1D37
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IN THE HIGH COURT OF NEW ZEALAND
NAPIER REGISTRY
1 (0
T 26/93
QUEEN
LANCE RICHARD HARBOUR
Sentence:
Counsel:
22 June 1994
G L Lang for Crown
E R Fairbrother with A Martin for Prisoner
SENTENCE OF McGECHAN J
Lance Richard Harbour you appear for sentence upon one charge of
burglary under s241(a), the maximum sentence for which is 10 years; one
of kidnapping under s209(1)(a), maximum sentence 14 years; one of
injuring with intent to injure under s189(2), maximum 5 years; and finally
one of sexual violation by unlawful sexual connection, maximum 14 years.
I record immediately that the charge date was 9 June 1993. At that date
the maximum penalty for sexual violation was 14 years. The increase
since to 20 years is not applicable. I record also that because of the charge
date the sentence of preventive detention is not available.
The brief facts are these. On the night of 9 June last year, or the early
hours of 10 June, you broke into a house in Flamnere by removing an
aluminium window, that is the burglary; and picked up a sleeping 3 year
old boy out of his bed and took him away to a wasteland area nearby, that
is the kidnapping; you then hit him or kicked him about the head causing
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facial bruising and cuts to the lips and possibly unconsciousness, that is the
injuring; and you sexually violated him by pulling him with his back
towards you down on to your penis. I am satisfied on the evidence it was
penetration in that form, and not penetration by an object. The boy
sustained fissures around the anus and there was also scrotal damage,
which indicates considerable force was used. The scrotal injury produced
in the process was later to require a degree of surgery. You then
abandoned him in the wasteland, and he wandered into a neighbouring
orchard; or possibly you took him into the orchard, and abandoned him
there. He was found the next morning wandering there, without any
trousers on, in cold conditions.
For once I have an appropriate victim impact report by way of a child
psychologist's assessment up-dated to this month. Fortunately the boy
does not recall the actual offending. He was stunned and shocked
nevertheless when found. He received appropriate care, and has been
receiving ongoing counselling. The psychologist's view, which strikes me
as realistic, is that inevitably as time passes he will learn more about this
matter from others and will need further assistance to learn to live with it.
His mother notes a change of personality including developing aggression
and destructiveness and moodiness, with a lack of discipline, and what she
regards as an unnatural interest in genitalia. His natural father notes
aggression and a tendency to mood swings and a fear of the dark and of
monsters. The psychologist's report views the offence as extremely
serious for the victim's health and well being. Only time will tell, and one
hopes for the best, but there is room for real concern as to psychological
damage caused.
I note your personal background so far as known. You are now 32. You
were aged 31 at the time. You are married with children. It has been a
difficult time for you all but your wife, and to her credit, has stood by
you. You are a seasonal worker. As a result of problems following your
arrest, including damage caused maliciously to your house, and I am
willing to assume related to your arrest, you have lost your house in a
mortgagee sale and have ended up with a considerable debt. You have
nothing from which any form of reparation could be made. Clearly you
have come from an unhappy and disadvantaged background, from'a very
large family. You claim verbal and physical abuse by your father, and it
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is said that you lacked friends and performed poorly at school and had
many job changes in the years which followed. The reasons for the
multiplicity of jobs given by you are viewed somewhat cynically by the
probation officer, but I leave the matter at that.
You have some relevant previous offending. It has been canvassed in
some detail by the Crown. It is sufficient to say that it includes, in March
1983, an offence of assault on a female which involved grabbing a woman
walking along a stop bank. In March 1984 an incident of obscene
exposure. Also in March 1984 a more serious incident of burglary by
entry into a house, and assaulting a woman who was present in the house,
with some overtones of sexual invitation. It involves a burglary in 1985 in
company of others, involving a building rather than a domestic dwelling,
and finally a sentence in 1989 relating to offending in 1988 which involved
a burglary and indecent assault and a burglary with weapon. Those latter
offences committed in mid 1988 involved some bizarre elements. You
walked into an elderly woman's bedroom and fiddled with the front of
your trousers; you then walked into another woman's home, armed
yourself with a bread knife, and demanded she show you her genitals; she
sensibly did so and escaped. You were overpowered and sat on the floor
saying you were sorry until the Police arrived. There are some clear
indications that at least at that time you were in a disturbed state of mind,
and you claim to have been affected by so-called spiked drinks. The
offending to this point has been heterosexual. There is no previous
homosexual attack known.
Your exact psychiatric state then and now is now a matter of some doubt.
A report associated with the sentencing in 1989, dated 22 August 1988,
concluded that you were not suffering from any treatable psychiatric
illness, but it also stated there was something "odd" about the nature of the
offences, which invited further investigation. However, as at 4 September
1989 no further in-put was seen as necessary by the psychiatrist. A report
specially ordered for this sentencing, dated 16 June, on that background
and on the basis of one interview, finds no evidence of mental illness and
on your account, as given, which the psychiatrist expressly does not
guarantee as true, finds no evidence of sexual deviation or paedophilia.
