R v WASHER [2017] NZHC 1683

R v WASHER [2017] NZHC 1683 [20 July 2017]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI 2016-021-847[2017] NZHC 1683THE QUEENvMATTHEW WILLIAM WASHERHearing: 20 July 2017Counsel: J M Marinovich for CrownJ C Hannam for DefendantSentence: 20 July 2017SENTENCE OF ELLIS J[1] Mr Washer, you appear for sentence today in relation to sexual offending against T, when she was aged between nine and 14 years old. T's name is, of course, suppressed. You have pleaded guilty to one representative charge of sexual conduct with a girl under 12,1 four charges (specific and representative) of sexual conduct with a young person under 16,2 one representative charge of sexual violation by rape,3 and seven charges (specific and representative) of sexual violation by unlawful sexual connection.41 Crimes Act 1961, s 132(3), maximum penalty 10 years' imprisonment.2 Crimes Act 1961, s 134(3), maximum penalty seven years' imprisonment.3 Crimes Act 1961, ss 128 and 128B, maximum penalty 20 years' imprisonment.4 Crimes Act 1961, ss 128 and 128B, maximum penalty 20 years' imprisonment.[2] You have already received a first strike warning as a result of your convictions on these charges.[3] Your lawyer, Mr Hannam, and the Crown's lawyer, Mr Marinovich, are essentially agreed that the main question for me today is whether you should be sentenced to preventive detention rather than to a finite, or fixed, term of imprisonment. The second question will be the length of any minimum term of imprisonment, that is the amount of time you must spend in jail before you might be released on parole.[4] First of all, I need to talk in more detail about what exactly it is you did.Facts[5] In 2011 you formed a relationship with and moved in with T's mother. T was then nine and her little sister was three. T's mother was quite a lot older than youand in fact T was closer to you in age than she was. But T was not an adult. She was a child.[6] Mr Hannam has confirmed that you accept the allegations in the Police Summary of Facts. That Summary records that when T was about 10 you took her into the spare room and asked her to kiss you. You then kissed her on the lips. You took your penis out of your pants and told T to suck it, which she did until you ejaculated. You made her suck your penis many times. Other times you touched T'sbreasts underneath her clothes and this would often be followed by other sexual acts.[7] You also regularly sexually violated T by putting your penis into her anus. Usually this would happen in the spare room, while her mother was in the shower, asleep, or out of the house. You did not use any lubricant and T was very sore as a result. On many other occasions, you told her to take off her clothes and lie down on a table in the spare room, and then you licked her vagina.[8] Sometimes you had vaginal sex so vigorously with T that it hurt her. When she said that you were hurting her you said sorry and slowed down. The Summary says that you took your penis out of her vagina and ejaculated before using a rag to clean up.[9] Many other times you would get T to hold your penis and encouraged her to masturbate you, sometimes until you ejaculated and sometimes followed by you performing other sex acts upon her. Sometimes you masturbated yourself until you ejaculated. One specific occasion on which this happened was when T was 13 and she was in the kitchen with you when the rest of the family was asleep. You began masturbating in front of her and then told her to continue, which she did until you ejaculated.[10] One time you told T to take off her clothes and get into bed with you. You put your penis into her anus and thrusted hard which made her very sore. Then you told her to get under the blankets and suck your penis. When she did what you said, she nearly vomited. When her mother got home, T told her that she was sore because she had fallen over. You had told her not to tell her mother anything.[11] On Wednesday 2 November 2016, T got home from school and you told her to go into the spare room. You told her to touch your penis, which she did. When you asked her "Do you want to suck it?" she said no. You got angry and told her to"Suck on it" which she then did until you ejaculated.[12] When T had her period, you did not want to have sex with her but you would make her undress and bend over the table in the spare room. You would then spank her on the bottom. This was sometimes directly on her skin and sometimes over clothing. You smacked her until her bottom became sore and red, and then you masturbated yourself in front of her.[13] Eventually T told a CYFS social worker and the Police what you had been doing. She said that when she was younger she didn't realise what was happeningwas wrong and did not mind. But later she became disgusted but felt that you were forcing her to continue. She reported your offending when she realised that heryounger sister had reached the same age that she had been when you first started doing these things to her. She wanted to protect her sister.[14] When spoken to by Police you admitted some of the offending (touching T'sbreasts and bottom and getting her to perform oral sex on you) but denied the rest. You said she enjoyed it and that you would never do anything she didn't want to do.But later you pleaded guilty to all the charges.[15] I have read the victim impact statements written by T and her grandmother. I am not going to say much about them today because anyone can guess what they say.