IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
T No. 5/02 (Napier Registry)
T No. 898/02 (Wellington Registry)
THE QUEEN
V
JULES PIERRE NICOLAS MIKUS
Counsel:
J G Krebs for Crown
S J Gill for Prisoner
Sentence:
1 November 2002
At Wellington
SENTENCE OF GENDALL J
Solicitors:
Crown Solicitor's Office, Napier
Gill & McAsey, Lower Hutt for Prisoner
[1]
Jules Pierre Nicolas Mikus you appear for sentence having been found guilty
by a jury of the crimes of murder; sexual violation by rape; sexual violation by
unlawful sexual connection occasioned by connection of your penis with a child's
mouth and abduction of that child.
[2]
The facts upon which I sentence you are as follows. On the morning of
19 June 1987 a six year old child named Teresa Cormack left her home in Napier to
go to a local primary school. She turned back from the school and for a period that
morning wandered in the streets of that neighbourhood but never got back home.
You abducted her from the streets intent upon sexually violating her. You raped her
and performed other sexual indignities on her at a place unknown. You then
murdered her and hid her body in a secluded place on a remote ocean beach north of
Napier. You killed her so as to avoid apprehension and the inevitable consequences
that would follow. Her body was found eight days later.
[3]
For 14 1/2 years you escaped being brought to justice. But this eventually
resulted when forensic science was able to catch up with you. Analysis of semen
samples taken from the child's body, together with three hair samples from her
mouth and panties provided compelling evidence. The jury heard other evidence of
a circumstantial nature concerning sightings of you and the child at the time, together
with statements made by you to friends much later in which you bragged about
having committed murder and "got away with it". The evidence upon which the jury
convicted you was compelling and fully justified the convictions. At the time of the
child's murder you were one of many interviewed by the Police as possible suspects,
but you presented what you thought was an alibi for a short period of time on the
day. The fact remained, however, you were (and I am satisfied that it was you)
prowling in the area of this and other schools before 9.00 am on the morning of
27 June, and you later returned to that area sometime after 10.00 am to snatch this
child, probably sometime around 10.20 - 10.30 am.
[4]
No amount of words can minimise the gravity of your appalling, despicable
actions that involved wicked sexual violation of a child of tender years, lured from
the street, and you took her life to save your own skin. I do not intend to dwell on
the facts further. These are fully canvassed in the notes of evidence given at trial.
They sadly fall into the very worst end of human depravity.
2
[5]
You continue to maintain innocence, a common stance for you, as you
adopted it on previous occasions when facing trial in 1983 and 1984. You then faced
trials for the sexual crime of assault with intent to rape. You put forward a spurious
alibi which was rejected by two juries.
[6]
As I have said there is evidence of your bragging about having got away with
the crime, as you must surely had thought you did, until your apprehension 14 1/2
years later. Well, you have now been called to account, and your day of reckoning
has come. Yet you show no remorse or contrition, as was the case when you were
sentenced in 1984 for your crime then.
Aggravating features
[7]
There are many. They include the totality of the offending encompassing
kidnapping, two sexual crimes and the ruthless murder of a defenceless child so as to
avoid your apprehension. Your actions fall into the category of atrocious crime and
in your case the top end of the scale has surely been reached. Further aggravating
features are the fact that you have, as of now, a total of 78 previous convictions. As
at the time you committed these crimes you had a total of 29 convictions. They
represented 3 for indecent assault on girls aged between 12 and 16; 1 of assault with
intent to rape; 1 of sexual intercourse with a girl under the age of 12 (she was
aged 6); 4 convictions for sexual crimes occurring when you were aged 15-24. You
also have multiple convictions for theft, burglary and other miscellaneous crimes.
Terms of imprisonment, borstal, periodic detention and probation had been to no
avail.
[8]
Since you committed these crimes in 1987 you have not been convicted of
any sexual crimes. I suspect you well knew that as your blood samples had been
taken in 1987 and offending of a sexual nature might be more easily detectable given
that the Police had a sample already from you. However, in the intervening period,
you still accumulated 49 convictions, some of which are for less serious offences
such as motor vehicle offences; breach of periodic detention; failing to answer bail;
wilful damage; disqualified driving. But there are offences of fraud and dishonesty;
4 for driving with excess breath alcohol; 5 for drug convictions including cultivating
3
cannabis and producing cannabis oil; 11 for disturbing and offensive use of a
telephone; and a conviction for bigamy.
