IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CRI-2018-096-001655
[2020] NZHC 2793	

THE QUEEN	

v	

GAVIN TROY SMITH	

Hearing:	23 October 2020	
Appearances:	S C Carter for the Plaintiff
B Crowley/A Dye for the Defendant	
Judgment:	23 October 2020	

SENTENCING OF COOKE J

[1]	Mr Smith appears for sentence for charges of sexual violation by unlawful sexual connection1 and indecent assault.2 He was convicted of both charges following a jury trial at the District Court at Wellington. The Crown applies for a sentence of preventive detention and the proceedings have been transferred to this Court to allow that sentence to be considered. Defence does not oppose such a sentence but nevertheless this Court must consider whether Mr Smith should be sentenced to preventive detention or a long finite period of imprisonment.

1	Crimes Act 1961, s 128(1)(b) and 128B, maximum penalty 20 years’ imprisonment.
2	Section 135, maximum penalty seven years’ imprisonment.

R v SMITH [2020] NZHC 2793 [23 October 2020]

The offending

[2]	Under s 24 of the Sentencing Act 2002 a sentence must proceed on agreed facts, those express or implied from the finding of guilt, or facts disclosed at trial. There are no factual findings of the trial judge available to this Court. I take the facts largely from those agreed to in defence counsel submissions.

[3]	The victim is a 51 year old female. She has an intellectual disability and is under the care of IHC New Zealand.

[4]	On 22 May 2018 Mr Smith was in the area of Upper Hutt. The victim had been shopping at a supermarket and was walking home with her groceries in a large black rubbish bag and wheeled trolley. The victim went through the checkout at 1.18 pm.

[5]	The victim walked past Mr Smith shortly after going through the checkout and there was a discussion between the two of them. The defendant then carried the large black rubbish bag and walked beside the victim to her home, a distance of approximately 2.2km, arriving around an hour later. The CCTV footage shows the pair walking side by side and they appear to be in discussion.

[6]	Once at the address the victim opened the door and Mr Smith asked to come inside. Once inside the address Mr Smith went to the bathroom and the victim started putting her groceries away. Mr Smith came out of the bathroom and started groping and kissing the victim. Mr Smith then helped the victim to put some groceries away before approaching the victim again.

[7]	On the second occasion Mr Smith placed his hands inside the victims’ jumper on her breasts and he rubbed his penis against her buttocks. Both parties were fully clothed.

[8]	Mr Smith removed his penis from his trousers and placed the victims’ hand on his penis. Almost simultaneously Mr Smith placed his hand on the victim’s vagina. Mr Smith stated at interview that his hand was over her underwear and that there was no skin-to-skin contact. The victim on some occasions said that the touching was under the underwear and on other occasions that it was over the underwear. Prior to

finding the charge of sexual violation proven the jury sought confirmation of the definition of ‘into her vagina’ and asked whether that could occur over underwear.

[9]	After an exchange of words the victim then let go of Mr Smith’s penis and Mr Smith removed his hands from the victim after a very brief contact. Mr Smith put his penis back in his pants.

[10]	Mr Smith then approached the victim again and began manhandling her towards her bedroom. The victim talked about her mother not liking it when she was taken advantage of and that she had been taken advantage of before. Mr Smith desisted in his attempts to get the victim onto the bed.

[11]	The victim and her partner then had a telephone discussion with Mr Smith still at the address. Mr Smith then spoke to him and waited in the kitchen or lounge area. It appears likely that Mr Smith was still at the address when the conversation had ended.

[12]	The victim came out of the bedroom and there was a conversation between the victim and Mr Smith. Mr Smith then left.

[13]	The victim was examined on 22 May 2018 by a doctor. There was a scratch on the victims face and three bruises on her arm and breast which the doctor said indicated forceful contact.

[14]	On 24 May 2018 Mr Smith called and texted his probation officer saying he was bothered by something he had done. He described going to the victim’s address and touching her breasts and vagina. He was asked whether she was saying ‘no’ and responded “kind of”. Later that day Mr Smith was arrested, charged and interviewed.

