Brown v Department of Corrections

[2021] NZHC 3382

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-147

[2021] NZHC 3382

BETWEEN

SAMUEL WILLIAM BROWN

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

6 December 2021

Appearances:

R J T George for Appellant

M G McClenaghan for Respondent

Judgment:

9 December 2021

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 9 December 2021 at 3.50 pm

Registrar/Deputy Registrar Date:

BROWN v DEPARTMENT OF CORRECTIONS [2021] NZHC 3382 [9 December 2021]

Introduction

[1]    The appellant, Samuel Brown, was sentenced on 13 October 2021 by Judge Crosbie to 13 months’ imprisonment on three charges of breaching an extended supervision order (ESO).1 Mr Brown appeals against that sentence on the basis it was manifestly excessive as a result of the Judge determining the offending was intentional and involved grooming.2

Factual background

[2]    On 28 July 2006, Mr Brown was sentenced to two and a half years’ imprisonment on charges of raping a female under 12 and having unlawful sexual connection with a female under 12. Mr Brown was 15 years old at the time and the victim was 7 years old. On 29 July 2009, he was made the subject of an ESO for a term of 10 years (the first ESO). He was convicted of nine breaches in respect of that ESO between 2009 and 2014.

[3]    On 19 May 2016 Mr Brown became subject to a second ESO for a term of 10 years (the second ESO). It is a condition of that order that Mr Brown not associate with or contact a person under the age of 16 years except with the prior written approval of a probation officer, and under the supervision of an adult who has been informed about the relevant offending and has been approved by a probation officer.

[4]All the references which follow at [5] to [8] relate to events in 2021.

[5]    On 2 April, Mr Brown moved into an address in Christchurch as part of his transition out of Christchurch Residential Care. One of his neighbours (the father) has three children who often visit their mother (the mother). The children are aged seven years, five years, and eight months old. Mr Brown had regular contact with the children when they were at the father’s address, including tickling and carrying them.

[6]    On 15 May, Mr Brown collected the mother and her infant son from the Palms Mall. He drove them to the address of the mother’s friend (the friend) where he

1      Parole Act 2002, s 107T – maximum penalty of two years’ imprisonment.

2      R v Brown [2021] NZDC 20258.

collected the friend and her two-year-old daughter. He then drove the four passengers, to his address and spent time with them at the father’s address. Also present were the father’s five-and seven-year-old daughters. GPS data evidence and camera footage confirmed Mr Brown was in the vicinity of these addresses on that day. These actions gave rise to the first charge of breaching an ESO.

[7]    On 22 May, Mr Brown spent two hours at the friend’s address with the friend and her two-year-old daughter. He interacted with the girl by giving her cookies and asking her about the toys she was playing with. Again, these movements were corroborated by GPS data and gave rise to the second charge.

[8]    On 12 June, Mr Brown approached the father, with his daughters present, and engaged in conversation with the three of them. These actions gave rise to the third charge.

[9]Mr Brown pleaded guilty to the three charges.

The District Court sentence

[10]   Judge Crosbie recognised that, although these three breaches were the first breaches of the second ESO, Mr Brown had breached the first ESO nine times. It was noted these earlier breaches were more serious as they involved Mr Brown accessing websites containing highly deviant sexual imagery. His Honour noted there was nevertheless something of a gap between the most recent breaches and the past breaches.

[11]   The Judge recorded that Mr Brown accepted the facts of the offending but told the pre-sentence report writer the regular and ongoing contact was not “intentional”. The Judge noted the report writer considered Mr Brown’s unapproved contact was strongly influenced by his offending-related sexual predilection towards prepubescent children and amounted to grooming behaviour. The report writer expressed concern that Mr Brown had created an offence pathway so soon after transitioning out of Christchurch Residential Care to independent residential living and appeared to fabricate a narrative (painting himself as the victim) when he spoke to Corrections.

The report writer concluded Mr Brown had demonstrated a willingness to disregard his ESO conditions to seek sexual gratification.

