Goldsbury v The King

[2023] NZHC 1069

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-063-2241

[2023] NZHC 1069

BETWEEN

KRIS GOLDSBURY

Appellant

AND

THE KING

Respondent

Hearing:	27 April 2023
Appearances:	A Cresswell for Appellant A Maino for Respondent
Judgment:	8 May 2023

JUDGMENT OF LANG J

[on appeal against sentence and refusal to grant name suppression]

This judgment was delivered by me on 8 May 2023 at 2.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:

Crown Solicitor, Rotorua

GOLDSBURY v R [2023] NZHC 1069 [8 May 2023]

[1]    Mr Goldsbury pleaded guilty to a representative charge of having sexual connection with a person under the age of 16 years.1 On 17 March 2023, Judge E P Paul sentenced Mr Goldsbury to two years eight months imprisonment.2 In addition, the Judge declined to  grant  an  application  for  name  suppression  advanced  by  Mr Goldsbury, his wife and a company called Kidz World  Limited (Kidz World).3  Mr Goldsbury appeals against sentence and also against the refusal to grant name suppression.

Background

[2]    Kidz World operates daycare centres for children. Mr Goldsbury’s wife is the shareholder and director of the company and is responsible for the day-to-day operation of the daycare centres. At the time of the events giving rise to the charge Mr Goldsbury also assisted in their operation.

[3]    The victim of Mr Goldsbury’s offending began attending one of the daycare centres when she was nine years of age. Thereafter she regularly attended after school programmes until she was 14 years of age. At that stage she became a teacher help and assisted in that capacity to run those programmes. As a result of her lengthy association with the daycare centres the victim became very close to Mr Goldsbury and his family. However, the relationship between them was entirely appropriate until she attained the age of 15 years.

[4]    Matters changed after the victim turned 15 in February 2016. At that time she became an employee of Kidz World and worked in the daycare centres after she finished school on Monday to Thursday each week. She also worked at the childcare centres during school holidays. During this period the victim began to spend more time with Mr  Goldsbury  and  his  family  outside  business  hours.  At  this  stage Mr Goldsbury was 31 years of age. The victim helped Mr Goldsbury to carry out mechanical work on his cars and to build a pool area at his home. She also stayed overnight with Mr Goldsbury and his family at their home on several occasions.

1      Crimes Act 1961, s 134(1).

2      R v Goldsbury [2023] NZDC 5071.

3      R v Goldsbury [2023] NZDC 5121.

[5]    In October 2016 Mr Goldsbury and the victim began to send personal text messages to each other by cellphone. Mr Goldsbury purchased a separate cellphone and SIM card that he used to contact the victim. This meant his regular cellphone number would not show on her phone. Mr Goldsbury began spending a great deal of time with the victim and sent text messages to her saying that he could not wait until she turned 16 years of age.

[6]    The relationship began to involve inappropriate physical contact on occasions when the victim would stay at Mr Goldsbury’s house overnight. On these occasions she would sleep on a couch in the lounge. Mr Goldsbury would wait until his family went to sleep. He would then go into the lounge and kiss and cuddle the victim.

[7]    In or about October 2016 Mr Goldsbury was working on his car late at night at one of the daycare centres. The victim was also present and went to lie down in the movie room. Mr Goldsbury entered the room and had sexual intercourse with the victim for the first time. Thereafter he had sexual intercourse with her on several occasions after she had stayed  overnight at his address.   This would occur after    Mr Goldsbury’s wife and children had left the house in the morning. They engaged in sexual intercourse in several different  areas  of  Mr  Goldsbury’s  home.  In  total, Mr Goldsbury had sexual intercourse with the victim on approximately 20 occasions when she was 15 years of age.

[8]    In addition to engaging in sexual intercourse with Mr Goldsbury the victim also performed oral sex on him on two occasions when she was still 15 years of age. On these occasions Mr Goldsbury picked her up in his vehicle from school or dance class. On the first occasion Mr Goldsbury drove the victim to a secluded location where she gave him oral sex. On the second occasion it occurred at Mr Goldsbury’s family home. During this period there was also other sexual activity including genital touching and digital penetration of the victim’s vagina. This activity continued after the victim’s 16th birthday.

