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IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI 2003-404-038946
REGINA
MAURICE WINSTON CLARK
Hearing:
13 May 2004
Appearances: Kevin Glubb for Crown
Mary-Anne Lowe for prisoner
Sentence:
13 May 2004
SENTENCE OF WILLIAMS J
Solicitors:
Crown Solicitor, Auckland
Copy for:
Peter J Kaye, P 0 Box 941 Shortland Street, Auckland
R V MAURICE WINSTON CLARK HC AK CRI 2003-404-038946 [13 May 2004]
MR CLARK: Ordinarily we ask persons being sentenced to stand
whilst the Judge passes sentence. All sentencing is difficult. Your sentencing, for
reasons which will appear and which I have discussed in part with counsel is more
difficult than most. What I intend to do is to invite you to remain seated until I do
ask you to stand towards the end of my remarks.
[1]
At the age of 61, rising 62, you appear here today for sentence having been
found guilty by a jury on 7 November 2003 of all 15 counts in the indictment against
you. They included 12 counts of indecent assaults on the complainant W between 417 March 2003 on each of which the maximum sentence is 7 years imprisonment,
one count of assault to which you were prepared to plead guilty where the maximum
sentence is 1 year's imprisonment, and one count of sexual violation by unlawful
sexual connection, namely by forcing W to commit oral sex on you. On that, the
maximum sentence is 20 years imprisonment. Included in the indictment, by way of
an order for joinder, was a count of sexual violation on the complainant S by
unlawful sexual connection on or about 9 June 2000. That, too, arose because you
forced the complainant to suck your penis when you were wearing a condom. The
evidence was that neither complainant was homosexual.
[2]
Section 128(b) of the Crimes Act 1961 requires you to be imprisoned for
those offences and counsel appearing for you has realistically acknowledged that
prison is the only possible outcome. The principal question today is whether you are
sentenced to preventive detention or whether you receive a finite sentence with or
without a minimum period of imprisonment which you will need to serve before you
become eligible for parole.
[3]
Sentencing has been delayed since the jury's verdict through a number of
factors including the necessity to obtain psychiatric and psychological reports and
delays in their being furnished to the Court, counsel's commitments and other
similar matters.
[4]
The facts of the matter are that in late May-early June 2002 the
complainant S was charged with a number of offences, mostly involving dishonesty,
in the District Court. Because of his history and personal circumstances there was
2
considerable doubt whether he would be admitted to bail. However, you attended
the District Court and offered to have him live at your home during the remand
provided he was subject to a curfew between 7:OOpm-7:OOam. His evidence, though
you continue to dismiss it as fabrication motivated by revenge, is that over the
ensuing days you plied him with alcohol and drugs –S was a drug addict on the
methadone programme - and repeatedly threatened to revoke his bail and have him
returned to prison if he failed to comply with your demands. He strongly objected,
but you offered to wear a condom and in fact obtained condoms. From his evidence
he was plainly very fearful of being returned to gaol. And his evidence was that he
was that he very reluctantly - and only through fear of you and what you could do to
him - complied with your demands. You masturbated while he did so. On one
occasion you also threatened him with a rifle and on another occasion threatened to
set your Alsatian dogs onto him. On one occasion you put your hand on his head to
ensure he complied with your demands. As a result, he retched on each occasion,
scrubbed his mouth out with abrasive cleanser and had two-hour showers. He
ultimately summoned up the determination to complain to his family who got him
out of your house. His victim impact statement shows he is a good tradesman but
has felt unable to work since the offending because of his reaction to it. The
emotional harm to him has been severe - he attempted suicide on one occasion –and,
as he says, he was "preyed on by a sick individual who was in a position to take
advantage of me".
[5] The complainant W was gaoled on 3 March 2003 for nine months. He was
put in a cell with you. His evidence was that on a daily basis from about 4 March
through to about 16 March you made him masturbate you despite his objections and
as a result of the threats you made to him that he would be assaulted. On 13 March,
over his objections, you made him commit oral sex on you by grabbing his hair and
forcing his mouth over your penis to the point where you ejaculated in his mouth.
