R v Bloor

[2014] NZHC 2086

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-009-006028 [2014] NZHC 2086

THE QUEEN

v

NIGEL JAMES BLOOR

Hearing:	29 August 2014
Counsel:	JE Rielly for the Crown CM Ruane for the Defendant
Judgment:	29 August 2014

SENTENCING REMARKS OF ASHER J

Solicitors:

Crown Solicitor, Napier. CM Ruane, Christchurch.

R v BLOOR [2014] NZHC 2086 [29 August 2014]

[1]      Nigel James Bloor, following a trial you were found guilty by a jury of one count of sexual violation by unlawful sexual connection.   There had also been a charge of blackmail relating to the period following the sexual violation, but the jury found you not guilty on that count. The maximum sentence for sexual violation is 20 years’ imprisonment.

[2]      You had been in a relationship with the victim between September 2010 and February 2012.   You were not living together but would stay with each other on occasions.  On the weekend in question you had gone to the victim’s home. You had an active sexual relationship.  Through the relationship featuring vaginal intercourse, the  victim  had  indicated  to  you  that  she  did  not  wish  to  participate  in  anal intercourse.

[3]      On the afternoon of 19 February 2012 you both went to the victim’s bedroom and commenced having consensual sexual intercourse.   At a point you placed lubricant on her and proceeded to penetrate her anally.  The victim gave evidence that she immediately protested to you asking you to stop, saying it hurt and that you then pulled away.  However, you then recommenced taking hold of her and holding her face down on the bed with her head in the pillow.   You proceeded then to penetrate her anally for a period of time before ceasing.  Throughout that period she was loudly protesting telling you to stop and saying that you were hurting her.

[4]      The  victim  said  that  following  the  sexual  violation  she  crawled  to  the bathroom to clean herself up.   She was in pain and bleeding.   In the days that followed she was in pain and most uncomfortable and discovered she had anal tears.

[5]      The victim has provided a victim impact statement.  She considers that as a consequence of this incident you have caused her long term problems in her anus and genitals and contributed to incontinence.  She will need reconstructive surgery. She considers your act has caused her life to have changed and that it has very significantly affected her in every way, including her work.  She has not been able to work fulltime since the event.  Her emotional well-being and attitude to others has changed significantly.

[6]      Ms Rielly, for the Crown, submits that this offending warrants a starting point of eight years’ imprisonment.  She accepted, when I put it to her, that a discount for good  character  was  appropriate,  and  accepts  that  10  per  cent  could  be  a  fair deduction.  She submits that there should be no discount for remorse.

[7]      Mr Ruane, for you, submits that a starting point of approximately seven years would be more appropriate, with a more significant discount for good character of perhaps 15 per cent, and some discount for remorse.

[8]      I turn to the starting point.

[9]      The  way  in  which  sentencing  proceeds  is  that  a  starting  point  is  fixed considering  all  factors  relevant  to  the  culpability of  the  offending.    When  that starting point has been reached the Court then turns to consider aggravating and mitigating factors personal to the offender.

[10]     In terms of fixing a starting point, I am bound by the tariff case of R v AM, a decision of our Court of Appeal, which sets out various bands for sentencing.1   Both counsel have sought to place their submissions within the guidelines of that case. That case refers to four bands of rape offending and the two lowest, which are of relevance here, are rape band one (six to eight years), and rape band two (seven to 13 years), given that the offending involved penile penetration.  Mr Ruane argues for

rape band one, Ms Rielly for rape band two.

[11]     Rape band one is for offending at the lower end of the spectrum where aggravating  features  are  either  not  present,  or  present  only to  a  limited  extent. Aggravating factors can include abduction, particularly vulnerable victims, or an offender acting in concert.   Obviously there are many others that can also arise including premeditation.   There is no inherent difference in terms of the starting point between vaginal penetration and anal violation penetration.2

[12]     Mr Ruane in his submissions invited me to take a more lenient view on the facts than that proposed by the Crown.  He submitted that the facts can be seen as

1      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

2      R v Castles CA105/02, 23 May 2002 and R v D [2007] NZCA 74.

consistent with Mr Bloor having a belief in consent at the time of the violation, but that belief being unreasonable.