[12]   The Judge explained the object of the ESO was protective — to address the issues of the defendant’s offending, not to punish him. He stated the object of an ESO is to protect the interests of the recipient of the order, given the risk of offending he presents, and to protect members of the community. The Judge noted it is incumbent on the recipient of an ESO to make those who need to know aware the recipient is subject to it. In light of Mr Brown’s history of breaches, the Judge accepted his conduct was deceptive (because only Mr Brown knew of the ESO). Mr Brown knows the risk he poses to young children and the onus was on him (to inform others he was subject to the ESO). Furthermore, taking into account Mr Brown’s 10 breaches of the first ESO and the making of the second ESO, the Judge accepted Mr Brown’s repeated contact may be viewed as preparatory steps in a pattern of grooming in which Mr Brown began to establish a relationship of trust with the families he contacted.

[13]   The Judge recorded it was not suggested there should be a non-custodial sentence. The Judge had regard to the three breaches involved, the grooming or “intentional” characteristic of the offending and the risks involved. He then compared those circumstances with other cases, including Williams v Department of Corrections and Hansen v Department of Corrections.3

[14]   The Judge adopted a starting point of 12 months’ imprisonment. He imposed an uplift of three months to account for Mr Brown’s previous convictions and allowed a discount of two months for entry of guilty pleas. These adjustments resulted in an end sentence of 13 months’ imprisonment.

[15]   Before leaving that summary of the District Court judgment, I note the degree of ambiguity in the word “intentional” as used by the Judge. There was clearly mens rea in Mr Brown’s commission of the three offences. The Judge’s reference to “intentionality” against the background of Mr Brown denying that his regular contact

3      Williams v Department of Corrections [2012] NZHC 304; Hansen v Department of Corrections HC Dunedin CRI-2011-412-34, 12 October 2011. The Judge also referred to Otene v Department of Corrections [2013] NZHC 766.

was “intentional” must be taken to involve a finding that Mr Brown’s intentions related to having contact with children that went beyond benign contact (which would be lawful but for Mr Brown’s ESO). In other words, in the terminology used by Mr George, counsel for Mr Brown, in the District Court and on appeal, the use of “intentional” may be contrasted with “passive”.

Principles on appeal

[16]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6

Submissions

Appellant’s submissions

[17]   Mr George, for Mr Brown, submitted errors made by the Judge resulted in his incorrectly treating Mr Brown’s offending as aggravated, which led to an unjustified increase in the starting point adopted. He argued Mr Brown’s sentence of imprisonment should therefore have been shorter, although he did not suggest an appropriate figure. In his oral submissions, Mr George suggested appropriate guidance for the length of sentence could be obtained from two cases relied on for the District Court sentencing. They are Otene v Department of Corrections7 and Lake v Department of Corrections.8 Both involved a recognition that the offending (breach

4      Criminal Procedure Act 2011, ss 250(2) and 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

6      Ripia v R [2011] NZCA 101 at [15].

7      Otene v Department of Corrections, above n 3.

8      Lake v Department of Corrections [2015] NZHC 1542.

of  an  ESO)  had been “passive”.    This led to recognition that short sentences of imprisonment would be appropriate.

[18]   The first alleged error was that the Judge, in referring to neighbours having reported that Mr Brown had been in “regular intentional contact” with the children and that his offending was “preparatory”, relied on information not contained in the accepted summary of facts, the word “intentional” having been removed from the summary. Mr George submitted the Judge therefore erred in treating the intentional and preparatory nature of the offending as an aggravating factor. Mr George submitted that Mr Brown’s behaviour should have been treated as involving “passive” breaches of the ESO.

[19]   Secondly, Mr George submitted the Judge erred in drawing an inference of grooming and intentional contact from the summaries of facts which was not grounded on established primary facts. Mr George referred to statutory definitions of “grooming” overseas and argued an important element in making a finding of grooming is an intention to commit a sexual offence with a young person. He submitted there was no evidence that Mr Brown intended to commit a sexual offence against the children in question and it had not been accepted he engaged with the children for the purposes of grooming. Mr George noted Mr Brown’s contact with the children occurred whilst the parents were present and submitted there was no evidence the relationships were formed in order to have contact with the children. Mr George maintained the incorrect inference could be explained by the Judge’s first alleged error in mischaracterising the contact as “intentional” contact.

