IN THE COURT OF APPEAL OF NEW ZEALAND CA 196/97 THE QUEEN v IAN CHARLES PHIPPS Coram: Hearing: Counsel: Gault J Anderson J Robertson J 19 August 1997 (at Auckland) R. Asher QC and J.H. Wiles for Appellant M.A. Woolford for Crown Judgment: 19 August 1997 JUDGMENT OF THE COURT DELIVERED BY ANDERSON J On 13 March 1997 the appellant pleaded guilty on arraignment in the District Court to one representative count charging that between 1 February 1994 and 1 August 1995 being a male he did indecently assault a named complainant being a boy then aged 13-14 years, contrary to s 140A(1)(a) of the Crimes Act 1961. Because he was eligible for Preventive Detention the District Court Judge declined jurisdiction and remitted him to the High Court for sentence. On 21 May 1997 he was sentenced in the High Court to Preventive Detention. He appeals against that sentence. The appellant is liable to a sentence of Preventive Detention pursuant to s 75(1)(b) of the Criminal Justice Act 1985 because he is not less than 21 years of age
2 and has previously been convicted on at least one occasion since attaining the age of 17 years of a specified offence. The conviction entered upon his plea of guilty is also a specified offence and was committed after the previous relevant conviction. The appellant was born in 1952. He has been convicted of 20 specified offences since 1979 when he was convicted of indecent assault on a boy under 16. For that offending he was fined $300 and admitted to probation for 12 months. In 1980 he received six months imprisonment and 12 months probation in respect of two counts of doing an indecent act with a boy under 16. In 1982 he was again convicted of indecently assaulting a boy for which he received a $500 fine and 12 months probation. In 1987 he was convicted of committing an indecent act and received a sentence of 12 months supervision including a special direction as to counselling. In 1990 he received a total of 12 months imprisonment in respect of sexual offending with a particular boy who was aged 15. This involved two counts of inducing or permitting the boy to do an indecent act, 13 counts of doing an indecent act with the complainant, and one count of anal intercourse. The facts of the latest offending are that in February 1994 the appellant met the complainant, a boy of 13, in a public toilet, befriended him and thereafter enticed him into his car on numerous occasions. There occurred five instances of the appellant touching the complainant s genitals while masturbating himself in front of the boy. On one occasion he went for a walk with the boy in a bush area, where both he and the boy lay on the ground and the appellant removed his own pants and masturbated. The appellant then put a condom on his penis and the boy performed fellatio on him. The appellant was spoken to by the police as part of a general police operation directed at the frequenting of the public toilet by homosexual paedophiles. The appellant refused to say that he knew the complainant and refused to comment on the allegations. Some 15 months later, as previously noted in this judgment, the appellant pleaded guilty on arraignment. The material considered by the sentencing Judge included Police Offence Reports and Summaries of Facts in respect of the previous offences. It also included psychiatric reports prepared in June 1990 for the purposes of sentencing at that time,
3 and psychiatric reports prepared on 21 March 1997 and 13 May 1997 for the purposes of the sentence now under appeal. The Judge also had Victim Impact Statements and a pre sentence report dated 21 March 1997. The sentencing Judge acknowledged counsel s submission that the offending was not sexual violation because the offending did not involve absence of consent by the boy and that the conduct in question was not the grossest form of sexual offending. Nevertheless the Judge considered that the offending was serious. He referred to the psychiatrists reports dated 21 March 1997 and June 1990 and observed that the current 1997 report was far less favourable than indicated in 1990, that the prognosis in the current report was not favourable and lent support to the expression of opinion in the pre sentence report prepared by a probation officer that the appellant is a high risk offender. The Judge noted that although there was consent there was a serious indication of continual seduction of the boy notwithstanding that he may have been predisposed or previously exposed to such conduct. The Judge noted that although the appellant claimed a wish to reform he had done this in the past but had maintained his previous conduct. It was noted that there had been no success in relation to previous attempts at rehabilitation and the Judge concluded that there was a high risk of re-offending and that it was expedient for the protection of the public that the appellant should be detained in custody for a substantial period. The Judge concluded that notwithstanding the grave nature of a sentence of Preventive Detention and the leap in seriousness of such a sentence compared with previous occasions, he had a duty to the public and to other susceptible youths to impose Preventive Detention. On the appeal Mr Asher stressed the principle that Preventive Detention is to be regarded as a sentence of last resort, to be imposed only when a finite sentence would be inappropriate. He submitted that the history of the offender and the particulars of the offence have to be considered in determining whether to impose the sentence of last resort. It was submitted that the offending was at the lower end of the scale of sexual offending encompassed by specified offences. Counsel s submissions were to the effect that the evaluation of risk involved not only an assessment of the likelihood of re-offending but also an appreciation of the type and seriousness of likely offending to which the risk in the particular case relates. On such an approach
4 the risk would relate to re-offending involving non-coercive sexual activities with younger teenage boys of the sort encompassed by the present representative charge. Counsel further submitted that the psychiatrist who had examined and reported upon the appellant in March and May 1997 accepted that the appellant now appreciated the wrongness of his conduct and that the appellant was empathetic to his victim and committed to self-reformation. In the result, in counsel s submission, the evaluation of risk both in terms of the likelihood and the likely nature of re-offending was such as could be met by an appropriately severe finite sentence. Counsel accepted that it was expedient for the protection of the public that the appellant be detained in custody for a substantial period, but submitted that a substantial finite sentence rather than Preventive Detention was appropriate and should therefore have been imposed. It was submitted on behalf of the Crown that the appellant s offending was repetitive and clearly showed a predilection for sexual gratification with younger teenage boys. There had been six earlier victims and the appellant s previous inclination to rationalise and minimise his offending on the basis that his victims were consenting participants, notwithstanding that by reason of their age consent was irrelevant to guilt in respect of the particular offences, indicated lack of insight and therefore continuation of risk. The appellant had received psychological counselling during his period of imprisonment in 1990 and was thought upon his release and during the parole period to have made great headway and to be committed to change. He had also had recourse to psychological assistance although not specifically for the purposes of his sexual proclivity from another source, yet despite previous convictions, counselling programmes and imprisonment he had been unable or unwilling to control his criminal propensity. Notwithstanding that during 1996, between arrest and arraignment, the appellant had had the benefit of counselling services provided by the Home and Family Society as well as attendance at some 15 sessions organised by SAFE Network Incorporated, the indications of a present desire to undertake rehabilitative psychological treatment had an all too familiar ring and should not be given excessive weight in view of past failures and pending sentence.