[16] Although you may have sometimes told yourself that T did not mind, you knew, you must have known, that what you were doing was wrong. What you were doing to her was truly dreadful. You did it secretly and you told her not to tell. She was a little girl when you started doing sexual things with her and you were an adult. Adults do not have sex with children. You should have been looking after her, being like a father or a big brother to her. You should not have been thinking of her as someone you could have sex with whenever you wanted or however you wanted. And on many occasions you knew, you must have known, that T was not at all okay with what you were doing. She told you that. She did not want to have sex with you or do those other things. You were hurting her. She was a child and you hurt her body and you hurt her mind. You hurt her family.Preventive detention inquiry[17] As I have said, the main question for me today is whether the appropriate sentence is preventive detention or a lengthy fixed term of imprisonment. Mr Hannam will, I am sure, have explained to you that the purpose of preventive detention is to protect the community from people who pose a significant and ongoing risk. Your age and the nature of your offending means that you potentially qualify for such a sentence.[18] So the main thing I need to decide is whether I am satisfied that you are likely to commit another qualifying offence if you are released at the expiry date of a finite sentence. There are a number of things that the law says that I need to take into account when making that decision.Pattern of Serious Offending[19] The first of the things that I need to consider is whether there is a pattern of serious offending by you. It is relevant that, although you have no previous convictions for this kind of thing, you do have a youth court notation for indecent assault, in 2006, when you were 16. The assault involved you grabbing an olderwoman's bottom and only letting go when she yelled and swore at you. You later accepted that you did this because you were sexually aroused and fantasised that, once touched, the woman would want to have sex with you. Three weeks later you followed the same woman and shouted at her when she tried to avoid you. The next day you yelled at another older woman who was walking her dog to "drop her trousers".[20] It was later recorded by your therapist that after the offending, you would masturbate to thoughts of what you had done. You hid in the bushes, and masturbated while watching women, sometimes exposing your penis in the hope of being seen by them, and you came close to fully exposing yourself.[21] As a result of these events you were sent by CYFS to a community based, Wellstop adolescent sex offender treatment programme. You attended 25 sessions over the period of a year but when you turned 18 you said you did not want to continue and so did not "graduate". Your therapist, Mr Stevens, said you were difficult to work with. He expressed concern that you had not made a genuine decision to stop using what he called your "unhelpful sexual offending fantasies".[22] It seems to me that there is likely to be some link between what happened back then and what happened more recently, as they both involve sexual offending. Possibly the underlying psychological motivations are the same, although that is far from clear. The context of the offending is very different. The 2006 offending involved targeting unknown adult women in public, whereas the present offending involves ongoing offending in private against a victim who was vulnerable due to the nature of your relationship with her. In some ways both sets of offending were opportunistic in the sense that you took sexual advantage of the circumstances you happened to be in at the time.[23] But regardless of whether the 2006 assaults can properly be regarded as the beginning of a developing pattern, it is accepted by counsel that what you did to T over a period of five years itself discloses a relevant pattern. I agree with that. There is a pattern here.Harm to the community[24] The second thing I must think about is the harm that your offending has done to the community. I have already talked about to the terrible harm that you have caused to T and her family, but what you did harms all girls and women and it harms the community too. Women are not to be thought of as objects created for men to use as they please, let alone little girls. And the ongoing harm suffered by victims of childhood sexual assault is inherently deeply serious and affects the wider community. The effect can be seen in terms of medical and psychiatric costs but also simply in terms of the loss to the community that's involved in having damaged and traumatised people in it.Risk of future offending[25] The third and very important thing I must consider is any information that suggests that you are likely to do similar things in future. In your case, I have a copy of the report prepared in 2006 which assessed you as being at high risk of reoffending in a sexual manner, although you were not then regarded as posing a risk to children. Much more recently, there are the reports of a psychiatrist,Dr Van Zeist-Jongman, and a psychologist, Mr Skinner. Those reports were prepared at the Court's request.[26] In terms of likelihood to commit future offences, Mr Skinner's view was that you posed a high risk, and that any future offending "should it occur" would likely be in the context of a "poor relationship where target age females are available".5The risk he identified is thus different from the risks identified in 2006. Mr Skinner did not specifically give a view about whether preventive detention should be imposed.