IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
CRI-2004-070-4342
THE QUEEN
0
V
TOKO MARCUS PEARSON
Charges:
I. Burglary
2. Injuring with intent to cause grievous bodily harm
Pleas:
Guilty
Counsel:
C Horsley for the prisoner
R G Ronayne with H Wrigley for the Crown
Sentence:
19 November 2004
Imprisonment:
I. 21/2 years
2. 4Y2 years
(Cumulative)
Minimum non-parole period 4 years 8 months
SENTENCE OF MACKENZIE J
'Yoko Marcus Pearson,
[1] You appear for sentence on one charge of burglary and one charge of injuring
with intent to cause grievous bodily harm. You pleaded guilty to these offences in
the District Court and jurisdiction was declined and you were referred to this Court
for sentence
[2]
The facts are that on the night of 16 July 2004 you had been drinking at
various bars in Tauranga. You had fried to talk to the victim of the offence of
injuring with intent on two occasions during the night but she bad ignored your
advances. Later, and early in the morning of 17 July, she and her friend were
sleeping in their car when she woke and went to use the public toilets. You saw her
entering the toilets and followed her. When she unlocked the cubicle she had been
using, you pushed her back into it and held her against the wall. She struggled.
During the struggle, you held her from behind and covered her mouth with your
hand. She broke free and attempted to escape, but you grabbed her again, causing
both of you to fall to the floor. Again you held her down. She escaped once more
and ran outside, but you caught her. You proceeded to punch her about the face with
closed fists at least five or six times. Finally she got away and ran to a nearby
building, where she called police. She was taken to hospital. She had severe
bruising to her face and head and bruising to both shoulders and upper back.
[3]
Meanwhile you had moved on to a residential area where you entered a
dwelling-house through an unlocked garage door. Two women were asleep in this
house. You removed your outer clothing and left that on the garage floor. You went
to the kitchen. You then entered an unoccupied bedroom. One of the women, who
was unaware of your presence, got up to have a shower. You went into the other
woman's bedroom. She was woken by the sound of the door opening. She turned
on the light, saw you and began yelling at you. You ran out of the bedroom and
away from the property, picking up your clothes as you went. That incident forms
the basis for the burglary charge.
[4]
When you were spoken to by the police, you admitted to the assault in the
toilets. In explanation, you said that you had seen the victim earlier in the night and
had got angry when she ignored you. You admitted punching her five times in the
head. You also admitted entering the dwelling-house. You said that you wanted to
touch a female occupant and masturbate. You also admitted that you intended to
steal any worthwhile property in the house, although no property was taken. You
showed some remorse and you ask that your regret be conveyed to your victims,
though you recognise this would be of little consolation to them.
2
[5]
On those facts the Crown submits that a sentence of preventive detention is
appropriate. You are over 18 years of age and the offence of injuring with intent to
cause grievous bodily harm is a qualifying offence for such a sentence. So you are
eligible for that sentence to be imposed. You have been advised of the fact that that
sentence is to be sought. Reports have been obtained from two professional
assessors as required. So I must consider whether that sentence should be imposed
on you. To impose it, I must be satisfied that you are likely to commit another
serious sexual or violent offence if you are released at the expiry of any finite
sentence that might be imposed. In considering that, I must take into account a
number of matters.
[6]
The first is any pattern of serious offending disclosed by your history. As to
that, in your 20 years, a good part of which has now been served in prison, you have
logged up some 33 convictions. Those include some burglary and property offences
in 1998. In 2000 you committed an aggravated assault and further dishonesty
offences. In 2001 you were convicted on 11 charges involving burglary, attempted
burglary, theft and an indecent assault upon a girl under the age of 12 years. That
assault was a serious one, as can be seen from the remarks of the sentencing Judge
on that occasion. He said:
All of this offending of course is serious. It involves breaking of
occupied properties at night; there are sexual overtones; the prowling
situation; and the most serious matter on 19 May of this indecent
assault on this seven year old girl when you touched her, you
masturbated against her leg, and you simulated sexual intercourse.
