IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CRI-2004-070-4342 THE QUEEN 0 V TOKO MARCUS PEARSON Charges: Pleas: Counsel: Sentence: I. Burglary 2. Injuring with intent to cause grievous bodily harm Guilty C Horsley for the prisoner R G Ronayne with H Wrigley for the Crown 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