[13]     At the trial Mr Bloor did not give evidence, but a statement was adduced in which he said that the victim had agreed to the anal intercourse and that he was not aware of any protests. The victim gave an outline of events that I set out earlier.

[14]     I think  it  most  likely that  the  jury  accepted  the  victim’s  account  of  the violation.   Clearly Mr Bloor’s account in his statement was not accepted.   In my view the victim’s account of events must be treated as being established beyond reasonable doubt.

[15]     However,  I  do  accept  that  Mr  Bloor’s  act  in  proceeding  to  the  sexual violation was spontaneous.  There was no premeditation.  It can be seen as having arisen out of consensual sex.  That in itself is not necessarily a mitigating factor.  The issue  is  discussed  in  some  detail  in  R  v  AM.3    In  limited  circumstances  the seriousness may decrease when there has been immediately prior consensual sexual activity.  I do take it as a spontaneous act by you arising in the course of consensual sex into account in my overall assessment.

[16]   What is clear, however, is that there are factors which can be seen as aggravating.  The first is the violence of the sexual act itself.  I am satisfied beyond any doubt that it did cause the victim immediate severe pain, and that she protested. To persist with a sexual act that is actually causing damage and severe pain is more serious than penetration which in itself is not damaging the victim’s body.

[17]     Related to this is the residual damage to the victim following the act which I have set out.  She suffered from ongoing severe pain, bleeding and tears, and I have no doubt that the act caused her suffering for some weeks, and  great grief and

distress.

3      R v AM, above n 1, at [54]–[60].

[18]     There is also violence in the sense of the general application of force.  While it did not go beyond enabling Mr Bloor to carry out the violation, there is no doubt that the victim was grabbed and held.

[19]     I  have  every  sympathy  for  the  victim’s  attribution  of  the  longer  term problems that she has to the violation.   However, I have to be satisfied beyond reasonable doubt of aggravating factors and I am mindful, as Mr Ruane has pointed out to me in submissions, of the evidence of her doctor who was called, Dr Hislop, who did note problems in her anal and vaginal region but was unable to attribute them  to  any  particular  assault.    There  is  evidence  that  she  had  a  pre-existing condition prior to the violation and I cannot be certain that her present problems are not a development  of those pre-existing problems.   Therefore,  in  assessing this aspect of matters I can only take into account the immediate injuries and the immediate aftermath.  Indeed, the Crown accepted that I could not go beyond this.

[20]     So I must determine what these aggravating factors, which I have outlined, mean  in  terms  of the starting  point.    I consider  that  this  offending falls  at  the boundary between rape band one and rape band two.  There are aggravating factors, but in the invidious types of comparisons that have to be made by a sentencing Judge, they are of a low or moderate degree.

[21]     I cannot agree with Mr Ruane’s submission that only one year above the lowest appropriate sentence is correct.  In my assessment an eight year starting point is appropriate.

[22]     I turn to matters personal to Mr Bloor.   He is 45 years old.   He has no previous convictions.  Material before me, including a letter from his present partner, indicate to me that he has been and is able to maintain normal sexual relationships and that he could not be regarded as an abusive person in his day to day life.   It seems he is a hard worker and has held long term jobs through his career.  As a 45 year old man he is entitled to a real discount to reflect the fact that he has shown good character through his life up to this point.

[23]     I think Mr Bloor does feel regret and remorse in relation to this offending and it goes beyond just a regret that he finds himself facing a prison sentence.  However, in his letter to the Court and to the Probation Officer, he has not fully accepted the victim’s account of how the event transpired, and I have indicated already that I accept that is a true account.  But I do note that Mr Bloor says that he accepts the verdict and he regrets what has happened and sympathises with the victim, and I accept those remarks as sincere.

[24]     In the end I consider the appropriate discount relating to matters personal to Mr Bloor to be nine months.  This is largely to reflect his good character prior to the offending, although I have not treated as irrelevant his acceptance of the verdict and his expressions of regret.

[25]     Mr Bloor, on the count of sexual violation on which you have been convicted you are sentenced to seven years and three months’ imprisonment.

[26]     You may stand down.

……………………………..

Asher J