NICHOLAS BRIAN WYATT v R [2022] NZCA 298

NICHOLAS BRIAN WYATT v R [2022] NZCA 298 [7 July 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA63/2022[2022] NZCA 298BETWEEN NICHOLAS BRIAN WYATTAppellantAND THE QUEENRespondentHearing: 9 May 2022Court: Miller, Duffy and Ellis JJCounsel: M J James for AppellantM L Wong for RespondentJudgment: 7 July 2022 at 10.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of preventive detention is quashed. We substitute on all chargesa sentence of four years, four months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Wyatt was sentenced to preventive detention, with a minimum term of fiveyears' imprisonment,1 following his guilty pleas to one charge of meeting a young1 R v Wyatt [2022] NZHC 133 [Sentencing judgment].person following sexual grooming2 and two charges of sexual connection with thesame young person when she was under 16.3[2] He appeals his sentence, saying that he ought to have been sentenced to theterm of four years, four months' imprisonment that the sentencing Judge, Venning J,would have imposed had he not concluded that preventive detention was necessary toaddress the risk Mr Wyatt poses to the safety of the community.The offending[3] The summary of facts records that Mr Wyatt was introduced to thecomplainant, then aged 13, during a brief romantic relationship with her older sister.He began grooming the complainant, following her on social media and contacting heron a daily basis. Two years later, when she was aged 15, he saw her walking to schooland offered her a ride in his vehicle. He kissed her and touched her legs beforedropping her at school. He then persistently suggested times and dates when theycould meet and she eventually agreed. Over a period of about four months he woulddrive her to secluded locations in his car and they would engage in sexual intercourse,which occurred on approximately 20 occasions. He had her engage in oral sex on twooccasions, and they discussed the possibility of anal intercourse. He persisted incontacting her on social media after she attempted to block him.Mr Wyatt's history[4] Mr Wyatt has a busy criminal history which commenced in 1999 with offencesof dishonesty and extortion. His history of sexual offending began in 2001 withconvictions for unlawful sexual connection with a male under 12. He was convictedof kidnapping and aggravated robbery in 2001, involving entry to a house at night anduse of a weapon to rob the complainants. That resulted in his first term ofimprisonment. In 2006 he was convicted on charges of doing indecent acts with ayoung person, a girl aged 13 (when he was aged 19), and sentenced to a short term ofimprisonment but denied leave to apply for home detention. He subsequentlybreached the terms of a 10-year extended supervision order (ESO) imposed in 2007.2 Crimes Act 1961, s 131B(1)(a)(i) and (b)(i). Maximum penalty of seven years' imprisonment.3 Section 134(1). Maximum penalty of 10 years' imprisonment.In 2009 he was convicted of kidnapping and robbing complainants, using a knife,when looking for a vehicle to steal. Sentencing him, Ronald Young J stated that if hewere to reoffend in a serious sexual or violent way, a sentence of preventive detentionwas inevitable.4 In 2015 and 2016 he was sentenced to short terms of imprisonmentfor breach of an ESO, and he breached the order again in 2017, 2018 and 2019.He also failed to comply with reporting obligations as a child sex offender.The presentence report indicates that a pattern of violence continued in prison, with anumber of attacks on staff or fellow prisoners. He completed the Te Piriti programmein 2012 but was later removed from the treatment unit because he had been involvedin sexual behaviour with another prisoner, which is prohibited in the unit. In aninterview with the probation officer in connection with the present offending, heclaimed that he is not sexually attracted to children.The health assessors' reports[5] The reports were prepared by a Corrections psychologist, Ms Tapara, and aforensic psychiatrist, Dr Saheb.[6] Ms Tapara's report was first in time. She reviewed his history of offending,noting that it included "very limited" violent offending which did not evidence apattern of ongoing violence across time and multiple contexts. He had sexuallyoffended on three occasions over a period of nearly 19 years and in all instances hisvictims were known to him. The present offending was "largely opportunistic" andunderpinned by an antisocial attitude and a sense of entitlement.[7] Ms Tapara was unable to validate Mr Wyatt's reported history of abuse andpost-traumatic stress disorder, but she noted a 2001 report stating that he had beendiagnosed with a severe conduct disorder and a history of head injuries with possiblecognitive and intellectual deficits. He claimed to have suffered several concussionsduring his childhood and adolescence. She suggested that further cognitiveassessment might be warranted but did not anticipate that this would alter his riskassessment for present purposes because the relevant skill deficits had been taken into4 R v Wyatt HC Hamilton CRI-2007-019-9805, 10 June 2009 at [30].account in the risk assessment measures. Those measures assess his risk of furthersexual offending as at least high, and it is likely that this risk will endure over time.