You threatened to kill him if he failed to comply with your demands. Then, on
17 March, as a result of yet another row about the choice of channels on your
television, you committed a moderately severe assault on W. As a result he called
the prison authorities and complained of your treatment throughout the time he had
been in your cell. Again, your defences - given in evidence and supported in
vigorous cross-examination – that the complaints were fabricated or arose through
3
collusion were plainly rejected by the jury. W's victim impact report said he felt
powerless to resist your demands because he was in prison. He says that after your
offending and a period without drugs he returned to using drugs as a result of your
treatment of him. He has been back in gaol since. He is now separated from his
wife and family. He said that you had "really wrecked my life".
[6]
You made it clear to the Probation Officer that you continue to deny your
offending against either complainant (apart from the assault on W). Accordingly the
Probation Service has been unable to assist greatly though they regard you as being
at "very high risk of re-offending", largely because of your previous convictions.
There are about 156 of these spanning the period from 1957 to 1995. Most are for
dishonesty but the list begins with your committing robbery in the Youth Court in
1957 when you were only 15. You were sent to Borstal in 1960. You were first
imprisoned in 1964 and since then you have been regularly imprisoned on over
twenty occasions for terms of two years, three years and upwards.
[7]
Interestingly for present purposes, you were not convicted of any sexual
offences before 1986 but in that year you were imprisoned for six months for
committing an indecent act with a boy and in 1988 sentenced to one year's
imprisonment for the same offence. In 1994 you were imprisoned for nine months,
suspended for a year, for indecent assault on a boy over 16. In 1995 you were
imprisoned for eight years on conviction of one count of unlawful sexual connection
with a male.
[8]
The Crown has produced the summary of facts and victim impact reports
relating to all those offences. In 1986 you performed oral sex on a 15-year-old
employee who reciprocated. The 1988 convictions followed relatively minor
indecent assaults though they were very frightening to the complainant. The 1994
conviction followed your getting into bed with an employee and kissing him, telling
him it was "part of his employment". The 1995 conviction was somewhat more
serious: you plied a 17-year-old with liquor when he went to your house with
friends. He fell asleep but awoke to find you straddling him, committing anal
intercourse on him.
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[9]
The Probation Service makes the point that following the S complaint you
were re-called to prison in 2002 because the Service took the view that was
necessary to protect the safety of the community.
[10]
In its submissions on sentence, the Crown emphasises the planning and
premeditation involved in your commission of the offences, what it suggested was a
breach of trust in your being instrumental in S obtaining bail to your property subject
to a curfew and the offending which followed, the power imbalance and the age and
size differential between you and the victims. It also relied on the actual violence
involved in the offending – particularly the assault on W and the potential violence
arising from your repeated threats. The repetitious nature of your offending is
stressed, particularly in relation to W, as is the impact on the victims. And, of
course, the Crown stresses your previous convictions.
[11]
In the result, the Crown submits you are eligible for preventive detention and
that such a sentence would be appropriate. If the decision is not to sentence you to
preventive detention, the Crown submits a finite sentence of approximately 10 years
imprisonment is appropriate and a minimum period of imprisonment up to the
statutory maximum of two-thirds of the term would be justified.
[12]
Ms Lowe who appeared for you today agreed that there are no mitigating
circumstances in your case apart from your personal background which she stressed.
You are entitled to the imposition of the least restrictive sentence. She agreed with
the Crown that this offending is not the most serious form of sexual violation. She
submitted it is less serious than the 1995 offence, there has been no escalation in the
gravity of your offending, and that the principal offences for which you are to be
sentenced today are not a similar type of offending with the earlier sexual offending.
[13]
All that has a certain weight but it must be said that the sexual violation
offences for which you are sentenced today are particularly grave. Ms Lowe also
took me through the statutory criteria for preventive detention, submitting there is no
pattern of serious offending disclosed by your history. There is no widespread harm
to the community caused by your offending and the information is slight as to your
5
tendency to commit serious offences in the future, particularly given the cautious
predictions of the health professionals.
[14]
Ms Lowe submits that you have expressed a readiness to involve yourself in
the sexual treatment programmes available in prison, which runs somewhat counter
to the very doubtful views the health professionals express on that. And of course
she submits that the principle is that a lengthy finite sentence is always to be
preferred if that provides adequate protection for society.
