R v Bradbury

[2019] NZHC 1528

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-059-000407

[2019] NZHC 1528

THE QUEEN

v

BENJAMIN BARRIE BRADBURY

Hearing:	1 July 2019
Appearances:	R W Donnelly and G Woodward for the Crown S G Vidal for the Defendant
Judgment:	2 July 2019

SENTENCING REMARKS OF NATION J

Victim impact reports

[1]                  First of all, I want to acknowledge [the mother who read her victim impact report] and all those who have provided victim impact reports. I recognise the challenges involved in doing this, particularly for the young victims who have had to talk about what happened to them on a number of occasions, including when giving evidence. And, I recognised the challenge that parents have faced and are continuing to face in trying to ensure their children can be confident and trusting when they are with adults, when they are in public places such as swimming pools. As young children, they should be able to grow up free of the fears and apprehension they feel as a result of your actions, Mr Bradbury.

R v BRADBURY [2019] NZHC 1528 [2 July 2019]

[2]                  I am sure all those present, including you Mr Bradbury, are aware that I have received detailed and very carefully written submissions from counsel for the Crown and also from Ms Vidal for you Mr Bradbury, so I have had an opportunity to reflect on those submissions, the essence of which have been repeated to me today.

Introduction

[3]                  Mr Bradbury, you were found guilty by a jury in the District Court of 10 charges of indecent assault on a child under 12 years, pursuant to s 132(3) of the Crimes Act 1961. The case has been transferred to the High Court for sentencing as a sentence of preventive detention may be appropriate.

Facts

[4]                  On the 8th, 10th and 14th of June 2017, you went to the Alpine Aqualand swimming pool in Queenstown. While swimming in the lazy river over the three days, you indecently assaulted six female victims between the ages of five and 10 by purposefully touching them under the water as you swam past them. You were unknown to each of the victims.

[5]                  On Thursday 8 June 2017, you entered the pool at 2.53 pm and did not leave until the pool closed after 8.00 pm. You offended against one victim by rubbing her stomach in the area between her belly button and her vagina over her bathing costume three times. As you swam past another victim you touched her with a hard swipe on the outside of her thigh.

[6]                  On Saturday 10 June 2017, you entered the pool at 10.19 am and stayed for nearly 10 hours, leaving at 7.51 pm. You offended against a five year old victim by tickling her on her vagina on top of her swimming costume, then moving your hand from her vagina to her stomach.

[7]                  On Wednesday 14 June 2017, you entered the pool at 2.03 pm. You offended against a victim by touching her on the hip and thigh while swimming past her twice. You touched the stomach of another victim in a tickling motion. You offended against another victim by touching her leg up to her stomach when you first swam past her,

and then again from her kneecap to her hip. You were escorted from the premises by Police around 6.00 pm and taken to the Queenstown Police Station.

[8]                  You continue to deny the offending, you deny it today, admitting you were at the pool but saying you were wrongly identified. You were initially charged with 13 counts of indecent assault, including four counts against one of the victims. You were found not guilty on three of those counts.

[9]                  Victim impact statements have been received from the victims and some of the parents. Generally, they describe the children suffering nightmares, having trouble sleeping, feeling stress from having to talk about the offending, not feeling safe, particularly around adult men, and no longer enjoying swimming.

Previous offending

[10]You are 43 years old and all your prior offending is sexual in nature.

[11]              Your first convictions arose from 2000 for two counts of indecently assaulting a female under 12. You were sentenced to one year, six months’ imprisonment. From the information available on file, this offending involved pulling down the pants of a six year old girl and interfering with her genital area, possibly inserting your fingers into her vagina. You pleaded guilty to these charges but denied the offending and say you were “tricked” by your lawyer.

[12]              You committed further sexual offences in 2003, 13 months after your release from prison and seven months after your parole period ended. The first instance, in March 2003, involved you going to a beach where a number of teenagers were socialising. You brought alcohol and a knife with you. During the course of the evening, you made lewd comments to the girls and later committed a number of indecent assaults on three different female teenagers. When confronted by a male who was with them, you reacted aggressively and presented a knife at him. This resulted in three charges of indecently assaulting a female over 16, two charges of indecently assaulting a female between 12 and 16, and possession of an offensive weapon. You admitted to being at the beach but denied any offending, suggesting that, if you appeared intoxicated, the teenagers may have drugged you.