[9]    During this period Mr Goldsbury started buying the victim gifts. These included a necklace and a ring. He also became possessive and jealous of her when she would spend time with male friends. He would threaten to hurt himself if she did

not spend more time with him. Mr Goldsbury also became jealous of another male person whom the victim had met whilst on a cruise with her family.

[10]   In November 2017, whilst the victim was 16 years of age, her mother discovered inappropriate text messages from Mr Goldsbury on her daughter’s cellphone. She alerted Mr Goldsbury’s wife as to what she had found. Mr Goldsbury’s wife viewed the messages and immediately required him to sever all contact with the victim. At this stage, however, neither family was aware that Mr Goldsbury and the victim had been engaging in sexual activity for many months.

[11]   The victim eventually disclosed the offending some years later after seeking help from a counsellor for other reasons. She then went to the police and disclosed what Mr Goldsbury had done to her.

[12]   When the police initially spoke to Mr Goldsbury he acknowledged he had been involved in an inappropriate relationship with the victim but denied that any sexual activity had taken place. It is common ground, however, that Mr Goldsbury entered a guilty plea to the charge at a very early stage.

The sentence

[13]   At sentencing the Crown suggested a starting point of five and a half to six years imprisonment. Ms Cresswell, who appeared on Mr Goldsbury’s behalf in the District Court, submitted that a starting point of no greater than three years imprisonment was appropriate.

[14]   The Judge considered the offending involved a significant breach of trust because it built on the relationship formed between Mr Goldsbury’s family and the victim over many years whilst she was attending the daycare centres. The offending also took place over a considerable period and in different locations. It also took several different forms.

[15]   The Judge also considered the offending involved an element of grooming because of the use of the separate cellphone and SIM card and the purchasing of gifts for the victim. In addition there was a considerable age gap between Mr Goldsbury

and the victim. He was twice her age when the offending occurred. Finally, the Judge noted the trauma the victim and her family have suffered as a result of the offending. This was evident from victim impact statements read to the Court by both the victim and her mother. Taking these factors into account the Judge fixed a starting point of five years imprisonment.

[16]   It was common ground that a discount of 25 per cent was appropriate to reflect the early guilty plea.   The Judge also applied a discount of 15 per cent to reflect    Mr Goldsbury’s previous good character. He then applied a further discount of five per cent to reflect mental health issues from which Mr Goldsbury had been suffering at the time of the offending. This reduced the sentence by two years three months, or 45 per cent. The Judge then applied a further reduction of one month to reflect the fact that Mr Goldsbury had offered to pay the victim the sum of $1,000 by way of emotional harm reparation. This resulted in the end sentence of two years eight months imprisonment.

Issues on appeal

[17]Ms Cresswell advances the following submissions in support of the appeal:

(a)The Judge selected a starting point that was too high.

(b)The Judge failed to apply an adequate discount to reflect the mental health issues from which Mr Goldsbury suffers.

(c)The  Judge  applied  insufficient  discount  to  reflect  the  payment  Mr Goldsbury made to the victim by way of emotional harm reparation.

The starting point

Approach

[18]   Ms Cresswell maintains her submission, rejected by the Judge, that a starting point of around three years imprisonment was appropriate. For the Crown, Ms Maino submits the starting point of five years imprisonment was within the available range.

[19]   The Court of Appeal reviewed the starting point to be applied for offending of this type in R v H.4 The Court noted that the maximum sentence for an offence against s 134(1) of the Crimes Act 1961 had been increased in 2005 from seven years imprisonment to ten years.5 The Court held that the starting point in a defended case under s 134 should be one of four years imprisonment.6

[20]Subsequently, in R v Johnson, the Court of Appeal held that the approach

taken in R v H needed to be modified.7 By that stage the Court of Appeal had issued its guideline judgment in R v AM.8  In that case the Court identified starting points for cases involving non-consensual sexual violation. These were contained in bands of ascending seriousness based on the aggravating factors identified in the offending.