[15]
In terms of the Sentencing Act 2002, the sentence to be imposed on you
should be one which attempts to instil in you some sense of accountability or
responsibility for the harm your offending has done to the victims and the
community. The sentence also needs to try and deter you and protect the community
from you. Whether any of those aims are realistically achievable is bound up in the
appropriate sentence. The interests of the victims should be provided for as far as
practicably possible and, of major importance, the sentence should denounce your
conduct and endeavour to deter you. Amongst the aggravating factors are the actual
or threatened violence you used to the victims, the harm to them, to a certain extent
the abuse of trust particularly as far as S was concerned, the victims' patent
vulnerability, the degree of premeditation, particularly as far as S is concerned, and
of course your previous offending.
[16]
Your age might, perhaps, be regarded as a mitigating factor but there seem to
be no others and I will revert to the age question later. In particular, you show no
remorse for your offending: indeed you continue to deny it.
[17]
Of its type and having regard to its repetitiousness, this must be regarded as
grave offending of serious culpability, with major effects on the victims.
[18]
The Sentencing Act 2002 came into force on 30 June that year. Because your
offending in relation to S and W occurred before and after that date respectively,
there are two slightly different sets of criteria which apply to the question as to
whether you are eligible for preventive detention.
6
[19] The same applies in relation to whether you should be ordered to serve a
minimum period of imprisonment if a finite term is imposed.
[20] As far as your offending on S is concerned, that having taken place before the
present Act came into force, you are only eligible for preventive detention if :
a)
You have been convicted of what is called a "specified offence"
committed before 30 June 2002. The definition of "specified offence"
includes sexual violation so that aspect of eligibility is satisfied.
b)
The second cumulative requirement is that, had you been dealt with
on or before 29 June 2002, would you have been sentenced to
preventive detention? That would only have occurred if, first, the
sentencing court considering the sexual violation charge (and some of
your previous sexual offending) would have been satisfied that
preventive detention was the proper sentence for the protection of the
public and, secondly, if the court, having considered the psychiatric
report, would have been satisfied there was a substantial risk that you
would commit a "specified offence" on release.
[21] As far as your offending with W is concerned, it occurred well after the Act
came into force so the present criteria apply. That means that for you what must be
considered is :
a)
Whether a sentence of Preventive detention is necessary to protect the
community from you.
b)
Whether you pose a significant and ongoing risk to the safety of the
community.
c)
Whether you have been convicted of a qualifying sexual or violent
offence – and all your offending other than the indecent assaults
qualify - and whether the Court is satisfied you are likely to commit
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another qualifying sexual or violent offence if released at the expiry of
a finite term of imprisonment.
Account must be taken of your pattern of serious offending, the
seriousness of the harm to the community caused by it, any
information indicating a tendency for you to commit serious offences
in future, lack of efforts by you to address the causes of your
offending and, finally, the principle that a finite sentence is preferable
to preventive detention if the former provides adequate protection for
society.
[22]
Although the wording differs, there is force in the Crown's submissions that
the present criteria largely reflect those laid down by the Court of Appeal in R v
Leitch [1998] 1 NZLR 420, 429 so there is probably less difference in practice than
appears from the different wording.
[23]
In support of its submission that preventive detention is the appropriate
sentence for the sexual violation on S, the Crown relies on the nature and gravity of
your offending, the range of indecencies committed, the time span, the category of
the victims and the effects on them and psychiatric evidence that the prospect of
rehabilitation seems slim.
[24]
Under the contemporary requirements, the Crown relies on the length and
nature of your previous offending, the serious harm to the community, victims and
their families, and the psychiatric evidence as to the serious risk of your future
offending.
[25]
Should the appropriate sentence appear to be a finite one, the Crown relies on
Leitch and R v Jordan (CA136/92, 29 July 1992) and R v Ward [1976] 1 NZLR 588
in support of a submission that the finite sentence should be lengthened beyond what
might otherwise be regarded as appropriate to take account of the risk to the
community and the gravity of the offending.
8
Psychiatric evidence
[26]
Psychiatric and psychological reports dated 25 February, 12 March,
15 March and 28 April 2004 have been made available to assist in deciding on the
appropriate sentence. They have been of material help.
[27]
They show a background in which you say you were subject to childhood
sexual abuse from a stranger and two older brothers until you were about 17,
followed by a chequered employment career although you have been a sickness
beneficiary for a number of years.