[9]
So since you committed the crimes upon Teresa in 1987 you have sponged
off the taxpayers of New Zealand, having avoided apprehension, and committed
49 further offences across a wide range of criminal, drug use and illegal activity.
Mitigating features
[10]
I am required to consider these. I regret to say there are none. There are
absolutely no redeeming features about your offending or past history. That is a
dreadful thing to have to say about a fellow human being but it is true. References
are made to personality problems and an unhappy childhood upbringing, but they are
not really mitigating matters, given that you deny your sexual offending. They are
no more than excuses offered by you for crimes you say you did not commit. You
are described as a pathological liar and I regard your claims skeptically.
Personal circumstances
[11]
I have had access to probation officer's reports of 1983 and 1984 when you
were before the High Court in Wellington for sentence on a charge of assault with
intent to commit rape. I also have psychiatric and psychological reports and
opinions on you. They record your family, education, employment and behavioural
history. You were unemployed from mid 1982 so it seems you have not worked for
20 years, and enjoyed the benefits of the New Zealand Social Welfare system. The
probation officer's report then described you have being of low/average intelligence
having then had four previous terms of imprisonment for various crimes. It refers to
you having in the previous 10 years, four Court appearances for sexual assaults on
young girls and despite being placed on medication you re-offended and continued to
offend living, it is said at that time:
"He lives to some degree in a "fantasy world". He has committed
four previous offences of sexual assault of young girls, and in view of
that and the previous factors, it is considered that he is in need of
psychiatric assistance."
4
But you have not taken such assistance and you could not have been forced to take it.
You cannot be forced to take it now. As matters now stand you remain in need of it
but the short point is that despite society's best efforts you refuse to acknowledge,
when apprehended, your paedophilia, criminal fantasies, inclinations and actions.
There was evidence which I ruled ought not been led before the jury, which
unquestionably supported the fact that you harboured perverted and dangerous
fantasies.
[12] The current probation report I now have makes disturbing reading. The
officer says:
"Jules Mikus is assessed as having no motivation to address ...
contributing factors, as he denies any involvement in the offending
and does not acknowledge any need to change his behaviour. This
continues to maintain his risk of re-offending at a high level."
and
"When asked about the DNA evidence in relation to the current
charges Jules Mikus stated 'the DNA is a load of shit'.
He also denied all his previous convictions for sexual offences saying
that he had been framed."
and in dealing with your motivation and readiness to change, the report
states:
"MOTIVATION AND READINESS TO CHANGE
As Jules Mikus is denying the charges he has no insight into what
drives his offending or what factors he needs to target to reduce his
risk of re-offending.
Jules Mikus is assessed as having a high risk of re-offending. This is
based on his criminal history, which contains previous sexual
offending of young females, his lack of insight into what drives his
offending, no reported motivation to change and his continued denial
of the current offences.
Jules Mikus presented as an individual who knew it all and had all the
answers about why he was in this current predicament and who
should/would be ultimately held responsible for this, and many other
miscarriages of justice.
Until his world view is larger than himself, it will be difficult to
provide any rehabilitation that Jules Mikus will want to participate in
and benefit from."
5
These are matters which I will return when considering the question of preventive
detention.
[13]
I need to say something about the sentencing of you in 1983/84. You
pleaded not guilty to the charge of assault with intent to commit rape and were found
guilty twice, having had a retrial. You were initially sentenced to 3 years'
imprisonment which, effectively, was re-imposed on your later conviction and you
were directed to undergo psychiatric treatment. You could not then, or now, be
forced to take that. Lest there be any criticism from some quarters directed at the
sentence at that time imposed, it needs to be clearly understood that at that time the
Criminal Justice Act 1954 applied. The maximum term of imprisonment for the
particular crime which you faced, was a term of 10 years. One of the sentencing
Judges said that had you been but a little older you would have qualified for a term
of preventive detention. He then said that means "that you could be sent to prison
for an offence such as this, indefinitely, and would not be released for at least
7 years. I am saying this to you to indicate to you the seriousness of the position at
which you have arrived in life". But a sentence of preventive detention was not
available to those sentencing Judges as you had not, by a margin of a few months,
reached the age of 25 years. That was the statutory provision that Parliament
required at that time.