[20]   Mr George cited the Court of Appeal’s judgment in R v Pokai for its recognition that sentencing must proceed on the basis of the summary of facts where that has been provided by counsel as the agreed factual summary.9

Respondent’s submissions

[21]   Mr McClenaghan, on behalf of the respondent, submitted the Judge was entitled to make assessments as to the nature of the offending and draw inferences that

9      Pokai v R [2014] NZCA 356 at [30].

reflected the culpability of the offending. He acknowledged the word “intentional” was not in the three summaries of facts but submitted the Judge was entitled to characterise the offending as intentional or preparatory from the information before him. Furthermore, Mr McClenaghan submitted there was clear, compelling evidence entitling the Judge to infer that Mr Brown’s offending involved grooming-type behaviour. He argued the Judge did not assess the offending in a vacuum but took into account Mr Brown’s previous breaches.

[22]   Mr McClenaghan referred also to statements from the parents of the children present on the occasion of Mr Brown’s breaches of his ESO. The statements, provided to the District Court, contained further detail in relation to the three incidents, which went beyond that in the summaries of fact.

[23]   Additionally, Mr McClenaghan submitted the end sentence was fair and appropriate, having regard to the repeated nature and extent of the offending (including premeditation and grooming-type behaviour) and Mr Brown’s personal history. He submitted the decisions referred to by the Judge in Williams and Hansen are of appropriate assistance in determining the starting point. They provide examples of cases that are respectively more and less serious.

Analysis

[24]   Mr Brown’s appeal comes down to a proposition that the District Court Judge erred in drawing an inference (from the summaries of facts) that the offending was intentional and involved grooming. It was this finding that purportedly led to the Judge incorrectly treating the offending as aggravated and thereby adopting an unjustified increase in the starting point.

[25]   In Pokai, the Court of Appeal recognised that, where counsel have reached agreement as to the factual summary on which a guilty plea is to be entered, sentencing must proceed on the basis of that summary.10 However, the Court then stated it is clear that a sentencing Judge is entitled to draw inferences from an agreed summary of facts

10     Pokai v R, above n 9, at [30], citing R v Apostolakis (1997) 14 CRNZ 492 (CA); and R v Whiunui

CA212/05, 9 November 2005 at [14].

provided they are grounded on established primary facts.11 A Judge may utilise primary facts such as an offender’s actions and behaviour to then formulate an assessment of the culpability and seriousness of the offending.

[26]   In the present case, I am satisfied the Judge did not err by characterising the offending as intentional and determining there was preparatory grooming-type behaviour present. It is the case the word “intentional” was removed from the summaries of facts. Thereby Mr Brown’s intentionality did not become the subject of an agreed fact. But the Judge was entitled to characterise Mr Brown’s offending as intentional or preparatory from the facts before him and to infer that it involved grooming. As I will explain, I consider these inferences were fairly based on established primary facts and were conclusions open to the Judge.

[27]   Notwithstanding the recognition in Pokai of the sentencing judge’s entitlement to draw such inferences from primary facts, there is a requirement through r 5A.2(2) Criminal Procedure Rules 2012 that once the summary of facts is agreed, additional (primary) facts may be added only by leave of the sentencing Court. It would be inconsistent with that requirement to have regard to the statements referred to by Mr McClenaghan (above at [22]). I note that the District Court Judge does not appear to have done so. Nor do I place any reliance upon them.

[28]   The Judge did have available to him the three summaries of facts as to Mr Brown’s three breaches of the ESO. These breaches involved contact with four children under the age of eight and were committed within the space of a month. The summaries described the contact as “regular” and as involving not only Mr Brown talking to the children, but also, in relation to one charge, having tickled and carried them. In relation to another charge he gave the girl cookies and asked her about her toys. The facts indicate a pattern of conduct by Mr Brown in befriending adults who had young children with whom he could interact and then beginning such interactions. While, as emphasised by Mr George, Mr Brown on the occasion of the 15 May offence was assisting the children’s mother with her request for transportation, it was

11     At [31], citing R v Kinghorn [2014] NZCA 168 at [21] and [31]; and Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (HL) at 169–170.

incumbent on Mr Brown to inform her (and the other adults of children he contacted) of his ESO before acting in a way that brought him into contact with young children.