[28]
They report your saying you have been bi-sexual throughout most of your life
with relationships with men or women being "whatever comes up". You told the
psychiatrist you now experience erectile dysfunction, possibly due to diabetes.
[29]
The psychiatric evidence is that you may possibly fulfil the criteria for
paedophilia.
[30]
With specific reference to the criteria in Leitch, Dr Evans draws attention to
eight factors giving rise to a higher risk of future offending including your previous
sex convictions, offending against males who are unrelated, coercion of your
victims, frequency and severity of offending and your denial of responsibility. The
possibility of your successfully participating in programmes in prison designed to
lower risk of re-offending is regarded as problematic in view of your denial.
[31]
Dr Evans was concerned about your denial of responsibility coupled with
your previous sexual offending, your change of demeanour when discussing the
present offences and doubts the accuracy of the information you supplied having
regard to your background.
[32]
Dr Evans' second report followed receipt of details concerning your previous
sexual offending. That included additional material testifying to your long history of
avoidance, denial, manipulative personality and lack of remorse.
9
[33]
Dr Evans' third report followed receipt of further information concerning the
present offending and recounts your vigorous denial of responsibility. Again, Dr
Evans stressed that there was a higher risk of future sexual offending having regard
to your previous offences, particularly with unrelated male victims.
[34]
The psychologist, who was furnished with much the same material, also
recorded your denial of responsibility and your continued belief the complainants
fabricated the allegations to get you into trouble knowing of your previous sexual
convictions. The psychologist particularly draws attention to the fact there has
always been a wide age gap between you and your sexual victims, a wide physical
disparity and that in each case you created some type of dependency: with a
"runaway" in 1987, a young employee in 1993, plying the 1994 victim with alcohol
and cannabis, with the bail arrangements for the victim S and the violence and
threats to your cellmate W. The psychologist also makes the point your sexual
offending has become increasingly violent with some grooming of your 1980s
victims, the "part of the employment" comment to the 1993 victim, the violence with
the anal rape in 1994, and the threats and actual violence in relation to the offences
for which you are to be sentenced. The psychologist's conclusion is :
Mr Clark's modus operandi consists of procuring young men, who are
physically weaker and in some need of assistance. Mr Clark is cunning in
creating situations that put the intended victim at a disadvantage. He
manipulates them by offering employment, shelter, liquor and sometimes
cannabis. Further he tries to assure their compliance via threats of physical
harm, his physical strength and violence. The level of physical violence
employed has increased over the years.
[35]
The psychologist also notes your unwillingness to participate in a sex
offender programme, your lack of remorse or guilt and your minimisation of your
offending or blaming of the victims throughout the period of your sexual offending.
Similar factors to those identified by the psychiatrist were mentioned by the
psychologist concerning future risk of sex offending including the escalation in
terms of violence and coercion to be seen over the period of such offending. It is of
some importance that the psychologist says :
The question, if Mr Clark's increasing age and medical condition (diabetes)
may act as protective factors regarding future sexual offending, cannot be
decided at this time. While Mr Clark indicates that his diabetes affects his
ability to have an erection and his libido, his most recent charges would
10
indicate that these difficulties do not at this time interfere with his
exploitative sexual offending. Furthermore, the nature of his past sexual
offending and choice of victims did not require a high degree of sexual
prowess.
The professional literature shows that risk assessments for future offending
are valid for relatively short timeframes. Given Mr Clark's situation it
would appear that he might receive quite a lengthy sentence. It is therefore
not possible to say at this point, if Mr Clark's risk will still be the same after
he serves such a sentence. Various factors including his health, response to
incarceration, possible participation in programmes etc could intervene to
change his current risk level.
That discounts the possibility that your age and health may have lessened the risk of
future sexual offending which in its turn affects whether preventive detention should
be imposed.
[36]
The psychologist's final conclusion is blunt. It is that you "pose a high risk
for sexual re-offending at this time" though caution is expressed as to the future
ability to predict recurrence. That mirrors the psychiatrist's views.
[37]
In light of all of that, should the appropriate sentence be one of preventive
detention, or a lengthy finite term coupled with a possible minimum period of
imprisonment?