That offending occurred on bail. Effectively, as I have said, these
were prowling-type offences: you were entering homes by stealth and
you were either acting dishonestly or indecently.
[7]
From that there emerges a pattern of initially relatively minor offending,
steadily escalating in seriousness and changing in nature to include the sexual
element which has been apparent both in your conviction in 2001, for which you
were sentenced to five years' imprisonment, and the present offending. However,
while that is serious offending, there is not a history of such serious offending which
would ordinarily be present in a case where preventive detention was under
consideration.
3
[8]
The second matter that I must take into account is the seriousness of the harm
to the community caused by your offending. This is serious offending. There are a
number of aggravating features of it to which counsel for the Crown has drawn
attention. In relation to the injuring charge, that was premeditated and involved a
degree of stalking. The motive for it was slight, in that it involved your considering
that the victim had ignored you. You continued an attack notwithstanding her pleas
not to hurt her. She was in a vulnerable situation, and it involved a degree of
detention. She suffered some injuries and the attack appeared to have been sexually
motivated. On the burglary charge, that occurred shortly after the first attack. It
took place at night. It involved entry into a private dwelling, and it was sexually
motivated. Those offences have caused serious harm, as the victim impact
statements, which I have read, show. Nevertheless, again I consider that the harm
and the nature of the offences is at the lower end of the scale of what one would
expect to encounter where preventive detention is under consideration.
[9]
The third matter that I must take into account is any information indicating a
tendency to commit serious offences in future. Here your prognosis is bleak. The
psychological report which has been obtained gives an assessment of your potential
to re-offend. Three tests were conducted. The risk of re-conviction and risk of reimprisonment test by the Department of Corrections indicated a moderately high risk
of serious recidivism within five years of release, although the report author stresses
the opinion that that score under-estimates your risk of further sexual offending. The
Static 99 test indicated a high risk of sexual or violent re-offending after release into
the community. That probability is based on the static risk predictors which are
involved in that form of testing. The Sex Offender Need Assessment Rating test was
also conducted. The report writer notes that you indicated difficulties with sexual
self-regulation and general self-regulation, indicated that you had a preference for
younger women, and are most likely to come in contact with potential victims of
sexual offending during a burglary. The report writer notes that you recently
participated in the Kia Mamma programme. That programme has a high success rate
in terms of its treatment, and there are very low re-offending rates after participation
in it. But your offending occurred within seven weeks after completing that
programme.
4
[10]
The psychiatric report also assesses your risk of re-offending, and the writer
expresses the opinion that your behavioural profile indicates that you carry a high
risk of committing further crimes. He recommends that you receive close
supervision when you return back to the community and that you would benefit from
drug and alcohol counselling.
[11]
So on that factor which I must take into account the information indicates a
strong tendency to commit serious offences in the future.
[121 The fourth matter that I must consider is whether there have been efforts to
address the causes of your offending. The psychologist's report refers to your efforts
to address the cause of offending. He states that you want to return to Kia Mamma
for further treatment, that you did not get to finish the maintenance portion of the
programme and believe that this will prevent fiuther offending. However, as counsel
for the Crown has noted, there is a real question as to whether your acceptance of the
lessons learned from the Kia Marama programme is a real taking on board of those
lessons or simply an ability to verbalise what you have learned without drawing the
appropriate message from it.
[13]
The next matter that I must consider is the principle that a lengthy
determinate sentence is preferable if this provides adequate protection for society.
Your counsel submits that this indicates that a sentence of preventive detention is a
sentence of last resort. That is not the position as the decisions of the Court of
Appeal in R v Leitch [1998] 1 NZLR 420 and in R v C [2003] 1 NZLR 30, to which I
have been referred, make clear. Nonetheless it does clearly indicate that, where
protection can be provided adequately by a lengthy determinate sentence, that is to
be preferred.
[14]
There is one factor in your case which, in my view, would make a
determinate sentence preferable if that were consistent with adequate protection, and
that is your age. It would be a very serious matter to subject you to an indeterminate
sentence and to recall for life at your comparatively young age if that can be avoided.