[27] In her first report Dr van Zeist-Jongman noted the obvious difficulty of predicting the future, but opined that you were aware of the wrongfulness of your actions and motivated to attend treatment. Mr Skinner also said that your acceptance of your offending was an important protective sign. But Dr van Zeist-Jongman was of the view that a lengthy finite sentence would be sufficient to give you time to work on your rehabilitative goals and that if you completed the courses that will likely be available to you in prison your risk would be reduced.[28] Dr van Zeist-Jongman's second report6 which was prepared later at the request of the Court concluded that there is "at least a moderate risk for you to reoffend with a sexual offence if you were to be released from prison without any further treatment today".7 She did not express a concluded view on whether a lengthy finite sentence would adequately safeguard against this risk.[29] Overall, though, the upshot of the recent reports is that the writers think that there is a real, and even high, risk that you will offend in a similar way upon your release if you do not receive and accept treatment.5 Mr Skinner said that using the ASRS static risk tool Mr Washer fell within the low-medium category, 12 per cent of whom could be expected to be reconvicted after 10 years. Using the VRS:80 tool (which assesses both the static and dynamic risk of sexual recidivism) Mr Washer was at a high risk of reoffending.6 Because Dr van Zeist-Jongman did not use any of the standard actuarial risk tools in her first report she was asked to prepare a second report in which she did so.7 Dr van Zeist-Jongman said that she had used the Static99R risk assessment tool, in which Mr Washer scored in the "above average" risk category, the Sexual Violence Risk-20 tool (whichmeasure both static and dynamic risk) in which Mr Washer scored in the "moderate" categoryand the SAPROF tool which measure protective factors and which indicated that Mr Washer's motivation for treatment and "positive attitude towards authority" are his strongest positivefactors.[30] But there are things which lower, or potentially lower, the risk of future offending that you undoubtedly pose. As well as the availability of treatment in prison and your stated willingness to accept it, there is the ability of the Corrections Service to apply for an Extended Supervision Order at the expiry of any fixed term sentence, if it is thought that you still pose a high risk of reoffending. ESOs impose very restrictive release conditions on a former prisoner and permit close monitoring to address any risks posed. They can last for 10 years and can be renewed beyond that time. Their potential availability has also been regarded by other judges in cases like this as favouring a fixed term sentence of imprisonment rather than preventive detention.[31] And lastly, there is the fact that you will (from today forward) have your name placed on the Register of Child Sex Offenders, and will be subject to the reporting and other requirements under the 2016 Act for the rest of your life. Those requirements are intended to provide a further level of protection against any risk you might continue to pose upon release. For example you will be required to keep the Police informed on an ongoing basis of the names and ages of any children living with you. You will be required to tell the Police who your internet provider is, the details of your modem or router and what all your online usernames are.8[32] I would expect that registration would, in particular, assist in protecting against the specific risk identified by Mr Skinner, by reducing the prospect that youwill be able to be in a domestic situation where young girls are "available" to you.Efforts to address causes[33] The next thing I am required to consider is what efforts have been made by you to address the causes of your offending. The first point is that you have not had an opportunity yet to seek or receive treatment for offending of the specific kind we are dealing with today. But there is your attendance at that Wellstop course during 2006 and 2007 which resulted from that rather different indecent assault charge. I must say I find it difficult to know what to make of that. It is concerning that you attended therapy for a year but you stopped attending without graduating, when your8 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, ss 16 and 17.therapist thought you still posed a risk of reoffending. On the other hand you did attend 27 sessions over a period of a year, although the notes record that your engagement varied from good to indifferent. It is relevant though that you were only 16 or 17 and once you turned 18 you were not obliged to go on attending. And it seems you did not offend again for four or five years, though as I've said it was in amuch more serious, albeit quite different way when you did. Although the outcome of your earlier treatment certainly does not help you today I am not inclined to regard it as a significant point against you, either.[34] I think the real issue for you now Mr Washer is going to be what efforts you make to help yourself, to help make sure that you don't do something like this againwhile you are inside prison.A lengthy determinate sentence?[35] The fifth and last matter that I need to consider is that Parliament has said that a lengthy, fixed sentence is preferable provided it would provide adequate protection for the public. In that regard it is especially relevant that any significant risk you continue to pose on release could be addressed through an ESO and, as I have said, will be addressed, at least in part, by the Child Sex Offender regime.