[13]              A week after that offending, you abducted a 15 year old girl off the street and raped her. It appears that you approached her, grabbed her by the arm, produced a knife and told her to be quiet. You took the victim a short distance to your house, where you forced her inside and raped her while she cried and repeatedly asked you to stop. You denied this offending. Your version of events was that the victim was walking past your house and you yelled out to her asking if she wanted to have sex with you, which she apparently agreed to. In the sentencing judgment, Priestley J said it was “very apparent” that your evidence lacked credibility.

[14]              You were sentenced to 13 years’ imprisonment with a non-parole period of seven years. You served the full sentence without parole as you refused to engage in treatment. In sentencing you, Priestley J declined to impose preventive detention but said:

However, Mr Bradbury, be under no illusions that if you ever commit a serious sexual offence again preventive detention is in my view almost inevitable.

[15]              The present offending occurred 14 months after your release from prison and eight months after your mandatory parole period ended.

Sentencing reports

[16]              The pre-sentence report states that you continue to deny guilt and refuse to take responsibility for the offending. It assesses your risk of re-offending in a sexual manner towards female children and adolescents as high, as well as your overall risk of harm to female children. The report notes that this is the second time you have re- offended and found yourself in custody within a period of six to eight months following completion of a mandatory period of parole.

[17]              You have an ex-wife and adult daughter in the United Kingdom with whom you have no contact. After the most recent offending, you have lost all family support, including from your previously supportive mother. You struggled to obtain employment after your last period of imprisonment and your mother bought you a self- contained van. You lived in the van in the Queenstown area for approximately seven to ten days before the offending, apparently panning for gold.

[18]              The report notes that it is “concerning” that you continue not to acknowledge your current or past offending. It notes that your actions in the present offending appear pre-planned and calculated. You have denied any treatment offered to you. You are however ineligible for much of the treatment because of your continued denial of your offending.

[19]              As required by s 88 of the Sentencing Act 2002, there are also two psychologists’ reports on file. Ms McLean’s report records your history of psychologists’ reports between 2001 and 2016. A common theme was your refusal to participate in or consent to aspects of the assessments and, on four occasions, being found at high or moderate-high risk of further sexual offending.

[20]              Ms McLean’s report records some violence in your childhood from your stepfather and mother, physical and sexual abuse by a babysitter, and other unsolicited sexual contact when you were aged 10 and 11. You described the situation in which you grew up as leaving you feeling unloved, unwanted and unsupported. You struggled at school and left at 15 with no formal qualifications. You began drinking heavily in your teens.

[21]              In describing your sexual experience and attitude, you denied experiencing sexual attraction to pre-pubescent or adolescent girls but admitted using the word ‘teen’ when searching for online pornography.

[22]              Despite being convicted of sexual offending against children, you did not consider it inappropriate to live in households occupied by children. You did so on two occasions after your release from prison in 2002.

[23]              Ms McLean notes that, during the assessment, you expressed that you felt you had been deceived and misrepresented many times during your interactions with the criminal justice system. She notes too your repeated refusals to engage in treatment offered to you. She writes that you have developed a pattern of objectifying and sexualising women and developed a sense of entitlement to engage with females (including children and teenagers) in a sexual manner. Your offending history

indicates you choosing to offend in environments where there is minimal supervision and in a way in which you perceive you are less likely to be detected.

[24]              With a reference to a number of instruments to assess your risk of further offending, Ms McLean considers there is a high risk of you committing a further sexual offence within the community. This is particularly so given that you are untreated, continue to refuse treatment and deny your offending. She expresses concern about you placing yourself in environments where you have had relatively unsupervised access to children, and how quickly you have reoffended after being released. She said this indicates that you have been unwilling or unable to actively manage your own risk, and external monitoring and management of your behaviour over the longer term is considered necessary for effective risk management.