As your counsel submits, it would be a crushing psychological blow to impose such
a sentence on you. Any hope that there may be of remedy of your situation would,
5
in my view, be crushed out by the imposition of such a sentence. At your age there
must be the prospect that you are not so set in a pattern of conduct as to be beyond
the hope of change.
[15]
So, weighing all those factors up, I am satisfied that preventive detention
should not be imposed in your case. Your bleak prognosis for likely re-offending is,
in my view, outweighed by your age and the fact that this offending, and your
previous offending, though serious, is not of the seriousness usually found where a
sentence of preventive detention is imposed. And so, while I recognise the high risk
of re-offending, I consider that this offending should be met with a finite sentence.
[16]
You must understand that this is a final chance. You must change your
attitudes and take on board the treatment programmes that you will receive. You
have sufficient intelligence and understanding to be able to take those messages on
board. What is required is a change of attitude so that you have a willingness to take
those on board. In not imposing preventive detention on you, I am expressing the
hope that you are able to take those messages on board. You have all your life
before you if you do. If you do not, your prospect is bleak indeed. I would ask that
these remarks and the reports be drawn to the attention of the prison authorities so
that whatever treatment is available can be made available to you. The
psychologist's report notes that you could benefit from a programme but that he is
not aware of any such programmes available. It is to be hoped that steps can be
taken in your situation to devise the best possible available treatment options for
you.
[17]
So, because I am not going to impose a sentence of preventive detention upon
you, I must consider what the finite sentence should be. These offences, though they
were committed on the same night, were quite separate. They require to be dealt
with by cumulative sentences.
[18]
I deal first with the charge of injuring with intent to cause grievous bodily
harm. I have already described the features of that offending. The injury caused or
likely to have been caused is at the lower end of the scale of grievous bodily harm,
and no weapon was involved, but the sexual overtones add a serious dimension to
this offending. I have already referred to the effect on the victim.
[19]
The only mitigating factors are, firstly, your guilty plea and, to a minor
extent, your age.
[20]
I consider that an appropriate starting point for that offence, having regard to
all the features of the offending and before taking into account your personal
circumstances, both aggravating and mitigating, is six years. From that starting
point, allowance must be made for factors personal to you. The aggravating features
are your pattern of previous offending and the fact that this offending was committed
while you were on parole. Those aggravating factors would justify an increase, but,
in my assessment, that must be balanced to a limited extent by your age. The only
factor calling for a credit is your guilty plea. I consider that an appropriate
allowance, having regard to all of those aggravating and mitigating personal
circumstances, is 18 months from the term of six years which I have identified.
Accordingly, you will be sentenced to imprisonment for four and a half years on that
charge.
[21]
Turning to the burglary charge, the most serious element of this offending is
the sexual overtones. It has had a considerable effect on your victim, very
understandably. I consider that an appropriate starting point, again taking into
account the features of the offending but before considering your personal
circumstances, is three and a half years.
[22]
As to your personal circumstances, again the only factor calling for a
reduction is your guilty plea. Here I consider that an appropriate discount is one
year. Accordingly, you are sentenced to two and a half years on the burglary charge.
That is cumulative on the sentence on the injuring charge, so that the total sentence
imposed is seven years.
[23]
I must consider whether to impose a minimum non-parole period. I may do
so if I am satisfied that the circumstances of the offence are sufficiently serious to
justify that course. In your case I am satisfied that it is necessary. Though I have
7
held that preventive detention is not justified in terms of necessity for the long-term
protection of society, a period of immediate protection, such as would be given by a
minimum non-parole period, is required. The maximum period that I can impose is
one of two-thirds of the sentence. I consider that that is appropriate in your case.
That gives an overall minimum period of four years and eight months. That is made
up of a minimum period on the injuring charge of three years and on the burglary
charge of one year and eight months. So that is the sentence that I impose upon you.
A D MacKenzie J
8