[8] Ms Tapara noted that while described as polite and compliant in prison,Mr Wyatt can engage in disruptive and aggressive behaviour when he perceives thatpeople are deliberately not meeting his needs or are breaching his rights. He deniedhaving engaged in sexual conduct with another prisoner during treatment, althoughCorrections records state that he admitted it and he was exited from the Te Pirititreatment community in consequence.[9] With respect to the present offending, Mr Wyatt claimed that the complainantinitiated contact with him and denied that from the outset he communicated with herto facilitate sexual contact. He was able to identify cognitive distortions that heemployed at the time to justify his behaviour. It appeared that he was isolated fromhis mother, on whom he relies for support. Lifestyle stability, particularlyaccommodation, and contact with his mother are protective factors for him, thoughMs Tapara noted that these had not proved effective previously. In order to beeffectively rehabilitated, he would need to develop the ability to inhibit his impulsesto allow for consultation with family members about choices. His newly expressedability to accept responsibility for his behaviour may put him in a better position tobenefit from any subsequent treatment and to develop an effective safety plan. Thismay warrant further long-term psychological intervention.[10] With respect to treatment failures, Ms Tapara accepted that Mr Wyatt's feelingsof shame about his sexual offending may have meant that he did not obtain the fullbenefit of past treatment, but he did describe obtaining some benefit, includingincreased insight into his sexual offending and better capacity to regulate his emotions.He did successfully complete a short intensive programme of drug treatment. He alsoengaged in individual sessions with a departmental psychologist and several whānauhui intended to support him to develop a safety plan. It appears the hui were notsuccessful; this she attributed to family dissatisfaction with Corrections and itsrequirements for supervision of contact between Mr Wyatt and his nieces.[11] Dr Saheb recounted Mr Wyatt's personal, family and medical history in detail.With respect to the current offending, Mr Wyatt claimed that it was consensual andbecause she was only six months away from turning 16, a big deal was being madeout of nothing. He would not acknowledge that the 15-year-old female would still beclassed as a child and claimed that she was an adult. As Ms Wong pointed out for theCrown, there was little evidence in this interview of the insight that Mr Wyattapparently displayed with Ms Tapara.[12] Dr Saheb noted that the likelihood of reoffending may be increased by the earlyonset of sexual offending and a "rather antisocial" personality as an adult. Mr Wyatthas struggled to follow community rules (including those as to sexual behaviour) froma young age and this remains an ongoing problem. His offending appears to have beenopportunistic, involving access to young people and taking the opportunity for sexualcontact. A factor that may increase his risk of reoffending is his denial as to the partthat he played in the offending. He demonstrates distorted patterns of thinkingincluding denial, victim blaming, inability to accept arbitrary rules like the age of achild, and attribution of his reoffending to factors that are not in fact significant (suchas head injury or supposed childhood sexual abuse, which he has no memory of).The sentencing[13] After summarising the facts, Venning J adopted a starting point of five years'imprisonment having regard to age disparity, premeditation, impact on thecomplainant, duration of the offending and a modest breach of trust.5 He added asix-month uplift to reflect Mr Wyatt's previous offending and the fact that thisoffending occurred while subject to an ESO. The Judge did not accept that Mr Wyattwas genuinely remorseful.6 An allowance of 20 per cent was made for the guilty pleas,which were late and in the face of a strong Crown case, and a s 27 report.7[14] The Judge then turned to the question of preventive detention. He found thatMr Wyatt undoubtably has a pattern of serious offending and a number of risk factors,including an anti-social personality disorder, which point to a high risk of further5 Sentencing judgment, above n 1, at [21] and [20].6 At [23].7 At [22]–[25].offending following release from prison.8 The Judge found that the causes of theoffending are deep seated and the risk of reoffending is high.9 Mr Wyatt appears tohave little or no insight and lacks empathy. The Judge appeared to accept Dr Saheb'sopinion that preventive