The Court in Johnson observed:9

[17] We consider that the four year starting point in R v H is still a useful reference point in relation to sentencing for sexual connection with young persons, where the offending shares features present in that case. Particular aggravating features in R v H were abuse of trust, a significant age gap between the offender and the victim, full penetrative sex on a number of occasions, and significant adverse effects on the victim. Where aggravating features in R v H are present, a starting point of four years may be appropriate. Other aggravating factors not present in R v H may be seen as increasing culpability. Such features could include grooming, or abusive and demeaning behaviour. Where there has been no breach of trust as in R v H but the same aggravating features are present, a lower starting point will be appropriate. A different combination of aggravating and mitigating factors might produce yet another result. It follows that the starting point of four years should be seen as no more than a mid-point in the range of offending where there is moderate culpability.

[21]   I take these observations to reflect the current state of the law. Offending involving the same aggravating factors that were present in R v H will attract a starting point of around four years imprisonment. The starting point will need to be adjusted upwards or downwards to reflect the presence or absence of aggravating factors that were not part of the factual matrix in R v H.

4      R v H [2008] NZCA 237.

5 At [15].

6 At [17].

7      R v Johnson [2010] NZCA 168.

8      R v AM [2010] NZCA 114, [2010] 2 NZLR 750 (CA).

9      R v Johnson, above n 7.

This case

[22]   There are similarities between the circumstances of the present case and those in R v H, although there are also some differences. One difference is that the appellant in R v H was 53 years of age at the time of the offending whilst the victim was 15 years of age.   This meant the age disparity was approximately 37 years rather than the    15 year disparity in the present case. However, I do not consider this to be of any real significance. Both cases involved male offenders who were considerably older than the victim and therefore not within the same social framework. In other words, the offending in the present case should not be viewed as being less serious than that in R v H because of the lesser age difference between the offender or the victim.

[23]   The scale of the offending involving sexual intercourse that occurred in R v H is very similar to that of the present case. R v H involved acts of sexual intercourse on 15 to 20 occasions before the victim attained the age of 16 years. The offending in the present case continued for approximately five months whereas in R v H it continued for approximately four months. The aggravating feature of the present case, not present in R v H, is that the offending also involved sexual activity other than sexual intercourse.

[24]   The offending in R v H took place exclusively in the appellant’s vehicle whereas the offending in the present case took place in a variety of locations. However, I do not regard this as being a material distinction for present purposes.

[25]   The breach of trust that occurred in R v H may be regarded as being more serious. The appellant in R v H was a friend of the victim’s mother, had known the victim since she was four years old and had lived as a boarder in the family home. The victim’s mother left home to live in Australia and reached an agreement with the appellant that he would use his best endeavours to help look after the victim in the mother’s absence. This led to the victim spending increasing amounts of time with the appellant in his vehicle that was parked outside the residential property in which the victim was living. Their relationship became sexual at an early stage.

[26]   I view the breach of trust, and the vulnerability of the victim, as being slightly greater in R v H given the fact that the offender in that case had effectively agreed to

act as the victim’s caregiver in her mother’s absence. He then abused that role by offending against her. However, in both cases the offender had known the victim from an early age and both victims viewed the offender as a person whom they could trust implicitly for that reason.

[27]   One factor that was absent in R v H is that of grooming. The Judge considered there was an element of grooming in the present case and Ms Cresswell submits he was wrong to do so. I disagree. I consider Mr Goldsbury’s actions in purchasing gifts such as jewellery and setting up a secret means of communicating with her clearly constituted a form of grooming. He also appears to have manipulated her lifestyle by dissuading her from having other male friends. I consider the Judge was correct to see these actions as constituting an aggravating factor that was not present in R v H.

[28]   The offending in the present case clearly had significant and long-lasting adverse effects for the victim and her family. The same can be said for the victim in R v H. I regard this as a neutral factor for present purposes.

[29]   Viewing these factors in totality I consider the offending in the present case is more serious than that in R v H. However, I do not consider it justified a starting point as high as five years. I consider an appropriate starting point would have been four years six months imprisonment.