[25]              A second report was prepared by Craig Prince. This report has largely similar contents to Ms McLean’s report. It also records your complaints about the trial of the present offending, including that there were too many inconsistencies in the complainant’s evidence, that a policeman spoke to a juror in a shop and told them about your past, that Police tampered with evidence, and that your lawyer was inadequate. You felt confident in the likelihood of an appeal being successful and your receiving a financial pay out.

[26]              Mr Prince considers that you display a high risk of reoffending against children in a sexual manner. You have a number of risk factors including your clear deviant sexual interest, pattern of offending, lack of insight, and lack of treatment. Mr Prince considers that “a determinate sentence alone is unlikely to mitigate any future risk once [you are] released from prison – just as it failed to do on two previous occasions”.

Submissions

Crown submissions

[27]              The Crown submits that a sentence of preventive detention would be appropriate because a finite sentence would provide inadequate protection to the community. If a finite sentence is imposed, it seeks a final sentence of four years’ imprisonment with a minimum period of imprisonment of two years and eight months.

[28]              Mr Donnelly submits that the offending is aggravated by there being six victims, the vulnerability of the young victims, your premeditation and planning by choosing times and a location where school-age children would be present and not closely supervised, and the impact on the victims. He submits there are no mitigating factors of the offending.

[29]              In terms of aggravating features, Mr Donnelly points to your criminal history and your ongoing denial of your actions. He submits there are no mitigating factors relating to you personally.

[30]              Having regard to the factors in s 87(4) of the Sentencing Act, Mr Donnelly submits that preventive detention with a minimum period of imprisonment of five years is appropriate and necessary to protect the community.

[31]              However, should the Court consider a finite sentence would be appropriate, Mr Donnelly refers to a number of similar cases for guidance. He submits that the offending against the victim on Saturday 10 June 2017 is the most serious and, on its own, could attract a starting point of 18 months’ imprisonment. Taking into account the five further victims and the high level of premeditation and planning, Mr Donnelly submits that an overall starting point of three years’ imprisonment would be appropriate. He submits an uplift of one year to reflect your prior convictions would be justified and submits that no discounts are available. He submits a minimum period of imprisonment of two-thirds is required, taking the submitted final sentence to four years’ imprisonment with a minimum period of imprisonment of two years and eight months.

Defence submissions

[32]              Your counsel, Ms Vidal, submits that the appropriate sentence is a finite sentence of three years and two months’ imprisonment, with a minimum period of imprisonment of two years and one month, coupled with an extended supervision order that could be imposed at the end of the prison sentence.

[33]              Ms Vidal takes no issue with the Crown’s submitted starting point of three years’ imprisonment. However, the proposed uplift of one year to reflect your criminal

history represents a 33 per cent uplift, which she submits is excessive and out of line with recent Court of Appeal decisions. She submits an uplift of six months would be sufficient. She submits a discount of 10 per cent should be available to reflect your mental health issues, namely generalised anxiety and post traumatic stress disorder, as discussed in Ms McLean’s psychologist’s report. This takes Ms Vidal’s submitted final sentence to three years and two months’ imprisonment. She accepts the Crown’s proposed minimum period of imprisonment of two thirds of the final sentence.

[34]              Ms Vidal, as you heard today, submits that preventive detention is not appropriate here as the offending represents a de-escalation of the seriousness of your offending. Along with your age, the seriousness of the present offending, and the risk you present, Ms Vidal submits that preventive detention is not justified. She characterised the offending as non-invasive, brief and opportunistic, with no breach of trust or grooming. Ms Vidal submits the offending was unsophisticated and lacked any suggestion of threat or use of violence. She submits that the offending does not amount to the “serious sexual offending” that Priestley J warned would almost inevitably lead to a sentence of preventive detention.

