IN THE COURT OF APPEAL OF NEW ZEALAND CA 165/99 THE QUEEN HARRY MICHAEL JAMES MURPHY. 28 July 1999 (at Auckland) Anderson J Robertson J

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1 IN THE COURT OF APPEAL OF NEW ZEALAND CA 165/99 THE QUEEN V HARRY MICHAEL JAMES MURPHY Hearing: Coram: Appearances: 28 July 1999 (at Auckland) Henry J Anderson J Robertson J B R Northwood for Appellant P K Hamlin for Crown Judgment: 28 July 1999 JUDGMENT OF THE COURT DELIVERED BY ANDERSON J [1] The appellant seeks leave to appeal against a sentence of Preventive Detention imposed by the High Court in April 1999 following trial before a Judge and jury. Leave to appeal is required because the appeal was filed out of time. However the delay is not great and the reasons have been explained to our satisfaction. We would not decline leave and we intend to deal with the appeal on its merits. [2] The appellant was convicted on nine counts of indecent assault and two counts of sexual violation by rape. There were three victims, all girls under the age of 12 years at the times of the offences which took place over a period of about 14 or 15 years. Some of the earlier indecent assaults, which occurred before 1985, would

2 now be categorised as sexual violations of a serious nature. They include digital penetration of the victims vagina, and connection between the victims mouth and the appellant s penis. The offending involved breaches of trust towards children visiting the appellant s home. [3] On 12 December 1988 the appellant was convicted in the High Court at Auckland on one count of inducing an under age boy to do an indecent act and on two counts of indecently assaulting a female under the age of 12. He was sentenced to six months imprisonment on each count, with two of the terms imposed cumulatively, resulting in a total sentence of 18 months imprisonment. The appellant had been convicted of various offences before that time, but this was the first sentence of imprisonment. That was not an insignificant penalty but it did not deter him from twice raping one of the complainants within 3-5 years of the imposition of the sentence. [4] The offences for which the appellant was convicted in 1988 are, like those presently under consideration, specified offences in terms of s 75(1)(b) of the Criminal Justice Act Upon his recent convictions the appellant became liable to a sentence of Preventive Detention pursuant to s 75(2), which provides that subject to the provisions of the section the High Court, if it is satisfied that it is expedient for the protection of the public that an offender to whom the section applies should be detained in custody for a substantial period, may pass a sentence of Preventive Detention. Because of this the sentencing Judge requested a psychiatric report as to the risk of future offending. [5] The material before the Judge included a pre sentence report, the psychiatric report which the Court had requested, and a report from a registered psychologist engaged on behalf of the appellant. The pre sentence report showed that the appellant s family life, when he was a child, was violent and otherwise abusive. His father was a heavy drinker who made his wife s life a misery and who sexually abused the appellant at the age of 12. The appellant was also a sexual victim of his father s friends. A pattern of trouble at school, aggression, low self esteem, and poly-substance abuse, which characterised the appellant s teenage years, are sadly typical of the victims of such circumstances, whether male or female. In 1979 the 2

3 appellant, as a 17 year old, had spent eight months on Rotoroa Island receiving treatment for alcohol and cannabis addiction, and during much of the 1980 s he was diagnosed as a paranoid schizophrenic. In 1984 the appellant got into a hotel fight with his brother who died in consequence. The appellant was not charged with an offence in relation to this tragedy but his mental state deteriorated to the point where he was admitted to a psychiatric hospital. He was seldom in gainful employment and on occasions was treated in psychiatric institutions. Injuries sustained in a motor cycle accident led, in 1990, to partial amputation of a leg and further amputation was required on four occasions subsequently. The pre sentence report expressed the following opinion:- I have to conclude he does not understand or comprehend the consequences that his denial has upon the issue of treatment, the probable link between the abuse upon him and the abuse he has committed, and the trauma experienced by his victims. Because of his denial he could not express remorse or shame. All of these factors contribute to render him a very high risk candidate for further offending. The departmental risk/needs assessment confirms he is of high risk for further offending. [6] Over the years the appellant has been convicted of a number of offences, apart from those already referred to. They include several incidents of cannabis possession, common assault, being a male assaulting a female, driving offences, breaches of periodic detention, and dishonesty. Sentencing responses have included periodic detention, fines, supervision, community service, and the imprisonment imposed in [7] The forensic psychiatrist, Dr Jeremy Skipworth, referred to the appellant s long history of alcohol and drug abuse, his extensive and varied criminal history, and expressed the opinion that the admissions to psychiatric hospitals were very unlikely to relate to any form of mental illness such as schizophrenia. Dr Skipworth considered it more likely that the admissions related to antisocial personality disorder in combination with drug and alcohol abuse. The doctor considered there to be a great deal of uncertainty in relation to the accuracy of prediction of recidivism upon release of sexual offenders. He referred to a recent study, Hanson and Bussiere, That study indicated a lesser incidence of recidivism by sexual offenders than might be popularly thought to be the case. Dr Skipworth s 3

