R v Bartlett
[2015] NZHC 2756
•6 November 2015
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF VICTIM PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-004-002618 [2015] NZHC 2756
THE QUEEN
v
STEPHEN RICHARD TYRONE BARTLETT
Charges:
Plea::
Sexual connection with dependent family member x 2
Not guilty
Appearances:
S S McMullan for Crown
A G V Rogers for DefendantSentenced:
6 November 2015
SENTENCING NOTES OF VENNING J
Solicitors: Meredith Connell, Auckland
Copy to: A G V Rogers, Auckland
R v BARTLETT [2015] NZHC 2756 [6 November 2015]
[1] Stephen Bartlett, you are for sentence having been found guilty in the Auckland District Court of two charges of sexual connection with a dependent family member. The maximum sentence for each charge is seven years’ imprisonment. You are for sentence in this Court as the District Court Judge who heard the trial declined jurisdiction. It was his opinion that preventive detention was very much a live issue which needed to be considered by this Court.
[2] You are 56 years old. At the time of the offending you were aged 49 and the victim was 16, an age gap of 33 years. The victim’s mother met you in 2007. You both moved in to an address in Huntly later that year. The victim came to live with you there in January 2008. She did so because she was having trouble at her father’s home in Auckland and had nowhere else to go. From her perspective you controlled her mother through your relationship with her. The victim ended up staying at the address for around six months and then moved to another address in Huntly with you. She stayed at that address for under six months. For a time the victim’s mother joined her and you at that second address.
[3] The victim described the first count of sexual conduct with her as a dependent family member in the following way. She was asked to dress up as a blonde Japanese girl for your birthday. She then had sexual intercourse with you in your caravan, which was attached to the house. She felt she had no choice. You were all drinking and she just thought if she drank as well it would make it go away or she wouldn’t notice what was going on.
[4] After that incident you had sexual connection with the victim on a number of occasions as reflected in the representative nature of the second charge which you were convicted of. The trial Judge who heard the evidence recorded that, having heard that evidence he was of the view that sexual connection took place on a number of occasions over the period of time set out in that second representative count. However, the Judge was not prepared to specify the actual number. He considered the fact it happened on a number of occasions made ascertaining the exact number somewhat unnecessary in any event. I agree.
[5] In order for the issue of preventive detention to be considered the Judge declined jurisdiction. Having regard to the reports of Rajan Gupta, consultant clinical psychologist (peer reviewed by Ms Visser), and Dr Pillai, psychiatrist, the Crown does not pursue a sentence of preventive detention.
[6] Section 87 of the Sentencing Act confirms the Court may, on its own motion, even if the Crown does not pursue the matter, impose a sentence of preventive detention. That requires the Court to make an independent assessment of the matter. Having particular regard to the reports obtained by the Crown and the additional report of Dr Jansen prepared for the Defence, and having regard to the relevant criteria under s 87(4) of the Sentencing Act I am satisfied in this case it is not necessary to impose a sentence of preventive detention on you at this time. Importantly, while you are at risk of offending in the future, the reports support the conclusion that your recent offending was influenced by alcohol abuse which you are now prepared to take positive steps to address. If that issue is properly addressed the risk of reoffending in the future can be reduced.
[7] Apart from that general criteria referred to in s 87(4) it is also relevant in your case that as a convicted murderer you are subject to parole for life and subject to recall at any time.
[8] For those reasons I am satisfied it is not necessary to impose preventive detention at this time.
[9] I then turn to the appropriate determinate sentence for you. The sentence I impose must reflect the purposes and principles of the Sentencing Act, particularly the purposes of deterrence and denunciation. The sentence must also protect the community and hold you accountable for the harm you have undoubtedly caused the victim in this case. The principles of particular relevance in this case are:
(a) the seriousness of the offending; (b) your culpability; and
(c) consistency of sentencing, having regard to other cases of similar nature.
[10] As I noted earlier you are now 56 years old. As I read your pre-sentence report it does not disclose any real empathy or appreciation for the harm you have caused the victim in this case. You have an extensive offending history dating from
1974. You were sentenced to life imprisonment in 1993 for the murder of your former partner and released on parole in 2004. Since then you have accumulated three further convictions.
[11] You appear to seek to minimise the seriousness of your offending in this case. You told the pre-sentence report writer you made poor decisions at the time of the offending and were “happy in a way” the offences were being addressed. You have offending supportive attitudes, entitlement issues and impulse control issues. It appears you do not view your behaviour as problematic due to the fact the victim was over the age of 16.
[12] Against that there are some, limited, positive features of the pre-sentence report to the extent you express motivation towards addressing the factors relevant to your offending such as your willingness to address your alcohol abuse. Both Dr Jansen and Dr Pillai noted that abuse had played an important role in your offending. You have expressed an eagerness to Dr Jansen particularly to commit to abstinence and to undertake further relapse prevention work.
[13] The Crown argue for a start point in the region of four years’ imprisonment as appropriate with an uplift for your previous offending and the fact that you offended whilst on parole. The Crown also seeks a minimum period of imprisonment.
