stage I lost my temper".[40] Ms Bellve-Wack said throughout her interview with him the appellant"denied any culpability for any of the charges to which he had [pleaded] guilty". He blamed his lawyer stating "he talked me into pleading guilty" and said his lawyerhad led him to believe that he would get no more than 12 years if he did so. Theappellant had calculated that he might be paroled soon and "still have some of [his] life left".[41] Ms Bellve-Wack noted that the appellant expressed "much anger" at his lawyer and "went on to deny all of the charges to which he had pleaded guilty,stating he had done so only on the advice of his lawyer". He alleged that his last partner had "initiated the case against him because she wanted to cover up the fact that she had taken his things". He rejected the claims of DK that he had gotten her addicted by injecting her with drugs.The likelihood of the appellant entering into another relationship[42] Turning to the prospects of the appellant entering into another relationship, the high point of the appellant's case in this respect is found in Dr Lehany's reportwhere the psychiatrist said this:Outwith intimate relationships, it seems that it is probably not likely that offending of the type which is currently under consideration would occur.[43] However, Dr Lehany went on to say that such offending behaviour, including sexual violence, could not be discounted outside of intimate relationships andalthough he considered that unlikely, "it could occur". He explained:This is a key difficulty in giving an absolute answer to the Court regarding the risk of further offences of that type in that it is impossible to know whether [the appellant] would establish further intimate relationships. I understand he has not had an intimate relationship for around five years now, although this cannot give us any clear idea of what would happen on release from prison. I would respectfully suggest the matters for the Court to consider in this area are the likelihood of [the appellant] entering into intimate relationships again, in which case the risk of reoffending would indeed be high, and the likelihood that he enters no further intimate relationships, in which case the likelihood of this type of offending is very much lower.[44] As to other violent or offending type behaviour, Dr Lehany noted thatalthough the appellant's offending in this respect has not been extensive it has been "persistent through much of his adult life and has included a range of violent offences". He considered that it would appear "likely" that further violent offenceswould occur "albeit not offences of the nature which form the basis of the current legal proceedings". Accordingly, there is a need for caution.[45] Further, the future risk posed by the appellant is not solely dependent on his entering into a relationship. To that extent there is some overlap with other factors such as his lack of insight and poor engagement with mental health providers.[46] Ms Bellve-Wack considered there were a large number of risk factors whichsuggested a "high" likelihood of similar offending in the future. She referred in this regard to the following: [The appellant's] past criminal record, preceding the index offences,shows multiple violent as well as sexually related offences. His sexual and violent index offending extended over many years and increased in severity. His offending indicates lack of empathy, callousness, sadism, entitlement and anti-social values. Previously and currently he has not accepted responsibility but denied and minimized his offending. He is currently denying his offending, even though he has entered guilty pleas. He blames his victims and others for his predicaments. He has not engaged in addressing the contributing factors to his offending eg substance use, despite numerous opportunities to do so.[47] The appellant relies on the period from 12 May 2010 to 2013 and the fact he commenced the methadone programme in 2012. The appellant says this shows he can live on his own and maintain the methadone programme.[48] However, this period of time needs to be considered in context. The history shows that after the end of his relationship with K in May 2007 there were two breaches of a protection order issued against the appellant in relation to her and he threatened to kill her. He was sentenced to a short period of imprisonment and following his release on 5 June 2008, having commenced his relationship with DK, there was a further breach of the protection order in relation to K.