4 assessment of risk examined the question in terms of seven aspects considered relevant in that study. He considered that the antisocial personality disorder and the significant number of prior offences attracted a modest risk of recidivism in terms of those variables. The sexual criminal history involving prior offences, the diversity of those crimes and the fact of a boy victim as well as girls, was considered to attract some of the risk associated with sexual criminal history but not in the highest risk group. The highest risk group is seen as recidivist offenders who victimise strangers. Dr Skipworth did not consider the appellant to attract risk in respect of demographic variables because only young age and single marital status were considered to be variables related to sex offender recidivism. The doctor concluded that the appellant s general criminality and sexual criminal history attracted a moderate risk of recidivism but that the strongest predictors of sexual recidivism were unavailable to him. He accordingly stated that whether the appellant presented a substantial risk of re-offending upon release was a matter that he must leave for the Court. [8] Mr G. Woodcock, the registered psychologist engaged on behalf of the appellant, conducted a number of psychometric tests in connection with the estimation of intelligence, the evaluation of personality, personal and social environment, anger management, suicidal ideation, and sexual interest. He concluded that the appellant attracted a low to moderate risk of recidivism, which was an opinion broadly similar to that of Dr Skipworth who nevertheless had qualified his opinion by reference to the absence of the strongest predictors of sexual recidivism. [9] In his sentencing notes the Judge mentioned the appellant s deprived and abusive upbringing and development. He referred to the probation officer s conclusion that the appellant was considered a high risk candidate for further offending and that such conclusion was confirmed by the departmental risk/needs assessment. He also referred to Dr Skipworth s report, the result of which he considered equivocal. In addition he accurately described Mr Woodcock s report as containing a large measure of agreement with Dr Skipworth but with a more positive assessment of the likelihood of the re-offending at the level of low to moderate. 4

5 [10] The Judge then considered the victim impact statements which described effects the Judge considered quite appalling. He thought they portrayed the appellant as an overbearing, callous and totally selfish person. He considered as aggravating features the number of complainants, the fact and features indicative of a gross breach of trust in each case, the lengthy period of time over which the offending occurred, the chronological relationship and significance of such offending and the 1988 convictions, and the continued denial of responsibility and consequential absence of any expression of remorse or concern. [11] The Judge recognised that in exercising the discretion to impose Preventive Detention in the case of an eligible offender a Court will ordinarily consider whether the protective purposes of Preventive Detention could appropriately be met by an available finite sentence of imprisonment. [12] The Judge summarised counsel s arguments against a sentence of Preventive Detention. These emphasised the specialists assessments of future risk at low to moderate, indicating in counsel s submission a sensible prospect that there would be no re-offending. Counsel submitted such prospect imported a realistic chance of reformation to the extent that it would not be expedient for the protection of the public to impose Preventive Detention, particularly when there could be a lengthy finite sentence in lieu. Counsel submitted that the lack of acknowledgement and remorse should not be overemphasised; that the appellant had a stable relationship including a child, which indicated that he had overcome his previous appalling and dissolute lifestyle and supported a sensible possibility of reformation. [13] The Crown submitted to the sentencing Judge that continued denial was significant in relation to the likelihood or otherwise of re-offending and the success of appropriate treatment. Such significance was referred to by this Court in R v Reha, CA 458/98, 5 March The Crown submitted that particularly having regard to the application of s 75(1)(b) the opinions of experts as to the likelihood or not of re-offending was not determinative of the issue of relevant expediency. Dr Skipworth s inability to conduct tests which act as predictors of future conduct had to be taken into account and in any event, in the Crown s submission, an 5