[15]	I have had the advantage of hearing a victim impact statement from the victim’s sister-in-law. The offending has had an impact on all the wider family, but particularly on the victim who fears for her safety and has lost confidence in her ability to look after herself. She has regular episodes where she is extremely upset and inconsolable.

It is quite obvious that this offending has had a significant impact. These impacts are not something that Mr Smith appears to fully appreciate.

Personal circumstances

[16]	Mr Smith is 52 years old. He identifies as Ngāti Kahungunu and Pākehā, and was raised in Gisborne after being raised by extended whānau as an infant. As a child he was exposed to violence and witnessed sexual assault of family members. He has a limited education and struggled to engage at school, leaving college at age 15. He has had sporadic employment but for most of his life has been unemployed and relied on Work and Income support. He has five children, who he has no contact with.

[17]	Mr Smith has 75 previous convictions for drug related offending, driving charges, disorderly behaviour, aggravated assault, family violence charges and serious sexual offending. Mr Smith’s pattern of sexual offending was considered serious enough to warrant the imposition of a  seven year  extended  supervision  order on  21 January 2016. This was re-imprisoned twice for breaching the extended supervision order conditions in 2017. He was subject to the extended supervision order at the time of the current offending.

Approach to sentencing

[18]	The primary issue is whether to sentence Mr Smith to a finite term of imprisonment, or preventive detention. Before the Court can impose preventive detention the following statutory preconditions under s 87(2) of the Sentencing Act must be satisfied:

(a)	first, a person is convicted of a qualifying sexual or violent offence,

(b)	second, the person was 18 years of age or over at the time of committing the offence, and

(c)	thirdly, the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the

sentence expiry date of any finite sentence that the court is able to impose.

[19]	The first issue to address is the length of an appropriate finite sentence for the sexual connection charges. I will then go on to consider whether to impose a sentence of preventive detention rather than the finite sentence.

Finite sentence

[20]	The starting point for sexual offending must be determined in accordance with the Court of Appeal guideline case R v AM.3 There the Court identified specific culpability assessment factors for sexual offending and bands for both rape and unlawful sexual connection. Mr Smith’s offending falls within the unlawful sexual connection bands, either band one (resulting in a starting point of two to five years) or band two (resulting in a starting point of five to 10 years).

[21]	Crown submits the offending falls in the upper end of band two and suggests a starting point of seven to eight years. The defence submits the offending falls within the lower end of band two, or the upper end of band one with a starting point of three to four years. There are a number of aggravating factors present in the current offending to some extent:

(a)	Vulnerability of the victim: The victim is intellectually disabled and is particularly vulnerable to sexual abuse and exploitation. The defence counsel point out that the vulnerability must be known to the offender and submit that the Crown has not proved that Mr Smith knew of her disability. In his Police interview he recognised that she was a vulnerable person, but not explicitly that she was intellectually disabled. He has intellectual problems himself. I nevertheless accept that he knew she was vulnerable, even if there is doubt about the extent of the vulnerability he was aware of.

3	R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

(b)	Planning and premeditation: The jury’s findings and Mr Smith’s admissions lead me to conclude that he targeted the victim due to her vulnerability and followed her home with some kind of sexual interaction in mind under the guise of helping her with her shopping. Defence counsel argue the offending may be described as opportunistic rather than premeditated, and the possibility that Mr Smith was hoping for a consensual encounter. Offenders who show predatory sexual behaviour may be more likely to offend in an opportunistic manner. The Court of Appeal have held that such offenders should not be treated as lacking premeditation.4 Overall I consider premeditation is present to a moderate degree.