As to your victims
[14]
They are multiple and, as is always the case with murder, victims extend far
beyond the person whose life has been taken. I have received victim impact
statements from the parents of Teresa. The Court is required to look at the
circumstances outlined and take into account the effects on victims. Those reports
make poignant and disturbing reading. A much loved, innocent and vibrant
daughter, granddaughter and sister was taken without warning by your atrocities.
The anguish and torment Teresa's parents and relatives felt, continued to feel for
many years, and still feel, cannot be adequately expressed. They endured the agony,
distress and grief with a dreadful sense of loss. In addition they spent over 14 years
in a state of bewilderment and justifiable anger that their daughter's killer was free in
the community enjoying life which he had denied their child. Little wonder that they
agonised. You have given to them their own emotional life sentences which will
6
remain forever. If you have any sense of decency or human compassion you had
better reflect upon the dignity and courage of these two parents when you serve your
sentence for the rest of your life. Their courage is in direct contrast to your
cowardice.
[15]
But the reports about you that are before me indicate that you are interested
in no one but yourself, and have neither the courage nor the insight to even say "I am
sorry". Apart from Teresa's parents and others I do not forget the appalling impact
that your actions had upon Teresa's grandfather. It was he who had to identify the
child's dead body a week after her disappearance. It was he who agonised with his
daughter, and son-in-law and others in the family because for years you got away
with it, or so you thought. He died never having had the satisfaction of knowing that
his granddaughter's killer had been brought to justice.
[16]
The sentencing process is not one of revenge or retribution. It must be a
civilised process that applies the proper principles required by law and those laid
down by Parliament. In your case there may be room for some to have strong
emotions, but vengeance must play no part.
[17]
One of the purposes of sentencing is to hold you accountable to the victims.
To their everlasting credit Teresa's family only seek justice for you. Justice may
often be tempered with mercy in appropriate situations, but there is no room for a
merciful sentence in your case. Your crimes were depraved. Your current attitude is
lamentable. You deserve the condemnation and denunciation of society and Teresa's
family.
Sentence
[18]
What then is the proper sentence for you? For the crime of murder that is
easily answered, and you must be sentenced to a term of life imprisonment. Under
the new Sentencing Act 2002, s.154 provides that where an offender is sentenced for
a crime of murder committed before 1 July 2002 he must be sentenced under the new
Act. That provides that if a minimum period of imprisonment is not imposed, an
offender shall serve a minimum period of 10 years in terms of the Parole Act 2002.
However, the Sentencing Act 2002 also provides in s.6 that:
7
"An offender has the right if convicted of an offence, in respect of
which the penalty has been varied between the commission of the
offence and the sentencing, to the benefit of the lesser penalty and
that provision applies despite any other enactment.
That means I cannot do other than Parliament has permitted and I am not able to
impose upon you a minimum period of imprisonment of the length warranted. But I
make it clear that there is no release date as of right for a life sentence and it remains
over you for your life.
As to preventive detention
[19]
Although your crimes were 15 years ago, under the new Sentencing Act 2002
you are liable to preventive detention. That is because it provides that if a person has
been convicted of a specified offence (and sexual violation by rape is such an
offence) before the Act commenced, and the sentence of preventive detention under
the Criminal Justice Act 1985 would have been imposed before 1 July 2002, that
person may now receive such a sentence. You were eligible for preventive detention
in 1987 when these crimes were committed. You were over 25 years, you had
committed a qualifying sexual offence. Looking at the nature and gravity of your
offending over many years; the category and ages of your victims; the absence of
any response by you to rehabilitative efforts; your absence of remorse or acceptance
of responsibility; your predilection for offending; and the need to protect society;
you were then a prime candidate for preventive detention.