6 improved domestic and lifestyle situation since about 1991 did not inhibit the most recent offending. [14] The Judge considered that if the matter were to be determined solely on an assessment of the risk of re-offending based on the specialists reports he would have some difficulty in concluding that the imposition of Preventive Detention was appropriate. He considered that a finite sentence would have to be in the range of 8-11 years, but a feature of the sentence of Preventive Detention which he saw as being particularly relevant to the case was the amenability to recall after release. He considered there was an unacceptable risk of future offending indicated by the sexual abuse of young victims in a vulnerable situation, notwithstanding the Court s involvement in Relevant also, in the Judge s view, was the nature of the appellant s personality to be inferred from the victims statements and threatening aspects of the psychiatric interview. [15] In his submissions on appeal Mr Northwood again gave careful attention to the psychiatric and psychological reports. He submitted that these were expert opinions indicating a moderately optimistic viewpoint in respect of the appellant s prospects of recidivism. Whilst acknowledging that the opinions were tempered by a lack of some data, he submitted that the general prognosis was not entirely negative and that to the extent that there may have been doubt this should have been resolved in favour of a lengthy finite sentence. He submitted, in effect, that undue emphasis had been placed by the sentencing Judge on the power of recall, imported by the sentence of Preventive Detention, in that any further offending would subsequently be likely to bring a sentence of imprisonment and possibly Preventive Detention. Mr Northwood also submitted that in principle it was wrong for the Court to be influenced by remission or parole policy with respect to the nature and duration of any sentence. He cited R v Stockdale [1981] 2 NZLR 189 in support. For the reasons indicated later in this judgment, we do not accept that submission. [16] Mr Northwood further submitted that the Judge s perception of a future risk did not accord with the professional opinions; that observations about the appellant intimidating his victims were common in sexual cases and could properly be reflected in a long finite sentence; and that such a lengthy finite sentence coupled 6

7 with a warning as to the consequences of further offending should have been imposed. [17] Counsel for the Crown submitted that the case exhibited, unfavourably to the appellant, many indications for a sentence of Preventive Detention discussed in R v Leitch [1998] 1 NZLR 420, at 429. These included the nature of the offending; its gravity and time span; the category of the victims and the effect on them; and an unfavourable response to previous rehabilitation efforts, including in respect of sexual and other offences, subsequent to the 1988 sentences and the absence of steps taken to avoid re-offending. He referred also to the continuing denial of responsibility for the appellant s actions and absence of remorse for his victims. At the time of Dr Skipworth s interview the appellant was denying the offences to which he had pleaded guilty in 1988 and in all three reports presented to the sentencing Court on the present occasion he was denying the offences for which he had been found guilty. Counsel emphasised the probation officer s assessment of risk and referred to the limitations imposed on Dr Skipworth s clinical analysis. In addition he noted the qualification in Mr Woodcock s opinion that given treatment the appellant attracted a low to moderate risk of recidivism. The effect of counsel s submission was that the sentencing Judge could not be said to have exercised his discretion wrongly. [18] We do not consider the Judge erred in having regard to the protective power of recall involved in a sentence of Preventive Detention. When, in R v Stockdale, this Court made its observations about parole, it did so, at p190, in these terms:- The duration of any custodial sentence is generally best determined without reference to an offender's eligibility for parole. There are good reasons for taking such a view. Sentences imposed by the Courts reflect the balancing of a number of factors, including the nature and circumstances of the offence, the character of the offender, the need for the imposition of a deterrent penalty, and the presence of mitigating factors. Moreover, the desirability of preserving some uniformity of penalties between offenders convicted of the same kind of offence is always to be borne in mind. The balancing of these factors will not be better effected if the sentencing Court is obliged to take into account, in imposing a sentence of imprisonment, an offender's eligibility for parole by reference to the length of sentence imposed. 7

8 [19] The lifetime amenability to recall in the case of a person sentenced to Preventive Detention is an incident of the sentence itself and is accordingly of quite a different nature from eligibility for parole. In R v Leitch at pp this Court emphasised the relevance of the statutory incidents and features of the particular sentence and considered that a Court can be expected to keep them in mind as being relevant to the exercise of the sentencing discretion under s 75. [20] The issue of expediency for the protection of the public, which by virtue of s 75(2) of the Criminal Justice Act 1985 is a condition of the exercise of the particular sentencing discretion, requires a judicial assessment which may be informed by, but is not determined by, the opinions of experts in psychiatry or psychology. The nature as well as the extent of risk may be important. In a case such as the present, for example, where those put at risk are vulnerable young children, considerations of protective expediency may, in all the circumstances of the case, render even a lengthy finite sentence an unacceptable risk. And of course the Court must have regard to the other relevant features discussed in R v Leitch, as the sentencing Judge did here. [21] We think the Judge was entitled to have regard to the power of recall and to take the inference he did of an indication of risk referable to the appellant s personality in light of the type of offending and the characteristics of the victims. We are not persuaded that he wrongly exercised the discretion accorded by s 75(2)(b) of the Criminal Justice Act Therefore, whilst leave to appeal is granted, the appeal itself is dismissed. Solicitors: B R Northwood, Auckland, for Appellant Crown Solicitor, Auckland, for Respondent 8