(c)	Home invasion: The offending took place in the victim’s home, which Mr Smith gained access to under the pretence of helping her with her groceries. The defence submit there is no element of home invasion here as he was not unlawfully in her home. But home invasion is not limited to breaking and entering, and can involve other forms of entry into the home and committing offending there. Whether there has been a home invasion depends on the facts and circumstances, and I am satisfied there was an element of home invasion here as Mr Smith gained entry to the victim’s home for the purpose of the type of sexual offending he then engaged in.

(d)	Harm to the victim: Whilst there was no significant physical violence in the offending, she has suffered psychological harm that has impacted on her day-to-day life. She has felt scared to go places by herself and is more reclusive. She has regular episodes where she feels upset and has obsessed over whether Mr Smith will ‘get her’ again in her flat.

[22]	I do not agree with the Crown that the offending falls within the higher end of band two, however. Cases falling within the higher end of band two tend to involve very young victims, greater degradation of the victim or where the offending occurred

4	At [37].

over an extended period of time.5 Overall, I consider the case is at the upper end of band one, and a starting point of five years is appropriate.

Aggravating circumstances

[23]	A six month uplift for the indecent assault charge is appropriate. In terms of prior offending Mr Smith has a number of previous convictions for sexual offending. In 1989 he was convicted of sexual intercourse with a girl aged 12–16. In 2000 he was convicted of indecent assault on a female aged 12–16 and in 2009 he was convicted of rape. The Crown submit an uplift of six to 12 months should be imposed. Defence submit that an uplift of no more than six months is appropriate.

[24]	A sentence should not be increased merely because the offender has previous convictions as this may result in the offender effectively being punished twice for the same offending.6 But criminal history can be taken into account if it has some relevance to the sentencing principles. For example, previous convictions may increase the culpability of the current offending or may increase of the risk of reoffending and justify a greater need for deterrence.7

[25]	Here the previous convictions increase the culpability of the offending and indicate a high risk of reoffending. The uplift should be reasonably proportionate to the starting point I consider a six month uplift is appropriate.

Mitigating factors

[26]	Mr Crowley submits a small discount for remorse should be given. Evidence of genuine remorse can justify a discount in the  realm  of five to  eight  per  cent.  Mr Crowley points out that Mr Smith apologised immediately after the offending and came forward to his probation officer two days later.

[27]	On the other hand the pre-sentence report writer notes that Mr Smith was upfront and honest about his offending and took “full responsibility”, accepting his

5	See R v Bell CA393/05, 28 April 2006; and R v Alletson [2009] NZCA 205.
6	R v Casey [1931] NZLR 594 (CA) at 597.
7	Te Hau v R [2013] NZCA 431 at [18].

decision was wrong. But the fact is that a not guilty plea was entered and a trial was still required. The report writer also noted Mr Smith did not acknowledge the victim, did not show remorse towards her and displayed a lack of empathy towards her. In interviews with the psychiatric assessors Mr Smith expressed a frustration at remaining in prison for what he considered to be relatively minor offending. In those circumstances  I do not consider a discount for remorse is  available.   Of course    Mr Smith deserves significant credit for not opposing preventive detention, but that is not relevant to the consideration of the finite sentence.

Conclusion on finite sentence

[28]	That results in a potential finite end sentence of six years. If a finite sentence were to be imposed, I also consider a minimum period of imprisonment would also need to imposed and it would appropriately be set at three years, 11 months.8

Preventive detention

[29]	I now consider whether to impose a sentence of preventive detention rather than the sentence of six years’ imprisonment. While preventive detention is not opposed it is still necessary to consider whether the requirements of that sentence are satisfied.

[30]	Preventive detention is a very significant sentence. The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.9 As Mr Smith has been convicted of qualifying sexual offences, a sentence of preventive detention may be imposed if the Court is satisfied that he is likely to commit another qualifying sexual or violent offence if released at the sentence expiry date.10 The assessment involves an analysis of  the risk that Mr Smith poses having regard to reports from at least two appropriate health assessors.11 Here I have considered a report from Dr Bronwyn Castell dated 16 June 2020 and Dr Barry Walsh dated 24 June 2020.