[30]I draw support for this from the judgment of the Court of Appeal in Hawken v

R.10 That case involved a 15 year old male victim who was particularly vulnerable and a 32 year old female offender. Full penetrative intercourse occurred regularly over a two month period in circumstances where the offender had offered accommodation to the victim at a time when he needed it. The offending involved a breach of trust because of the close relationship between the offender and the victim. Other than the offer of accommodation, however, it did not involve any element of grooming. The Court held that a starting point of three years six months imprisonment was not outside the available range.11

10     Hawken v R [2019] NZCA 450.

11     At

[31]   I consider the offending in Hawken was less serious than that in the present case, but the overall culpability of Mr Goldsbury’s offending would not justify an increase of more than 12 months from the starting point selected in Hawken.

Discount for mental health issues

[32]   The evidence relating to this issue came from the affidavits filed prior to sentencing by Mr Goldsbury and his wife. They suggested that Mr Goldsbury has suffered from a form of depression for many years. Although this has never been formally diagnosed Mr Goldsbury has produced clinical notes from his doctor that show he had been taking medication to ameliorate this issue for some time before the offending began. The Judge gave Mr Goldsbury a discount of five per cent to recognise this factor, although  he  said  he  could  not  see  a  clear  link  between  Mr Goldsbury’s mental health issues and the offending.

[33]   Ms Cresswell says the Judge erred in this respect and that there was a clear link. This comes from Mr Goldsbury’s evidence that he was in a bad mental state at the time of the offending and viewed his experiences with the victim as a form of release. Ms Cresswell also submits that Mr Goldsbury’s depression will make it more difficult to serve a sentence of imprisonment.

[34]   The clinical notes contain only two notations recording visits by Mr Goldsbury to his doctor during the period within which the offending occurred. He did not report feeling abnormally depressed on either of these occasions. Furthermore, in the absence of any formal diagnosis it  is  difficult  to  discern  a  clear  link  between  Mr Goldsbury’s mental health issues  and  the  causes  of  his  offending.  And,  as Ms Maino points out for the Crown, the prison authorities deal regularly with prisoners who suffer from depressive issues. They are therefore well able to provide him with medical care and appropriate medication to deal with this issue.

[35]I do not detect any error in the Judge’s approach to this issue.

Discount for apology and payment of reparation

[36]   Mr Goldsbury and his wife filed their affidavits after they received the pre-sentence report. The writer of the report said that Mr Goldsbury continued to deny the offending. One of the principal purposes of Mr Goldsbury’s affidavit was to correct the report writer’s impression on this issue. In his affidavit Mr Goldsbury accepted responsibility for his offending and apologised to the victim for it. He also offered to pay the sum of $1000 by way of emotional harm reparation.

[37]   At sentencing Ms Cresswell did not seek a discount for remorse but submitted the Judge should give Mr Goldsbury significant credit for accepting responsibility, apologising to the victim and making the payment of reparation. She says the Judge erred in giving Mr Goldsbury a discount of just one month.

[38]    However, the level of discount to be given for this type of factor is very much a matter of discretion for the sentencing judge. In the present case Mr Goldsbury’s express acceptance of responsibility and apology came very late in the piece. Furthermore, the sum offered was not particularly large and would be unlikely in any event to have offered a great deal of comfort to the victim. I am not prepared to say the Judge ought to have applied a significantly greater discount to reflect these factors.

Conclusion

[39]   I have found that the appropriate starting point should have been six months less than that selected by the Judge. However, I have not upheld any of the remaining grounds of appeal. It follows that, applying the level of discounts selected by the Judge, the starting point is reduced by two years before making allowance for the payment of reparation. Once this is taken into account the sentence reduces to one of two years five months imprisonment.

Result

[40]    The appeal against sentence is allowed and the sentence of two years eight months imprisonment is set aside. In its place I impose a sentence of two years five months imprisonment.