detention may be needed to supply Mr Wyatt with thenecessary motivation to address the causes of his offending. He noted the failure ofpast treatment and the fact that Mr Wyatt offended despite being subject to an ESO.He thus concluded that a sentence of preventive detention was necessary.10The appeal[15] Ms James submitted that the Judge placed undue weight on the fact thatMr Wyatt had previous opportunities to complete rehabilitative courses but continuedto offend. Counsel drew attention to indications that Mr Wyatt's feelings of shameabout his offending may have prevented him from openly engaging in treatment in thepast and argued that his insight appears to have developed significantly in the yearssince he was last treated. His offending appears to have occurred when protectivefactors were missing: particularly, when he did not have stable accommodation andwas isolated from his mother. Mr Wyatt is now motivated to address the causes of hisoffending and is now aware of the importance of doing so.[16] For the Crown, Ms Wong supported the sentence imposed on the basis theexpert reports showed Mr Wyatt poses a high risk of reoffending, an ESO had provedineffective in the past and his alleged newfound motivation to engage in rehabilitationwould not sufficiently mitigate the risk to the community. She submitted Mr Wyattwould not be motivated to properly address his offending without a sentence ofpreventive detention.AssessmentPreventive detention[17] Preventive detention is indefinite and can result in some offenders spendingvery long periods in custody. But it is not a sentence of last resort, nor is it reserved8 At [31]–[37].9 At [49].10 At [50]–[51].for cases in which the index offending must otherwise lead to a long sentence.11 It isimposed to protect the community from those who pose a significant and ongoing riskto its safety.[18] The threshold question is whether the court is satisfied that the defendant islikely to commit another qualifying sexual or violent offence if released at the expirydate of the determinate sentence that the court would otherwise impose.[19] In some cases, such as this one, the index offending and the offender's relevantoffending history are not particularly serious offences of their kind. Thoseconsiderations bear on the likelihood and seriousness of community harm that mayresult from future offending and the possibility that a determinate sentence, coupledwith an ESO, may provide the community with adequate protection.12 They mayinfluence both the threshold question and the exercise of the discretion to imposepreventive detention where the court has answered the threshold questionaffirmatively.[20] On appeal, this Court treats both eligibility for preventive detention and thedecision to impose it as evaluative decisions, meaning that it will substitute its ownopinion if the appellant has satisfied it that the sentencing judge was wrong.13Eligibility[21] We agree with the Judge that Mr Wyatt is eligible for preventive detention; thatis, he is likely to commit another qualifying sexual offence if released at the end of thedeterminate sentence. We share the Judge's considerable doubt that he is sufficientlymotivated to undertake the intensive work of rehabilitating himself. Ms Tapara wascautiously optimistic about his prospects, but the apparent insight on which she reliedwas absent during the interview with Dr Saheb. Mr Wyatt blamed the complainant forhis actions, denied that he groomed her, and sought to justify himself on the groundthat she was an adult.11 R v C [2003] 1 NZLR 30 (CA) at [6].12 Sentencing Act 2002, s 87(4).13 Kumar v R [2015] NZCA 460 at [82]–[83].[22] The assessors point to structural and deep-seated causes of Mr Wyatt'sbehaviour. He has an antisocial personality which leads him to reject rules which donot suit him. He lacks empathy and seeks to justify his behaviour. His view that thecomplainant in the present offending was effectively an adult may be contrasted withher own Victim Impact Statement in which she states that she was young and cravingthe attention that he gave her. His oppositional stance and reluctance to accept others'rules do much to explain the failure of intensive treatment in the past. The healthassessors found the risk of sexual reoffending high and considered that it will remainso until he successfully completes treatment and is able to develop and comply with asafety plan.[23] Having regard to these features of his personality, we doubt that Mr Wyattwould be motivated to undertake treatment if sentenced to four years, four months'imprisonment. Because effective treatment would be an intensive and long-termprocess, as Ms Tapara recognised, it might not do a great deal to advance his releasedate even if he was fully committed to it.