[35]              Ms Vidal also notes that, as the final sentence submitted by both counsel is four years’ imprisonment or less, preventive detention with a minimum period of imprisonment of five years (as required by the legislation) is not appropriate. She notes that Parliament amended the required minimum period of imprisonment from 10 years to five years to ensure that situations, such as that discussed in R v D,1 where the defendant would have to serve a sentence of imprisonment longer than the finite sentence, would not arise again. That sentence was, Ms Vidal submits, considered to be a breach of the Optional Protocol to the International Covenant on Civil and Political Rights. She submits that Parliament’s required minimum period of imprisonment of five years clearly signals that offending that would attract a finite sentence less than that is not sufficiently serious to justify preventive detention.

1      R v D [2003] 1 NZLR 41 (CA).

Analysis

Appropriate finite sentence

[36]              Sexual offending against children will always be serious. While your offending here is not at the top of the seriousness spectrum, the impact on the victims has been notable and will be ongoing.

[37]              Counsel agree that a starting point of three years’ imprisonment for this offending would be appropriate. I agree, particularly with reference to the Court of Appeal’s decision in Shaw v R.2 In that case, Mr Shaw was found guilty of five counts of indecent assault on children, four of them girls under 12. These related to him touching a girl’s bottom as he stood behind her in a supermarket queue, following children into a games arcade and putting his hand under their bottoms and between their legs and rubbing their crotch area as they sat on the arcade motorbikes, and then some months later at a swimming pool putting a six year old girl on his knee and putting his arms around her waist, and ticking the bottom of another girl as she swam past him. An overall starting point of two and a half years was not disturbed on appeal. While the arcade offending was more serious than your offending, you face ten charges not five, and you have one more victim than Mr Shaw did.

[38]              The other cases referred to by the Crown also assist, where similar offending against single victims attracted starting points of between 14 months’ and two years’ imprisonment.3

[39]              While an uplift of one year to reflect your prior convictions would be on the high side, in the circumstances, I consider it would be appropriate having regard to the particular need for deterrence and to protect the public in your case. As is apparent, your prior convictions are distinctly relevant. This offending occurred just eight months after the end of your parole period for your last, very serious, offending. Coupled with your ongoing denial of all your offending and refusal to engage in treatment, this demonstrates how you have failed to learn from the sentences previously imposed on you.

2      Shaw v R [2014] NZCA 322.

3      Metua v R [2018] NZHC 246; R v Neil [2014] NZHC 2378; R v Tepania [2014] NZHC 2230.

[40]              I do not consider that a discount for mental health issues is warranted. Any issues you have were not made much of by Ms McLean and not mentioned by Mr Prince. Ms McLean referred to your suffering from generalised anxiety and post traumatic stress disorder but they cannot explain your sexual offending against female children and adolescents.

[41]              As such, a finite sentence of four years’ imprisonment would be appropriate on the current charges. I agree with both counsel that a minimum period of two-thirds would be appropriate.

Preventive detention

[42]              Preventive detention, which I must consider, is provided for in s 87 of the Sentencing Act. If an offender is sentenced to preventive detention, they will be incarcerated for an indefinite period; no maximum period of imprisonment will be specified. The Court must impose a minimum period of imprisonment of at least five years in every case.4

[43]              The purpose of preventive detention is “to protect the community from those who pose a significant and ongoing risk to the safety of its members”.5 There are three conditions that must be satisfied:6

(a)commission of a qualifying offence;

(b)when aged 18 or older; and

(c)the Court has to be satisfied that the offender is likely to commit another qualifying offence upon release.

[44]              The Court of Appeal has stated that it would be “an error of principle to impose preventive detention in order to achieve a more punitive result than an appropriate finite sentence could provide”.7 When considering whether to impose preventive

4      Sentencing Act, s 89(1).

5      Section 87(1).

6      Section 87(2).

7      Pairama v R CA216/97, 8 September 1997 at 4.

detention, s 87(4) provides that the Court must take into account the following matters:8

(a)any pattern of serious offending disclosed by the offender’s history;

(b)the seriousness of the harm to the community caused by the offending;

(c)information indicating a tendency to commit serious offences in future;

(d)the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and

(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[45]Mr Bradbury, you fulfil the pre-conditions necessary for preventive detention.

[46]              With regard to the s 87(4) factors, you have been involved in a pattern of serious sexual offending against female children and adolescents. All your prior convictions are related to this type of offending. While the offending ranges in seriousness, it includes abduction and rape, and your persistent denial and refusal to engage in treatment indicates your lack of insight.