[20]
The Court is now required to take into account the pattern of serious
offending disclosed by your history; the seriousness of harm to the community
caused by your crimes; information that I have which indicates a tendency to commit
serious offences; the failure by you to meet the cause of your offending; and whether
a lengthy determinant sentence is preferable, if it would provide adequate protection
for society. In terms of s.88 of the Sentencing Act 2002 I have obtained and
considered reports from two psychiatrists about the likelihood of your committing
further qualifying sexual or violent offences. You have been notified that a sentence
of preventive detention will be considered and your counsel has had sufficient time
to prepare submissions. Psychiatric assessment in the reports which I have now
received and considered express some disturbing views. From these it is clear to me
8
that you have personality traits associated with a higher degree of risk for reoffending both violently and sexually. These include in particular your tendency to
pathologically lie, a trait which appears to have been present from a young age, your
ability to deceive and manipulate people with apparent absence of any remorse or
guilt, impulsivity, irresponsibility, failure to accept responsibility for your actions,
and an adult criminal record which involves convictions for many different types of
offences. The expert opinion is that in denying any culpability for the current
offending, and denying any deviant sexual fantasies, at this stage you would be
unsuitable for any form of sex offender and/or violence treatment programme. This
therefore indicates that unless you change your attitude in the years that follow, you
will not benefit from the rehabilitative effects of any of these programmes if released
into the community at the present time. You would attract a high risk of reoffending if in the community.
[21]
The psychiatrist advised me that you exhibited almost complete denial with
regard to the vast majority of your offences. Moreover, you tended to rationalise
those crimes that you did admit to. Your denial and rationalisations were consistent
with you lacking remorse for your offending are consistent with distortions
commonly seen in sex offenders. They are believed to be key factors in maintaining
offending behaviour.
[22]
You also have stated that you are innocent of all the sexual offences you have
been convicted of, and have never committed a sexual offence. You say that the
conviction for assault with intent to rape in 1984 arose despite you having a
"concrete alibi" and that you would be taking the Police to Court over it.
[23]
Mr Mikus let me disabuse you of the nonsense that you talk. You were
convicted twice by a jury in 1983/84 and you served your sentence. Your other
sexual crimes are well documented. You were unquestionably guilty. If you "know
it all" as the Probation Officer suggests, you had better stop deluding yourself now
as to your criminal, paedophiliac behaviour, because you deceive no one.
[24]
The second expert opinion I have received from a clinical psychologist
supports the view that you possess a significant number of indicators of future
violent and sexual offending. These include early mal-adjustment, perpetration of
sexual violence in the past, instability of your personal life, substance misuse, a
9
disordered personality, and low level intellectual functioning. It is not possible to
know how those risk factors might change in the future. However, given the strength
with which you currently deny clearly established paedophilic sexual drive, and
consistently articulated disinclination towards receiving help for this, that expert's
opinion is that your risk of committing a serious violent or sexual offence is high and
will remain so for a considerable period of time.
[25]
I would unhesitatingly have sentenced you to preventive detention if I had
been dealing with you before July 2002. By a wide margin you qualify for
preventive detention whether applying pre July 2002 or current principles. I have
not the slightest doubt that the safety of the community requires that you be
imprisoned indefinitely under a sentence of preventive detention. Beyond doubt
there was then a substantial risk that you would commit a specified offence upon
release from any fixed or determinate sentence. It exists now and it seems for the
foreseeable future. Female children must never be at risk from you again.
Preventive Detention is the proper sentence for you. It is an indeterminate sentence
and has no statutory release date. It remains for your life. Lest anyone be under any
illusions about what this means, it is that your sentence of preventive detention like a
life sentence is indefinite imprisonment, so that there is no release date. Release
before the end of your life can only be made by the Parole Board in terms of s.28 of
the Parole Act 2002, but only if it is satisfied that you will not pose an undue risk to
the safety of the community on release. Parliament has said that you have to satisfy
the Board and as matters stand at the moment, and in view of the opinions in the
reports that I have, I cannot envisage anyone ever releasing you.
Minimum non parole periods
[26]
The new Sentencing Act 2002 provides for the imposition of what are called
"minimum periods of imprisonment" Parliament has given the direction that
sentencing for murder and preventive detention must be made pursuant to the current
Act. But Parliament enacted s.6 to which I have referred. It prevents a Court from
imposing a penalty more severe than that which applied at the time of the offending.