[24] We are reluctant to say that Mr Wyatt is without capacity for reform. We makethree points. First, we accept that the onset of his sexual offending was as a youngperson and there is a sense in which it has escalated; he groomed this complainant andoffended against her over a significant period of time. But his history records onlythree incidents that resulted in convictions, none of which were particularly serious onthe scale of sexual offending and all of it involved complainants whom he had cometo know. It ought to be possible to monitor his access to potential victims falling intothis category.[25] Second, we are not directly concerned with Mr Wyatt's history of violentoffending, but we observe that his last such conviction was in 2009, suggesting thatsome protective factors are present. They include whānau support, particularly that ofhis mother. That said, we must acknowledge his history of oppositional behaviour inprison, which includes violence.[26] Finally, Mr Wyatt is now 37, an age at which some offenders' risk ofreoffending may be declining.[27] These considerations suggest that with maturity and intensive supportMr Wyatt might be able to face up to and mitigate his risk of sexual reoffending.We hope so. But reform plainly is a major challenge for him. So we agree withVenning J that further offending is likely, despite Mr Wyatt's capacity for reform.We are satisfied he is eligible for preventive detention.[28] Offending of this kind is by definition harmful, but the question is whether itis so serious that the community needs the protection afforded by preventive detention.We now turn to that question.The discretion[29] When considering whether to impose preventive detention, the Court isrequired to take into account any pattern of serious offending disclosed by theoffender's history and the seriousness of the harm the offending has caused thecommunity.14[30] More than half of Mr Wyatt's 76 previous convictions were for offendingcommitted when he was 19 or younger and all of his convictions since 2015 were forbreaching the 10-year ESO imposed in 2007 or failing to comply with his reportingobligations as a person on the Child Sex Offender Register. The initial sexualoffending occurred in 1999, when he was aged 14 and involved a single incident.He was aged 19 when convicted in 2006 of the incidents with a 13-year-oldcomplainant. Intercourse was consensual. The sentencing Judge described it as a briefromantic liaison which was not a gross breach of trust. It is not entirely clear why thesexual offending earned Mr Wyatt a 10-year ESO upon his release from the 18-monthsentence of imprisonment for the 2006 offending. (The District Court record of theESO is not now available.) It is difficult to see that he had a pervasive pattern ofserious sexual offending at that time.15 On the record before us he does not exhibitsuch pattern now. There was a substantial gap between the 2006 offending and thepresent offences. We do not overlook his history of violent offending, but the last suchoffence was in 2007. As Ms Tapara noted, there does not appear to be a pattern of14 Sentencing Act, s 87(4).15 Parole Act 2002, s 107L.ongoing violence. It is not suggested that his history of violent offences is predictiveof further sexual offending.[31] All of Mr Wyatt's sexual offending is at the lower end of the seriousness scale,including the present offending. This is not to trivialise it, or its impact on the victim.The offences qualify him for preventive detention, and the exploitation of a personalrelationship and sustained grooming are significant aggravating factors. The victimhas sustained emotional harm. But it was a consensual relationship and she was closeto the age of consent. The determinate sentence that the Judge would have imposed isless than the minimum period of five years that Mr Wyatt must serve under a sentenceof preventive detention. We are not convinced that the offending warrants anindefinite sentence of imprisonment.16[32] In addition we have pointed to considerations which offer some prospect thatMr Wyatt will not reoffend, principally his age and the indications that some protectivefactors are present.[33] For these reasons, we respectfully reach a different view from Venning J.We accept that the risk of further sexual offending is high having regard to Mr Wyatt'sintransigence, but we do not think preventive detention is warranted having regard tothe absence of any pattern of serious sexual offending and the relatively minor natureof the index offending. That being so, the sentence passed in the High Court must beconsidered manifestly excessive.Decision[34] The appeal is allowed. The sentence of preventive detention is quashed.We substitute on all charges a sentence of four years, four months' imprisonment. Wedo not fix a minimum period. Mr Wyatt may not find it easy to persuade theParole Board that he should be released before the expiry of that term, but he shouldhave the opportunity to do so.Solicitors:Crown Law Office, Wellington for Respondent16 For a discussion on sentencing defendants whose offending is at the low end on the scale ofseriousness but are at high risk of recidivism, see Carline v R [2016] NZCA 451.