[38]
In terms of preventive detention, there may well be a gloss in your case not
met in many others in that s153 requires consideration of whether you would have
been sentenced to preventive detention for the offending on S had you been
sentenced before 29 June 2002, that is to say whether your sexual violation of S
would of itself have justified a sentence of preventive detention, taking no account of
your offending against W.
[39]
That complication suggests it is better to consider whether your offending
against W justifies a sentence of preventive detention taking account of all factors
including your previous sexual offending with that, in its turn, including your
offending against S.
[40]
In relation to W, while a person whose personal history including offending
resulting in his being imprisoned for nine months for theft could not be regarded in
11
the same light as a young, unsophisticated boy, his fear of you and his feeling of
subjection to you throughout the time he was in the cell with you came through very
strongly in his evidence. Nightly you demanded he masturbate you. Nightly you
forced him to do so despite his protestations and repugnance. As it followed
lockdown, you knew his ability to complain to the authorities was extremely limited,
particularly in a prison setting with prisoners' attitudes to others making such
complaints. You were much bigger than he. Nightly you threatened violence to
him, threats you made good towards the end of the period. Finally, you subjected
and forced him to commit sexual violation by oral sex on you, again despite his
repugnance.
[41]
While the form of the sexual offending against W differed from any of your
previous offending apart from that against S, it exhibited the continuing pattern of
your offending against men much younger than yourself, in situations where they
were at significant disadvantage to yourself and could not complain or were
dependent on you, coupled with your determination that they comply with your
demands for your personal gratification.
[42]
In terms of sentencing, were your offending against W seen on its own, it
may be unlikely to have resulted in a sentence of preventive detention. However, if
it were first viewed in the context of your previous sexual offending, other than that
against S, preventive detention would be seen as a real possibility. It would then be
serious offending against young dependent men extending over a 16 year period,
displaying serious harm to all your victims and thus to other young men in the
community upon whom you could batten. The psychiatric and psychological
evidence indicates there would be serious risk of your future offending despite your
age and the period which would inevitably elapse before your release from a finite
sentence. All your sexual offending other than that against S exhibits a common
pattern of denial, minimisation and your blaming the victims. In that situation, the
appropriate conclusion might well be that preventive detention was the only sentence
providing adequate protection to society from someone who could be regarded as
posing a significant and ongoing risk to it.
12
[43]
However, when your offending against S is then put into the mix, a sentence
of preventive detention becomes much more appropriate. Again, although S, too,
could not be regarded as an ingenue he, too, was vulnerable, dependent on you for
his continued liberty and, as a result of your machinations, effectively imprisoned in
your home. You plied him with alcohol and drugs despite his addiction. You
repeatedly insisted on him giving you oral sex. Although you were charged only
with one count of sexual violation in relation to S and will be sentenced on that one
offence alone, the evidence was that the offence was repeated at your insistence on
four or five occasions despite his strong objection. On the last occasion, sexual
violation occurred through violence. The offending against S was accordingly of a
piece with the most serious offence against W — and that was one of the reasons the
counts were joined in the indictment.
Sentences
[44]
In light of that, the appropriate view must be that on the count of sexual
violation against W, and in the light of cases such as R v Harris (CA167/00 27 June
2000), the appropriate sentence is that you be sentenced to preventive detention as a
significant and ongoing risk to the community and to protect the community from
your offending.
[45]
Having regard to your previous offending, the repetitious nature of the
offending and the circumstances in which it occurred you are sentenced to 3 years'
imprisonment on each of the indecent assaults and 9 months imprisonment on the
common assault with all terms to be served concurrently.
[46]
Turning to the sexual violation in relation to S, it must be said that had you
been sentenced on that offence at the time the Sentencing Act came into force,
although preventive detention would have been considered, it is fairly unlikely it
would have been imposed. Although, as it turns out, you reoffended with W in a way
similar to the offence with S, so any risk of reoffending would have been borne out,
without the offending with W being taken into account your previous sexual
offending was of a different nature and, apart from the 1995 offence, of rather less
seriousness than the offending on S. Having regard to that, the appropriate view is
13
that a finite sentence be imposed on you for the sexual violation on S. Although this
was not the most invasive form of sexual violation - sexual violation by rape - the
circumstances of your offending in relation to S showed persistent offending over a
number of days on a vulnerable, virtually captive, heterosexual young man where his
protestations were overborne and where the resultant offending was grave.