The psychiatrist says the matter of sexual orientation could well do with
further investigation at a future stage. Given the bizarre conduct in the
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past, and the somewhat hurried and qualified nature of this latest report, I
consider there may be elements which do require further investigation. I
can only regard the position as uncertain.
A further feature of the reports obtained is your tendency to find excuses
for conduct you have been involved in in the past. The probation officer
reports that you seem unable to admit offences without great modification
or rationalisation. There is the matter of the spiked drinks asserted, to
which I have referred, and there is also a reference to your saying a
woman attacked looked very like your mother-in-law. You are reported,
and it is confirmed today, as being unable to accept the verdict in this
case. Clearly you do not, as a person, find recognition you have been
wrong and remorse easy. That of course can have implications for the
prospect of reformation and as to risk of reoffending.
The matter has its serious aspects. It involved entry at night into a
domestic dwelling; the carrying off of a helpless child aged only 3; the
beating or kicking of the child around the head, possibly to a point of
unconsciousness; considerable force used with the sexual violation; the
abandonment of the child on a cold winter night; the previous convictions,
as far as they go, of a sexual nature; and the psychological damage, to say
nothing of previous physical injury, inflicted on the child.
There are, in my view, some mitigating circumstances. Particularly it is a
first offence of sexual violation as such, and of kidnapping. As a fact,
although not necessarily due to your own concession, it was not necessary
for an attempt to be made to call the child to give evidence, causing
additional trauma; and there is the damage to the home, which was
criminal damage, and resulted in severe financial loss to which I have
referred.
When I come to sentencing principles it is clear, of course, there must be
imprisonment. With a sexual violation charge, and an injuring charge,
there is no other option to be considered. The other charges also warrant
that course. Clearly I must look not only at the four individual offences
but also at the gravity of the total offending; burglary, kidnapping,
injuring, sexual violation as a whole and interrelated. There is a clear
need in this case for a sentence which will protect the public against a
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perceptible risk of reoffending. There is a need for a strong personal
deterrent, as well as some need for a general deterrent. There is some
room for retribution when in combination with other factors of that
character. On the other hand, it is important that the Court not be carried
away by local hysteria, or by disgust.
Your counsel referred in particular to R v R (1990) 6 CRNZ, 370 (CA) as
a suitable benchmark. The sentence upheld in that case, on somewhat
different facts, was one of 12 years imprisonment. The submission was
that cumulative sentences would not be appropriate on the facts, and that
there was room for a worse case, so justifying a sentence less than the
maximum. Counsel for the Crown referred the Court to a range of
authorities: R v Reekie (unreported) High Court, Auckland, S101/93, 29
June 1993, Temm J; R v R (1990) 6 CRNZ, 370 (CA); R v Mackie CA
126/89, 3 July 1989, (CA); R v Mania [1992] 3 NZLR, 513; R v Heta
CA 173/86, 29 October 1986 (CA); R v Bradley [1979] 2 NZLR 262,
263; R v Strickland (1989) 4 CRNZ 632; and R v Piro CA 328/92, 9
December 1992 (CA). As a single, as opposed to cumulative, sentence
matter the submission was that on the authorities the appropriate sentence
range was from 10 to 13 years. The submission, however, was that it was
an appropriate case in which to view the offences as distinct, and to treat
the matter as a cumulative sentencing case, requiring a totality in excess
of the maximum for sexual violation, namely in excess of 14 years.
I view this as a case involving one ongoing transaction. I view it as a case
where concurrent sentencing is appropriate. It is not a case, on its facts,
for cumulative sentencing, which is appropriate for distinct offences not
interrelated. It is a case, in my view, for concurrent sentencing with a
severe lead sentence. However, I do not view it as the worst case possible
of its type, when one bears in mind the possibility of serial sexual
violation, gang sexual violation, or sexual violation by offenders with a
serious previous history of such sexual violation. It is not quite in that
category. While I do not necessarily accept the analogy with R v R supra,
pressed as a benchmark, I consider 12 years imprisonment to be the
appropriate lead sentence.
On the charge of sexual violation you are sentenced to imprisonment for
12 years. On the associated burglary and kidnapping charges you are
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sentenced to imprisonment for 5 years. On the associated injuring charge,
which I view seriously in view of the head injuries inflicted, you are
sentenced to 4 years imprisonment. All sentences are concurrent. The
sentences are imposed on the basis that time already spent in custody,
some 12 months, is credited administratively. Stand down.
ils
R A McGeehan J
Solicitors:
Crown Solicitor's Office, Napier
E R & PA Fairbrother, Napier for Prisoner