8	Sentencing Act, s 86(4)(a).
9	Sentencing Act, s 87(1).
10	Section 87(2); and Parole Act 2002, s 82(1).
11	Sentencing Act 2002, s 88(1)(b).

[31]	In assessing the risk the Court must also consider the following factors under s 87(4):12

(a)	any pattern of serious offending disclosed by the prisoner’s history,

(b)	the seriousness of harm to the community caused by the offending,

(c)	information indicating a tendency to commit serious offences in the future,

(d)	the absence or failure of efforts by the prisoner to address the causes of the offending, and

(e)	the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[32]	The possibility of imposing an extended supervision order is also relevant to the assessment of preventive detention, particularly where a case is finely balanced.13

[33]	I note that Dr Castell assesses Mr Smith as being at a significant risk of reoffending after a period of intensive monitoring without successful intervention, and that Dr Barry-Walsh has considerable concern around the possibility of reoffending if released at this time. Both of those reports seem to me to suggest that it would be necessary for successful intervention, and if it were not successful that a significant risk of reoffending would exist.

Pattern of serious offending

[34]	Mr Smith has a pervasive pattern of sexual offending over the last three decades, primarily against adult women. He has a history of violence against intimate partners but his sexual offending extends to women and female adolescents both known and unknown to him.

12	Sentencing Act 2002, s 87(4).
13	See, for example, R v Mist [2005] 2 NZLR 791 (CA); and R v Parahi [2005] 3 NZLR 356 (CA).

[35]	Mr Smith committed his first sexual offence aged 21 in 1989. He was convicted of sexual intercourse with a girl aged 12–16, and was sentenced to one year’s imprisonment. In 2001 at the age of 32 he committed a further offence against a 16 year old girl after encountering three young girls on a bush track. He engaged them in inappropriate conversation and then kissed and hugged one of the girls in a sexual manner when they returned. For this he was convicted of indecent assault and was sentenced to six months’ imprisonment. Soon after his release from prison he was reported to be watching teenagers in his neighbourhood and persistently approaching them despite their rejections.

[36]	Eight years later, at the age of 41, Mr Smith was convicted of rape against his ex-partner in their home. He explained that this occurred after he became frustrated that his sexual needs were not being met. He was sentenced to six years’ imprisonment and a seven year extended supervision order was imposed upon his release from prison in 2016. He breached the conditions of his extended supervision order twice by speaking with a 13 year old female who he had developed an inappropriate interest in, and travelling through a park despite warnings not to. He committed the current offending while subject to the extended supervision order.

Seriousness of the harm to the community

[37]	Dr Barry-Walsh reports that if Mr Smith were to reoffend, it would likely be an opportunistic act against any female with physical signs of sexual maturity. He may, once again, deliberately place himself in situations where a reoffence is more likely to occur such as entering public parks. The likelihood is particularly strong if he experiences stress or fixates on sexual matters or if he develops an intimate relationship. I consider Mr Smith poses a serious risk of harm to the community, particularly for vulnerable women like the victim in the current offending.

Absence or failure of efforts to address the causes of the offending

[38]	In terms of the root causes of offending, the report writers identify a number of risk factors. Mr Smith has difficulties with self-management, has a problematic sex drive and a history of problems with intimate relationships. Dr Barry-Walsh has described him as a man who has high sex drive (although it may be diminishing,) with

substantial problems in managing his emotions, and developing and sustaining intimate relationships. He says that Mr Smith finds himself drifting towards offending as a way of gratifying his sexual urges, with internal inhibitions reduced by dissocial views. He says these issues are added to by Mr Smith’s impulse behaviours, apparently limited intellectual functioning and his difficulties in managing in the community which means he can quickly de-stabilise.