[47]
It is well-recognised that there is no tariff starting-point for sexual violation
by unlawful sexual connection because of the wide variation in circumstance (R v A
[1994] 2 NZLR 129, 132; R v Tavinor (CA313/94 27 March 1995; R v Simmons
(7 September 2000 CA237/00); R v M (30 January 2003 HC Auckland T02309)
where the cases were reviewed). Sexual violation by oral sex is clearly more serious
and invasive than digital penetration where sentences in the range of four years or
thereabouts are not uncommon. Homosexual sexual violation by oral sex with
unconsenting heterosexual males is more serious still (Harris supra). On the other
hand, a starting-point for sentencing following conviction after trial on sexual
violation by rape of eight years is probably too high, though sentences in this area
have tended to firm somewhat since the case of A was decided a decade ago.
[48]
For sexual violation by unlawful sexual connection of this type, the
appropriate view is that the starting-point for sentencing should be of the order of 6-7
years imprisonment. There are no mitigating features of any significance. On the
other hand, there are major aggravating features. They include –
•
the repetitious nature of your demands and of the offences even though
you faced only one count of sexual violation on S at trial
•
the fact that S was effectively a prisoner in your home as a result of your
intervention at his Court hearing and was under your dominion
•
the fact that you plied him with alcohol and drugs, the threats of violence
and incarceration by which the offence was accompanied, your lack of
remorse and continued denial of the offending
14
•
the major factor of your previous offending including four previous
occasions of sexual offending of increasing seriousness
•
the fact that, having been paroled following imposition of a lengthy
sentence on you in 1995, you were re-called to prison in 2002 to protect
the safety of the community.
The finite sentence to be imposed must reflect the eight year sentence imposed on
you in 1995, though that was for a more invasive form of sexual offending.
[49]
In those circumstances the appropriate view is that from a starting-point in
the region of 6-7 years, the aggravating factors including your previous offending
indicates the appropriate sentence for the sexual violation by unlawful sexual
connection on S is 10 years imprisonment and you will be sentenced to that term.
[50]
The final aspect of sentence must be to fix a minimum term of imprisonment
of not less than 5 years as required on the imposition of a preventive detention
sentence by s89(1) having regard to the gravity of the offence or the safety of the
community in light of your age and risk posed.
[51]
As far as the offending against S is concerned, the Crown seeks the
imposition of a minimum period of imprisonment greater than one-third of the
sentence under s86 on the grounds that the circumstances take the offence out of
ordinary range of offending of that kind so that it qualifies as "sufficiently serious".
[52]
In relation to the offending against S, your release on parole after one-third
for the offence you committed and in the circumstances in which it was committed,
would constitute insufficient punishment, denunciation and deterrence (R v Brown
[2002] 3 NZLR 670; R v M [2003] 3 NZLR 481). This was prolonged offending of
a serious kind in the circumstances mentioned several times against the background
of considerable previous offending including serious sexual offending. A minimum
period of imprisonment before eligibility for parole in those circumstances is half the
sentence and a period of 5 years will accordingly be imposed.
15
[53]
As far as the sexual violation on W is concerned, to the factors mentioned in
relation to the minimum sentence for the offending on S, the offending on W should
be seen as further offending committed only nine months later, in somewhat similar
circumstances, against another young vulnerable man. That should be visited with a
longer period before you become eligible for parole (R v Ward supra). That period is
fixed at 10 years, coincidentally the minimum term which applied under the earlier
Act.
Summary
[54]
The upshot of all of that is that (Mr Clark, will you please stand) :
a)
On the sexual violation on S you are sentenced to 10 years
imprisonment concurrent with all other sentences but with a minimum
term of imprisonment of 5 years to be served before you become
eligible for parole.
b)
On the common assault on W you are sentenced to 9 months
imprisonment to be served concurrently with all other sentences.
c)
On the indecent assaults against W you are sentenced to 3 years
imprisonment on each, again to be served concurrently.
d)
On the charge of sexual violation by unlawful sexual connection in
relation to W you are sentenced to a concurrent sentence of preventive
detention with a minimum period of imprisonment of 10 years before
you become eligible for parole.
WILLIAMS J
13 May 2004
16