[49] The appellant was sentenced at the end of 2009 to 14 months' imprisonmentin relation to injuring the first complainant, K. He was released in May 2010. The record shows a conviction in June 2010 for a breach of a protection order, which related to an attempt to contact DK. From June 2010 to his arrest in 2013 there areno further convictions. However, we agree with the Crown's submission that this aspect can only be taken so far. As we have noted, Dr Lehany's opinion was that this gap could not give "any clear idea" as to what would happen on release from prison.[50] Further, Ms Bellve-Wack's opinion was that the history showed the appellant had moved from one relationship into the next "indicating that he does not tolerate aloneness very well". Her report refers to a mental health assessment undertaken on 17 May 2011, that is 12 months after his release from prison, in which the appellant is described as living by himself but that he had a girlfriend. Further, the appellant told Ms Bellve-Wack that his intention in the future was to stick to casual sexualencounters because "otherwise, what's the sense of living". The Crown submissionsalso refer to an incident recorded whilst he was in prison in early 2014 when he punched a cellmate in the face. He said he did that because he was a "fkwit".[51] It does appear that the appellant has remained on the methadone programme.[52] When all of these factors are taken into account, we consider it is fair to conclude that this period of time does not alter the overall assessment of future risk.The earlier rehabilitation attempts[53] As to the earlier attempts at rehabilitation and of involvement with the mental health and drug addiction agencies, the history is, as the Crown submits, extensive.We set out the Judge's description at [28] above. That history dates back to 1996.Against this background, the Judge was right to describe this history as "patchy".19Further, Ms Bellve-Wack concluded:[The appellant's] use of the mental health system seems to have beenopportunistic. It often occurred in the context of legal problems. He has never been found to suffer from a psychiatric disorder, but has been diagnosed with substance induced mood problems, antisocial personality19 Sentencing notes, above n 1, at [113].disorder and substance abuse. He was regularly referred to drug and alcohol services with which he engaged haphazardly.[54] Accordingly, there is nothing in the matters raised by the appellant that alters the careful evaluation undertaken by the Judge. Looking at these matters and theoverall picture, we agree with the Judge's evaluation.Result[55] The appeal was filed out of time. No objection is taken to our granting an extension of time and we accordingly make an order extending the time to file the notice of appeal. The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for RespondentAppendix 120Charge Offence Date Victim Sentenceimposed(prison)1 Injuring with intent to injure (representative) 1/1/1990 –3/11/1994 K 4 years3 Sexual violation by rape (representative) 4/2/1993 –27/2/2007 K 12 years6 Injuring with intent to cause grievous bodily harm (representative) 1/10/1995 –27/2/2007 K 6 years8 Sexual violation by unlawful sexual connection (representative) 1/10/1995 –27/2/2007 K PD with MPI of 10 years13 Threatening to kill 23/11/1997 –23/12/1997 K 1 year15 Causing grievous bodily harm with intent to cause grievous bodily harm 23/11/1997 –23/12/1997 K 10 years21 Causing grievous bodily harm with intent to cause grievous bodily harm 1/1/2007 –27/2/2007 K PD with MPI of 10 years22 Causing grievous bodily harm with intent to cause grievous bodily harm1/1/2007 –27/2/2007K PD with MPI of 10 years23 Causing grievous bodily harm with intent to cause grievous bodily harm 1/1/2007 –27/2/2007 K PD with MPI of 10 years24 Cruelty to a child (representative) 9/5/2002 –27/2/2007S 5 years29 Cruelty to a child (representative) 24/8/2003 –27/2/2007 E 7 years30 Administering a class B controlled drug (representative)1/3/2008 –10/10/2009DK 4 years33 Cruelty to a child (representative) 1/3/2008 –5/2/2009 Y 3 years36 Injuring with intent to injure (representative)1/3/2008 –10/10/2009DK 4 years37 Causing grievous bodily harm with intent to cause grievous bodily harm 17/9/2008 DK PD with MPI of 10 years41 Sexual violation by rape (representative)1/3/2008 –10/10/2009DK PD with MPI of 10 years42 Sexual violation by unlawful sexual connection (representative) 1/3/2008 –10/10/2009 DK PD with MPI of 10 years20 This material is taken from the Crown's written submissions.44 Sexual violation by unlawful sexualconnection (representative) 1/3/2008 –10/10/2009 DK PD with MPIof 10 years