[39]	Overall the prospects of rehabilitation appear limited. Mr Smith completed nearly six years in custody for rape offending from 2009 to 2015. During this period he undertook a sexual offender treatment programme for seven months but his interpersonal and self-regulation difficulties impacted his ability to maintain motivation, and he chose to leave early. He has engaged in approximately 80 individual treatment sessions with Corrections psychologists both in prison and in the community but continually struggles to apply learnings to his everyday life. Dr Castell explains that his personality traits, including his repeated decisions to act on his impulses and seek out high risk situations as well as his cognitive weaknesses in reasoning, problem solving and shifting thought have likely interfered with his ability to use those strategies.

[40]	At the time of the offending Mr Smith had access to community support programmes such as Alcoholics and Narcotics Anonymous, Sex and Love Addicts Anonymous, Te Paepae Arahi and an ACC counsellor but chose not to engage with these services.

[41]	In prison individual treatment programmes for sexual offending will be available to Mr Smith but Dr Castell explains he may not be able or motivate to tolerate or apply the learnings from the treatment. Dr Barry-Walsh suggests consideration of anti-libidinal medication is an important part of management moving forward but there is no system allowing for treatment with such medication within the prison environment.

Tendency to commit serious offences in the future

[42]	Given the various offending related factors and Mr Smith’s limited prospects for rehabilitation there is a high risk of reoffending.

[43]	Age is typically a protective factor and the risk of sexual offending is known to substantially decrease around age 60. Mr Smith is still in his early fifties and his offending has continued at various ages. Dr Castell concludes that it is unclear to what extent a reduction in risk will occur for Mr Smith as he ages and must be a matter for regular reassessment.

[44]	Overall Mr Smith’s risk of reoffending over the next five years is assessed to be well above average. Over the next 10 years this risk may reduce if Mr Smith experiences a reduction in his sexual drive and sustained improvement in his ability to regulate. But to date his progress in those areas has been very limited. I note that Dr Barry-Walsh did not have access to the information concerning Mr Smith’s programmes within prison, and their lack of success.

Adequate protection for society with a lengthy determinate sentence

[45]	Overall, given the risk of reoffending and the inability of Mr Smith to respond to treatment, I do not consider a lengthy determinate sentence offers adequate protection for society. Other sentencing options have already been taken to little success. Mr Smith has already served a lengthy sentence from 2009 to 2015 for previous sexual offending and was made subject to a seven year extended supervision order but continued to breach the conditions of the order and reoffended a few years after release from prison.

[46]	To release Mr Smith after the end of a finite period, and irrespective of the success of any intervention programmes, would result in a high likelihood of him reoffending. He should only be released after he engages in programmes that successfully manage his propensity to reoffend.   Given the consistent pattern of    Mr Smith’s sexual offending over the last 30 years and his failure to respond to sexual offender treatment programmes or counselling I consider he is likely to commit further sexual offences upon release and a sentence of preventive detention is necessary to protect the community.

Minimum period of imprisonment

[47]	Section 89 of the Sentencing Act 2002 governs the imposition of a minimum period of imprisonment where preventive detention is imposed. The term must be at least five years and must be the longer of:14

(a)	the period of time that reflects the gravity of the offending, or

(b)	the period required to keep the public safe, in light of the defendant’s age and the risks he poses to the community.

[48]	In assessing the minimum period of imprisonment that I should impose, I have considered the minimum period that I would have imposed had Mr Smith been sentenced to a finite term of imprisonment. That period would have been three years and 11 months.

[49]	Defence suggest a minimum period of imprisonment of five years. The Crown contends that eight years should be imposed. Mr Smith is assessed at an above average risk of reoffending over the next five years if he does not respond to rehabilitation and treatment. Preventive detention is already a restrictive sentence which addresses the risk to the community.  In  light of  that, and the comparable  cases  referred to by  Mr Crowley I agree that in light of the circumstances a maximum five year period is appropriate.

[50]	Mr Smith would you please stand. On the charges of unlawful sexual connection and indecent assault I sentence you to preventive detention, with a minimum period of imprisonment of five years.

Cooke J

14	Section 89(2)(a) and (b).