R v Bailey - [2012] NZHC 1276

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-019-6530 [2012] NZHC 1276

THE QUEEN

v

FREDERICK BAILEY

Charges: Sexual exploitation of a person with a significant impairment (3); Indecent assault (4); Doing an indecent act with intent to offend (2)

Plea: Guilty

Counsel: SN Cameron for Crown
RAB Barnsdale for Prisoner

Sentenced: 8 June 2012
Preventive Detention; minimum term of eight years’ imprisonment
SENTENCING NOTES OF BREWER J

SOLICITORS
Almao Douch (Hamilton) for Crown
Richard Barnsdale (Hamilton) for Prisoner

R V BAILEY HC HAM CRI-2011-019-6530 [8 June 2012]

Introduction

[1] Mr Bailey, you appear today for sentencing on sexual offending against two young men. You pleaded guilty to all of the charges with which I am concerned. The charges in respect of your first victim, SC, are contained in an indictment. The first three counts are that on or about 1 August 2011 at Hamilton you had exploitative sexual connection with your victim, he being a person with a significant impairment. The third count is a representative count. That means that the offence occurred at least once but that it is alleged it occurred more than once. In this case the summary of facts to which you have pleaded guilty refers to three separate incidents of the particular form of exploitative sexual connection (anal intercourse), and that is the basis upon which I will approach your sentencing.

[2] The fourth count in the indictment is one that you have not pleaded guilty to. The Crown has told me it will offer no evidence on that count and you are accordingly discharged under s 347 of the Crimes Act 1961. That has the effect of an acquittal and I need not consider the count any further.

[3] You have also pleaded guilty to six charges against your second victim, HC. You pleaded guilty to these charges prior to committal and accordingly no indictment has been filed. The charges are before me for sentence because they were transferred to this Court by the District Court for consideration of a sentence of preventive detention. There are four charges of indecent assault and two charges of doing an indecent act with intent to offend. I say at this point that only the four charges of indecent assault will be relevant to the decision I will have to make as to preventive detention. The two charges of doing an indecent act with intent to offend are not charges which are relevant to that examination.

Facts

(a) SC

[4] On or about 1 August 2011, you met and befriended SC in the Hamilton

CBD. He was 19 years old with a mild intellectual disability and foetal alcohol

syndrome. He falls into the bottom 3% of persons for verbal comprehension skills, working memory and processing speed. His communication skills for his age equivalent score were of a child aged five years and 10 months.

[5] You offered your…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bailey

Details

AGLC: R v Bailey [2012] NZHC 1276
Case: [2012] NZHC 1276
Decision Date: 8 June 2012

CaseChat Overview and Summary

Frederick Bailey was sentenced in the High Court of New Zealand for multiple sexual offences against two young men. Bailey pleaded guilty to charges of sexual exploitation of a person with a significant impairment, indecent assault, and doing an indecent act with intent to offend. The court had to decide whether Bailey should be sentenced to a lengthy finite sentence or to a sentence of preventive detention. The latter is imposed to protect the community from those who pose a significant and ongoing risk to the safety of its members in the future.

The court found that Bailey's previous history of sexual offending, the seriousness of the harm caused by the offending, and his tendency to commit serious offences in the future justified a sentence of preventive detention. The court considered reports from health professionals, which indicated that Bailey was at a very high risk of re-offending sexually. The court also noted that Bailey had been subject to an extended supervision order at the time of the offending and had breached it multiple times. The court concluded that a lengthy determinate sentence was not adequate to protect society and that Bailey was at such a high risk of serious re-offending that a sentence of preventive detention was necessary.

Bailey was sentenced to preventive detention with a minimum term of eight years' imprisonment. The court considered the gravity of the offences and the risk Bailey posed to the community in determining the minimum term. Bailey's sentences are to be served concurrently with each other.

Orders