5 Counsel emphasised the opinion expressed in the pre sentence report that the appellant is a high risk offender and that his perception of appropriate sexual behaviour was distorted. Nevertheless counsel appropriately examined the expert psychiatric opinion indicated in the report of 13 May 1997 which was very proximate to the time of sentencing. That report balanced high risk factors with favourable prognostic factors. Having regard to the absence of specific reference in the sentencing notes to consideration being given to a substantial finite sentence, counsel for the Crown submitted that the issue, although not specifically adverted to by the Judge, was before the Court at sentencing as a matter expressly adverted to in the Crown s written submissions at that time. The Crown submitted that any finite sentence would have to be substantial if the same were to be substituted. It is common ground between counsel that it is expedient for the protection of the public in the particular case, where there is historical evidence of unresisted proclivity, that a substantial custodial sentence be imposed. The issue is whether such protection must be assured by Preventive Detention or whether for the particular offender a long finite sentence will adequately serve the public interest by keeping the appellant away from the public for a substantial period and by seeking to deter reoffending by stern punishment. If those objectives can be met by a long finite sentence then Preventive Detention must be considered manifestly excessive, particularly when the maximum finite term for the particular offence is seven years imprisonment. In a case such as this expert psychiatric opinion is a guide in the assessment of risk and for understandable reasons it has an authority surpassing that of even a highly trained and experienced probation officer. In the present case the probation officer s expression of opinion that Mr Phipps is a high risk offender needs to be considered in conjunction with the psychiatrist s assessment which observed that:- Mr Phipps is presenting with a number of high risk factors balanced by a number of prognostically good factors in regard to possible future offending.
6 The psychiatrist noted as high risk factors the relative length and frequency of the criminal history, personal traits, the sexual response to situational stress, and personal history. He then observed:- The above in my view, and also based on the international research in this area is balanced by Mr Phipps determination to accept that he has shown paedophilic behaviour, that he has a problem in this area, that he accepts the convictions in the past, his expressed empathy re his previous victims and his new life situation, which in Mr Phipps view supports his determination and motivation to change his ways in regard to sexual matters. Seen to be of particular relevance were:- Previous treatment for downcast emotional state Acceptance of Androcur (Cyproterone acetate) to decrease his sexual behaviour toward his target group Steps taken to address his sexual behaviour within the context of the SAFE programme Being desirous, in the event of imprisonment, of joining the Sexual Offenders Programme available in Auckland and Christchurch prisons. The psychiatrist expressed the opinion that the appellant s risk of similar reoffending was of a substantial nature but that it would be lower if the appellant were to maintain his motivation and determination to change, and to successfully get through a number of counselling and other treatment programmes. He recommended ongoing monitoring in prison by the Regional Forensic Psychiatry Services Clinic and the provision of psychological input addressing matters related to life skills against the background of the past sexual offending. Appropriate counselling might be in the context of the Sexual Offender Treatment Programme available in Auckland and Christchurch prisons. In the light of the psychiatrist s opinion, based on material in previous reports and documents as well as the appellant s rehabilitative steps since arrest and the psychiatrist s clinical assessments, the apprehension of risk must be considered in conjunction with the mitigating opportunities and incentives which a long finite sentence could provide. In addition it must be borne in mind that although the intent
7 of a sentence of Preventive Detention is protective its imposition is inevitably severely punitive in effect. When it is clear that a proper balance can be struck between protection of the public from recidivist offending and appropriate punishment for the particular crime, by way of a finite sentence, a sentence of Preventive Detention will be clearly excessive. With respect to the learned and experienced Judge from whom this appeal is brought, we think this is such a case. The risk in terms of likelihood and likely type of offending is not so substantial and immutable nor the particular offending so serious that a sentence of last resort must be imposed. On this occasion a severe finite sentence will serve the interests of protecting the public and denouncing and punishing the offender. We bring to the appellant s attention, as a clear and stern warning, that this is his last chance. We think it also important to emphasise and endorse the recommendations of the psychiatrist concerning psychological and psychiatric monitoring and placement in the prison Sexual Offender Treatment Programme. The appropriate finite sentence must in all the circumstances be severe. Little credit can be given for the belated plea of guilty but some is still due for reasons explained in numerous judgments. But for the guilty plea we would have considered the maximum sentence to be appropriate. As it is we think six years will meet all proper sentencing concerns. Accordingly the appeal is allowed, the sentence of Preventive Detention is quashed and a sentence of six years imprisonment substituted. Solicitors: Bell Gully Buddle Weir (Auckland) for Appellant Crown Solicitor (Auckland)