[29]   On its face, these established facts alone would have been sufficient for the Judge to reach the conclusions he did. However, it is also important to note that the Judge did not assess the offending in a vacuum. He had regard to the broader context of Mr Brown’s previous relevant convictions and the information provided by Probation in the pre-sentence reports. The Judge noted Mr Brown not only committed three breaches of the present ESO but that he also has nine convictions for breaching between 2009 and 2014 the first ESO he was subject to. Mr Brown’s history of non- compliance coloured the present offending. It provided a further basis for viewing it as intentional and preparatory — it is improbable that such repeated breaches all occurred “passively”.

[30]   The Judge also referred to the concerns expressed by the pre-sentence report writer in two reports. The Judge noted the writer considered Mr Brown’s unapproved contact was strongly influenced by his offending-related sexual arousal, in particular his sexual predilection towards prepubescent children. The writer stated, “[i]t is clear there is an ongoing pattern of Mr Brown seeking to establish close relationships with carers of prepubescent children”. Further, the Judge took into account the report writer’s concern that Mr Brown had created an offence pathway so soon after transitioning to independent living and that Mr Brown reported “feeling worried when he was having the contact with the children, as he knew it was wrong, but did it anyway”. The report writer also noted that Mr Brown’s strong sexual interest in children is well-established and is evidenced through his pattern of behaviour. In these circumstances, the Judge was entitled to find strength in the report writer’s conclusion that Mr Brown’s ongoing contact with the children, whereby he became increasingly familiar to them, was grooming behaviour. I am satisfied it was open to the Judge to take into account the report writer’s assessment in assessing the culpability and seriousness of the offending which accords with the circumstances relating to the three breaches.

[31]   In any event, I consider the end sentence imposed of 13 months’ imprisonment was justified and within range. An aggravating feature of Mr Brown’s offending was

the repeated nature of the breaches, the ongoing and proximate nature of his physical contact with the children, and the grooming-type behaviour exhibited. While there is no guideline judgment for offending involving a breach of an ESO, the decisions referred to by the Judge provide assistance.

[32]   In Williams, the appellant was sentenced on five charges of breaching an ESO, two charges of unlawfully being in an enclosed yard and one charge of offensive behaviour.12 He was subject to an ESO which included conditions not to enter or loiter near any school, camping ground or accommodation with shared toilet/shower facilities. In breach of the ESO, the appellant parked at the boundary of a holiday park, walked in and entered a women’s shower block at the campground. He entered a cubicle next to where a female camper was showering and called out obscene comments. He then approached another women’s shower block, opened a window and looked in. He was told to go away but returned shortly afterwards. The next day he returned to the holiday park and walked towards the toilets and showering facilities but was challenged by security and ran away. A starting point of 18 months’ imprisonment was not challenged on appeal.

[33]   In Hansen, the appellant was subject to an ESO with a condition not to go to places where children under 16 were likely to congregate.13 He breached that condition by going to Toyworld. He later told his probation officer he was intentionally “pushing the boundaries” because he disagreed with the wording of the special condition he had breached. The starting point of six months’ imprisonment for the single breach was upheld on appeal, with a two-month uplift for his two prior breaches.

[34]   I accept Mr McClenaghan’s submissions that the offending in the present case sits between these two cases and that a starting point of 12 months’ imprisonment and end sentence of 13 months’ imprisonment was within range.

12 Williams v Department of Corrections, above n 3.

13 Hansen v Department of Corrections, above n 3, upon a home detention appendix being provided, the sentence of imprisonment was quashed and replaced by a sentence of three months’ home detention: Hansen v Department of Corrections HC Christchurch CRI-2011-412-34, 26 October 2011.

[35]   I do not find the cases of Otene and Lake of particular assistance. Unsurprisingly the Judge, in referring to Otene (a case involving a breach of an ESO by consuming alcohol) found it to involve much less serious offending than Mr Brown’s.14 The same applies to Lake, another case involving breach of an ESO by entering an exclusion zone and not answering a cell-phone. On the facts of Lake, Gendall J found the breaches to have been “passive”, a description that cannot appropriately be given to Mr Brown’s breaches for the reasons I have identified.15

Conclusion

[36]    The Judge did not err by determining the offending was intentional and involved grooming-type behaviour. The end sentence of 13 months’ imprisonment was appropriate and within range.

[37]I dismiss the appeal.

Osborne J

Solicitors:

Crown Solicitor, Christchurch

R J T George, Barrister, Christchurch

14     Otene v Department of Corrections, above n 3.

15     Lake v Department of Corrections, above n 8, at [14].