[14] Mr Rogers submits there was no basis for a starting point as high as four years in your case. He relies upon a comment in R v V1 where the Court of Appeal suggested that two and a half years’ imprisonment could be taken as a starting point
in a contested case of this nature.
1 R v V CA180/01, 30 August 2001.
[15] The offence of sexual conduct with a dependent family member was amended in 2005. Although the maximum term of imprisonment was not increased the distinction between a step-daughter, foster daughter or ward and other dependent person was removed. A dependent family member is now defined as someone the offender has power or authority over in certain circumstances. It is the abuse of that power and authority over a vulnerable member of the household which is the feature of the offence.
[16] The Crown argues there was a degree of premeditation, so much so that a requirement of the victim being permitted to live in the house was that she was to have sexual intercourse with you. The Crown also submits harm to the victim is patent, both from the victim impact statement and her evidence at trial. Further there is the extent of the offending in the two charges, the second of which was representative.
[17] I have considered the authority of R v V referred to, together with the cases referred to in that case itself: R v Crime Appeal (CA 43/836); R v Crime Appeal (CA
20/88); R v Accused CA 263/90); R v Crime Appeal CA 178/92); and X v Police.2 I
have also considered the cases referred to by the Crown.3
[18] Mr Rogers submits that the inter-relationship between the victim, her mother and you was far more complex than the Crown suggest. He argues the victim’s mother was perhaps just as responsible as you for this offending. Even allowing for involvement of the victim’s mother the fact remains that you are the person who offended against the victim in the way you did and you are before the Court. The fact the victim was not supported by her mother or in fact was made more readily available because of her mother’s failure to protect her is not a mitigating factor on your behalf. Mr Rogers also took issue with an aspect of the victim impact report. I note his submission in that regard and put to one side the suggestion of the physical
injuries the victim says she sustained as a consequence of the offending. The
2 R v Crime Appeal (CA 43/836), 13 June 1986; R v Crime Appeal CA 20/88), 28 June 1988; R v Accused CA 263/90) [1991] 3 NZLR 288; R v Crime Appeal CA 178/92), 19 October 1992; and X v Police (1993) 10 CRNZ 385.
3 B v R HC Gisborne AP 01 4010 2004, 2 March 2004; and R v M [2009] NZCA 70.
emotional effects and the ongoing effects on her emotional wellbeing are however equally as serious in this case.
[19] I do not accept the suggestion that anything near two and a half years would be an appropriate starting point. Apart from the fact the section has been amended as I have noted, R v V was decided some 14 years ago and before the Sentencing Act
2002. Further, with the features of the offending in that case the Court said a starting point of five years could in fact be used. Ultimately, each case must be determined on its own facts. While your offending in this case cannot be categorised as the worst of its kind it is nevertheless very bad offending over an extended period of time which has had a significant impact on the victim. I consider the circumstances of your offending to be worse than those referred to in a number of the other cases I have considered. In the circumstances a starting point of four years is required.
[20] To that starting point it is appropriate to adjust an uplift for your previous record of violence, particularly domestic violence. Offending of this nature is inherently violent and dominating in the context of a domestic setting. There is also of course your conviction for murder of your former partner in a domestic setting. In addition you have convictions for common assault in the past. This current offending is further violent offending in a domestic setting. The fact the offending occurred while you were subject to parole for murder is also of concern and supports an uplift. Overall an uplift of six months is justified. That leads to a starting point of four years, six months before consideration of any mitigating factors.
[21] There are no mitigating factors in your case Mr Bartlett. You took the matter to trial as was your right but there can be no discount for any acknowledgement of wrongdoing on your part. I fail to see on the material before the Court that there is any real remorse of the type contemplated by the Supreme Court in Hessell v
Hessell4 to support any reduction for that.
[22] The only positive feature identified is, as I have noted, your apparent willingness now to address your dependence on alcohol, which has been a major
4 Hessell v Hessell [2011] NZLR 607.
influence on your offending. I do not, however, consider that sufficient at this late stage to lead to any reduction in sentence.
[23] The Crown also seek a minimum term of imprisonment arguing your ongoing offending against the victim in particular had a significant impact on her, noting the need to protect the community bearing in mind you are assessed as having a moderate risk of recidivism.
[24] Mr Rogers submits strongly there is no need for a minimum term other than the standard minimum term in your case. He notes there was a recent incident between you and a partner and submitted your response in that confrontational situation was limited and that you were acquitted of the charge you faced.
[25] Mr Rogers also notes the positive aspects of Dr Jansen’s report. As I have said, there are some positive features. However I am still satisfied that the requirements of s 86 are made out in this case. There is a need to hold you accountable for the harm done to the victim and the community by your offending in the circumstances of this case. There is also a need to deter you personally, but also others from committing this sort of abusive offending in a domestic context. Further, given your background, particularly the murder conviction, there is a need to protect the community from you. A minimum term of 50 per cent is required to address those needs.
[26] Please stand. Mr Bartlett you are sentenced on both counts to imprisonment for four years, six months. That is concurrent. You are to serve a minimum non-
parole period of two years, three months’ imprisonment. Stand down.
Venning J
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