Appeal against refusal to grant name suppression

[41]   Ms Cresswell advanced her application for permanent name suppression under s 202 of the Criminal Procedure Act 2011 (CPA), which provides as follows:

202 Court may suppress identity of witnesses, victims, and connected persons

(1)A court that is hearing a proceeding in respect of an offence may make an order forbidding publication of the name, address, or occupation of any person who—

(a)is called as a witness; or

(b)is a victim of the offence; or

(c)is connected with the proceedings, or is connected with the person who is accused of, or convicted of, or acquitted of the offence.

(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a)cause undue hardship to the witness, victim, or connected person; or

(b)create a real risk of prejudice to a fair trial; or

(c)endanger the safety of any person; or

(d)lead to the identification of another person whose name is suppressed by order or by law; or

(e)prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

(f)prejudice the security or defence of New Zealand.

(3)Subsection (1) applies whether or not the court has made an order under section 200 suppressing the identity of the defendant.

(4)An order under subsection (1) suppressing the identity of a witness, victim, or connected person may not prevent publication of the name of the defendant (which may be prohibited only by an order made under section 200) or the nature of the charge.

[42]   In this context the word “likely” in s 202(2) has been construed as “a real risk that cannot readily be discounted”.12

12     Beacon Media Group Ltd v Waititi [2014] NZHC 281 at [17].

[43]   Ms Cresswell relied in the District Court on the fact that Mr Goldsbury’s wife and Kidz World are persons who are closely connected with Mr Goldsbury for the purposes of s 202(1)(c). She submitted they would suffer undue hardship in terms of s 202(2)(a) if their names and identifying particulars were published.13 People who read about Mr Goldsbury’s offending would immediately conclude that the offending had occurred with a young person who had been entrusted to the care of the daycare centres operated by Kidz World. This in turn would have serious economic consequences for Mr Goldsbury’s wife and her business because clients would not be prepared to entrust the care of their children to the daycare centres.

[44]The Judge dealt with the issue of suppression as follows:14

[9]        I have formed a clear view it would be difficult to see how any parent considering placing their child at Kidz World with [Mr Goldsbury’s wife] could objectively think ill or bad of [Mr GoldsBury’s wife], given her good reputation and the measures she has put in place to ensure child safety at her facility, just because of her husband’s offending. Also, I am mindful that open justice plays a significant part here. I am also mindful of the victim’s views. She certainly does not support suppression.

[10]      Given the view I have formed, there is nothing that has been presented to me which would reach the threshold of an undue risk of hardship or undue hardship to either [Mr Goldsbury’s wife] or the company, and I refuse the application for final suppression. Furthermore, [Mr Goldsbury] does not seek suppression on the much higher standard of extreme hardship and certainly if I was viewing any such application, it would be rejected, likewise.

[45]   Ms Cresswell says the Judge erred in his assessment and that he ought to have granted the application so far as it related to both Mr Goldsbury’s wife and the company. If an order for suppression was made in their favour it would also be necessary to make an order suppressing Mr Goldsbury’s name and identifying particulars from publication. If his name was published it would be a simple matter for those who read about his offending to connect it with his wife and her business.

[46]   An unfortunate fact about criminal offending is that it commonly creates adverse consequences for persons closely associated with the offender. This must be expected to a certain extent. Section 202(2)(a) of the CPA therefore requires an

13     Criminal Procedure Act 2011, s 202(2).

14     R v Goldsbury, above n 3.

applicant to show that they will suffer hardship beyond that which would normally attend publicity surrounding criminal proceedings.15

[47]   In the present case Ms Cresswell’s submission is based on the premise that those who read about Mr Goldsbury’s offending will automatically assume that the offending occurred whilst the victim was being cared for at the daycare centre. However, those who take the care to examine the facts will know this was not the case. Rather, the offending occurred outside business hours and at a stage in her life where the victim was working for the daycare centre as an employee. There is therefore no cause for those who learn about the offending to conclude that the daycare centres are unable to protect the safety of children in their care.

[48]   I am therefore satisfied that Mr Goldsbury’s wife and the company will not suffer undue hardship if Mr Goldsbury’s name is published. The Judge was accordingly correct to decline the application for permanent name suppression.

Result

[49]The appeal against refusal to grant name suppression is dismissed.

Lang J

15     Beacon Media Group Ltd v Waititi, above n 10, at [22].