The fact that there has been, since 1987, the introduction of minimum periods of
imprisonment in the sentencing process is a variation of penalty which I am not
permitted to apply to the disadvantage of an offender. So my hands are tied. But
10
Parliament has also said that the Court must, when imposing a sentence of
preventive detention, impose a minimum period of imprisonment. So I have to do
this, but cannot make it greater than the 1987 penalty. At that time eligibility to be
considered for parole for life sentences and preventive detention was set at 7 years.
The minimum period of imprisonment that must be imposed accordingly in respect
of the sentence of preventive detention, as Parliament has required me to do, can
only be 7 years, that being the time that applied in 1987. I make no order in respect
of the life sentence for murder.
[27]
I do not for one moment consider or suggest that that period is appropriate as
indeed it is not, or that you would be then released. If I had the power I would have
imposed a minimum term of imprisonment of such a length that the women and
female children of New Zealand would never again be put at risk by you. Comfort
can be taken from the fact that under the Parole Act 2002, as I have said, there is no
release date in respect of the sentences for life and preventive detention, and they
will remain for the rest of your life. You would only be released on parole if you did
not pose an undue risk to the safety of the community, and Parliament has entrusted
that task not to the Courts but to the Parole Board. Your present attitude and refusal
to accept any need for rehabilitative measures, if it remains, means that you will not
be able to satisfy the Board you should ever be released. If you have the temerity to
seek parole, I direct that my sentencing remarks and the psychiatric, psychological
and probation reports be placed before the Parole Board.
As to finite sentences for the other crimes
[28]
The crimes of sexual violation by unlawful sexual connection, that is, oral
connection with your penis, and abduction, (counts 3 and 4) require sentences also.
They will be academic because no sentence can be imposed cumulatively with life
sentences or preventive detention. But I can impose concurrent sentences and I
propose to do so. Your crimes require emphatic denunciation on behalf of the
community. You enjoyed the benefit of 14 1/2 years' freedom bragging to some of
your ability, so you thought, to get away with murder. The victims faced that period
not knowing if the killer of their child would ever be brought to justice. I have
spoken of the agony they endured over that period together with the anger,
frustration and obvious resentment that someone may have got away with these
11
crimes. You stole from them their daughter and you stole from society 14 years in
which you have lived at the expense of the community, continuing to commit
multiple crimes, although thankfully not anywhere near the seriousness of those
which you now face.
[29]
The sentencing principles enable, and indeed require, the Court to in terms of
s8(c):
"... impose the maximum penalty prescribed for the offence if the
offending is within the most serious of cases for which that penalty is
prescribed, unless circumstances relating to the offender make that
inappropriate."
In your case the maximum penalty in 1987 for these two crimes was 14 years'
imprisonment. It has now been increased to 20 years' imprisonment in respect of
sexual violation, but because of s.6 of the Sentencing Act 2002 I am restricted to the
lesser penalty. This offending is within the most serious of cases when all the
circumstances are viewed. You stole 14 years of life for yourself from the
community, and from your victims, as you escaped justice. It is proper that you be
sentenced to the maximum terms of imprisonment for these crimes, symbolic of
course, but to mark society's denunciation and outrage. I propose to do so.
Finally
[30]
I wish to make some brief remarks in relation to the Police and prosecution
authorities. The community owe a debt of gratitude to countless numbers of Police
Officers who spent thousands of hours seeking the criminal who killed this child.
That the Police and the scientific team at ESR never gave up, despite formidable
odds, is a credit to all of them. You thought you had beaten them but you did not
count on their dedication. They could not have successfully prosecuted you until
recently. They deserve the commendation of the community.
12
Accordingly
[31] The sentence I impose, which are the maximum available to me, are as
follows:
(a)
In respect of the crime of murder you are sentenced to life
imprisonment.
(b)
In respect of the crime of rape you are sentenced to preventive
detention. That indeterminate sentence is subject to a minimum term
of imprisonment, as existed in 1987, of 7 years. But as I have said, I
do not for one moment expect that the Parole Board would release
you on parole after that period and if at any time they might be
considering the issue of parole, I direct that my sentencing remarks
and the psychiatric reports be before them.
(c)
In respect of the crimes of unlawful sexual connection and abduction,
you are sentenced to 14 years' imprisonment on each count. All
sentences are, as they must be, concurrent.
J W Gendall J
13