Jackson v Crown Law Office

[2014] NZHC 2425

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2014-406-9 [2014] NZHC 2425

BETWEEN

VAUGHAN PETER JACKSON

Appellant

AND

CROWN LAW OFFICE Respondent

Hearing:	2 October 2014
Counsel:	R Harrison for Appellant S O'Donoghue for Respondent
Judgment:	3 October 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 3 October 2014 at 1.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Inangahua Chambers, Blenheim for Appellant

Crown Solicitor’s Office, Nelson for Respondent

JACKSON v CROWN LAW OFFICE [2014] NZHC 2425 [3 October 2014]

Introduction

[1]      The  appellant  pleaded   guilty  to  one  representative  charge  of  sexual connection with a young person under 161 and was sentenced by Judge Walker in the District Court to two years and seven months’ imprisonment.   He appeals against sentence on the basis that the starting point was too high and insufficient credit was given for mitigating factors.

Facts

[2]      The appellant was forty three years old at the time of the offending.  He met the complainant at ANZAC commemorations when he gave her and some others a ride in his jeep.   She was 13.   She began contacting him by text.   The appellant replied and, over time, these texts became increasingly intimate. The pair exchanged intimate photographs of themselves.  The appellant then travelled from Blenheim to Nelson and took part in sexual activity with the complainant (who had turned 14) at least five times between 27 July 2013 and 13 October 2013.   The sexual activity included vaginal, oral and anal sex on the victim and the victim performing oral sex on the appellant.

[3]      The offending became known to the complainant’s friend and subsequently known to her school.  The complainant told the appellant she had been interviewed by staff at her school and that the Police would be involved.  He advised her to tell the truth.

[4]      The impact on the complainant has been significant.   She feels responsible for the offending and for the consequences on the appellant.  She is self-harming and has reduced her educational involvement.   There has, understandably, been a considerable effect on her family.

Starting point

[5]      There is no guideline judgment for this type of offending.  In R v Johnson the

Court of Appeal stated that s 134(1) is considered part of a prophylactic regime

designed to protect vulnerable young people from being sexually exploited by adult offenders:2

… young girls who consent to sexual activity with considerably older men frequently become disturbed when they reach an age where they have full understanding of what they have been involved in… The importance of deterring adults from having sex with children and young persons was emphasised when … the maximum sentence of seven years’ imprisonment was increased to ten years…

[6]      The Court of Appeal in Johnson further commented that a four year starting point is appropriate where the aggravating features are: 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.   Additional aggravating features which  increase  culpability include grooming and  abusive or demeaning behaviour.   Where there has  been  no  breach  of trust  but  the same  aggravating features  are  present,  a  lower  starting  point  will  be  appropriate. The  Court  also remarked that four years is the mid-point in a range for offending of this nature

involving moderate culpability. 3

[7]     Without specifically identifying any aggravating features in the subject offending, the Judge imposed a starting point of four years’ imprisonment.

[8]      There is no dispute that a 29 year age gap existed between the appellant and the complainant; that full penetrative sex (including anal sex) occurred on a number of occasions over a three month period; and that the impact on the complainant has been significant.

[9]      Mr Harrison submitted that the offending had not involved a breach of trust, nor rough and demeaning behaviour.  He further submitted that there had been no targeting in this case, highlighting that the complainant had initiated contact and the appellant was emotionally vulnerable to this kind of contact.  He referred also to a psychologist’s report, which stated:

When the complainant communicated with him and asked him for advice, he enjoyed being able to listen to her and offer her help.  During this time, a

blurring of boundaries  occurred,  and  he  began  seeing her  as  possessing adult-like qualities.  He felt like they were on an equal footing and a sexual relationship was a natural progression to complete the intimacy that he was experiencing.

[10]     In response, Ms O’Donoghue submitted that the appellant had engaged in deliberate and persistent targeting, geared at manipulating an impressionable 14 year old.   She highlighted the degree of communication between the appellant and the complainant by text, email and Skype, which gradually became sexualised before sexual activity occurred.   In her submission, the offending involved moderate culpability and thus the starting point imposed was appropriate.

[11]     The  starting  point  is  clearly  within  the  available  range  for  this  type  of offending and  little weight  can  be placed  on  Mr Harrison’s  suggestion  that  the complainant was the initiator. As the Court of Appeal said in R v Burdett:4

… The prohibition of grooming of and sexual intercourse with underage girls places them in a protected position and, in the case of mature men, the conduct of the girl is no longer likely to be of moment at sentencing…

[12]     While the complainant may have initiated the first contact, as a considerably older adult the appellant was in a position to control the relationship from that moment.  Instead of stopping the contact, however, he went to Nelson on a number of occasions to meet her for outings before the sexual activity commenced. Subsequently, he travelled to her house for the purpose of sexual activity with her, which took place in his car.

[13]     The statement of the Court of Appeal in Johnson that, where there is no breach of trust a starting point of less than four years should be imposed, has to be read in context.  The Court intended its use for guidance purposes and, as the Crown contended, anticipated that a sentencing court will identify the aggravating factors relevant to a particular case and determine whether in combination they amount to moderate culpability on the part of an offender.

[14]     Having regard to the comparable cases  referred to by the Crown5,  I am satisfied that the starting point was within range.  Further, the discount for personal circumstances was generous and resulted in an end sentence within range.

Credit for mitigating factors

[15]     Judge  Walker  deducted  six  months  for  remorse  and  11  months  for  the appellant’s guilty plea, a combined discount of 35.41 per cent.   Mr Harrison nevertheless argued that insufficient credit had been accorded the appellant’s cooperation with authorities, his efforts at rehabilitation and his previous good character.

[16]     Mr Harrison further pointed out that the appellant had readily acknowledged his offending from the outset and had not endeavoured to manipulate or hide his offending from the authorities.   It is to the appellant’s credit that he did properly encourage the complainant to disclose the full offending to the police, when it was clear  they would  become  involved.    However,  he  also  initially told  police  that intercourse had occurred only once and that it was the victim who had pursued him. For the purposes of sentencing, he said sexual intercourse had occurred on two occasions.   This  assertion required the sentencing to be adjourned  to allow the Crown to contact the victim, who said sexual activity occurred on six to seven occasions.   The appellant now accepts that sexual intercourse occurred on five occasions.   The number of occasions during which sexual activity occurred is a significant aggravating factor for sentencing in this type of case.  The discount of

12.5  per  cent,  even  accounting  for  a  discount  for  efforts  at  rehabilitation,  can therefore be characterised as generous, given the attempt to minimise this factor.

[17]     The appellant’s previous good character and lack of previous convictions do not qualify for a discount as the offending was serious and committed on a number of occasions.6

Result

[18]     The appeal is dismissed.

Goddard J