[36] In terms of what any fixed sentence would be, the lawyers today are essentially agreed that an appropriate starting point would be between 18 and 20 years' imprisonment. My own view is that a starting point of 19 years would be appropriate. That would recognise that there are some particularly serious things about what you did, including:9(a) the significant breach of trust involved in a step-father abusing a young girl;9 While Mr Washer's offending clearly falls within band four of R v AM (CA 27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 most of the aggravating factors listed here and referred to by the Crown are inherent either in the band four classification itself, or in the nature of sexual offending of this kind. Mr Washer's offending here cannot be seen as being of the most seriousband four kind, but the extent and repetition of the offending requires recognition.(b) T's particular vulnerability due to her age and your position in her household;(c) the very great number of offences you committed against T and the fact that you kept doing those things to her over a period of five years; and(d) the harm you have caused her and her family.[37] Because such a starting point would reflect the totality of your offending there are, in my view, no other reasons why that starting point should be increased.[38] In terms of things that might mean that the starting point should be reduced, I think the reality is that it is still difficult for you to appreciate quite how bad what you did was. I have heard what Mr Hannam said on your behalf today and my own sense is that it is beginning to sink in somewhat and certainly your acceptance of your offending and the willingness to accept treatment does suggest that you know you have a problem and that you know you need to fix it. So overall I think those are relatively neutral sentencing factors in the particular circumstances of your case.[39] As agreed though there should be a full adjustment downwards from the starting point for your guilty pleas and the fact that you have not put T and her family through a trial. In a case like this that is a particularly real saving. That discount would mean that any fixed sentence I would impose would involve a term of imprisonment of 14 years'. Mr Hannam has not argued against the imposition of a minimum term of imprisonment, particularly to hold you accountable for the harm you have done and adequately to protect the community. In my view, any minimum term of imprisonment would be for eight years.1010 MPIs of longer than 50 per cent, and up to the two thirds maximum, are commonly imposed for prolonged sexual offending: Webster v R [2011] NZCA 141 at [32]. When MPIs of only 50 percent are imposed, this is usually where personal mitigating factors are present: Pomare v R[2015] NZCA 191 at [15] to [20].Result[40] Now I need to say to you, Mr Washer, that today's decision has not been an easy one for me to make. But in the end I am going to exercise my judgment in favour of a lengthy, finite term of imprisonment with the imposition of a minimum term. That means I am not going to sentence you to preventive detention today.[41] As I have said, the facts that Corrections can, if necessary, apply for an ESO on your release and that your name will be on the Child Sex Offender Register forever are both things that have helped me decide that I should not sentence you to preventive detention today. But before I formally sentence you I am required to tell you some more about that. I apologise in advance for the way in which it is expressed. I am sure Mr Hannam will be able to explain it to you in more simple terms what it means.[42] What I am required to say is that because I am imposing a sentence of imprisonment on you today for a qualifying offence under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, you have become a registrable offender under this legislation. This means that your name and information relevant to you and your offending will be placed on the Child Sex Offender Register. It also means you have initial and ongoing reporting obligations under the Act. It is an offence to fail to comply with your reporting obligations without reasonable excuse, or to provide false or misleading information. It is also an offence to apply to register a change of your name without first having obtained the written approval of the Commissioner of Police.[43] In your case, the reporting obligations begin when you are let out of jail in relation to these qualifying offences. You are going to have to comply with the reporting obligations for the remainder of your life. You will remain on the register for any period during which your reporting obligations are suspended.[44] The Registrar will also give you written notice of your reporting obligations and the penalties for failing to comply with them.[45] So that is what I am required to say about that. If you could stand now please Mr Washer.[46] On each of the sexual violation charges you will be concurrently sentenced to 14 years' imprisonment with a minimum period of imprisonment of eight years.[47] On the representative charge of sexual conduct with a child under 12 I sentence you to four years' imprisonment, concurrent with the other sentences.[48] On each of the charges of sexual conduct with a child under 16 I sentence you to sentences (concurrent with the other sentences and with each other) of threeyears' imprisonment.[49] What that means Mr Washer is that your end sentence is one of 14 years'imprisonment. You will be in prison for at least eight years before there is any possibility of release.[50] Please stand down.________________________Rebecca Ellis J