[47]              With six victims of the present offending, the harm caused to the community is widespread. The children and parents are obviously distressed, and the extent to which the loss of innocence caused by the offending will affect the children into the future is unknown. Taken as a whole, your offending has caused serious harm to a large number of victims and the wider community.

[48]              The reports indicate clearly that you have a tendency to commit similar offences in the future. That tendency is not diminished to the point of disappearing simply by reason of your age. All the reports, along with a number of previous psychological reports, consider you at high risk of sexual reoffending against female

8      Sentencing Act, s 87(4).

children and adolescents. Your offending indicates a level of planning to target unsupervised victims. In the present offending, you went to the pool on three occasions, each during times you knew school children would be present. You remain untreated as a result of your denying your offending and refusing to engage. This increases your risk of committing similar offences in the future. You have made no effort to address the causes of your offending.

[49]              A sentence of preventive detention would allow the Parole Board to consider your possible release if, through treatment, Mr Bradbury, you can address the causes of your offending to the extent that the Parole Board consider you will no longer be a risk to the public. For you to receive such treatment, you will first have to acknowledge and accept responsibility for your past and present sexually abusive conduct. The challenge for you is to do that.

[50]              There is a principle that a lengthy determinate sentence is preferable if that provides adequate protection for society. A finite sentence, coupled with an extended supervision order, must be considered. However, you have already been subject to a lengthy determinate sentence. You served the full 13 years of that sentence, as you refused to engage in treatment. The present offending occurred 14 months after your release from prison and eight months after the expiry of your parole period. You have not been deterred and remain a significant risk to the community while you continue to deny any offending and refuse to engage in treatment, despite numerous opportunities.

[51]              Ms Vidal, in her submissions, highlighted the value that can be obtained from an extended supervision order. She mentioned the fact that, with an extended supervision order, a Court can impose conditions that would effectively require you to be under constant supervision, 24 hours a day, seven days a week. But, the mere fact, at this stage, that would appear to be necessary and appropriate, is also consistent with it being apparent that it is necessary for you to be in custody, under supervision and, while you are in that position, have the opportunity to benefit from treatment should you ever get to the position of accepting responsibility for your previous criminal offending.

[52]              While Ms Vidal has raised concerns about preventive detention being imposed for offending that is not comparatively particularly serious, I adopt the reasoning of the Court of Appeal in R v Rowe.9 This case involved a similar situation of preventive detention being imposed on an offender with a serious history of sexual offending, but the offending at hand being a single indecent assault of limited gravity. The Court first cited R v Dean:10

Where the facts indicate that preventive detention may be appropriate, the court’s focus is not on the impact of the present offending but rather is on whether the offending, when seen in context, demands a special reaction for the protection of society or a group within society.

[53]The Court went on to say:11

Given the serious offences for which the appellant has been convicted in the past, we do not see the limited (at least in this context) gravity of the present offending as inconsistent with the imposition of preventive detention.

[54]              In R v Rowe, the Court of Appeal upheld a sentence of preventive detention where the defendant had pleaded guilty to one charge of indecent assault for which the sentencing Judge held a particular sentence of three years could have been appropriate. The Court of Appeal noted the sentence of preventive detention had been imposed for offending which, as I just mentioned, was described as being of “limited gravity when viewed in the context of the sort of offending for which that sentence is usually imposed”.

[55]              As referred to earlier, the Court of Appeal has said that a defendant should not be sentenced to preventive detention to impose a more punitive sentence than an appropriate finite sentence. But, in your case, I would not be imposing preventive detention because it would be more punitive. I would be imposing that sentence because it is necessary to protect the public from you.

[56]              In De Kwant v R, the Court of Appeal upheld a sentence of preventive detention where the sentencing Judge had found that an appropriate sentence, after deduction of appropriate discounts, would have been three years and seven months. The Court of

9      R v Rowe CA385/04, 14 March 2005.

10     R v Dean CA172/03, 17 December 2004 at [74].

11     R v Rowe, above n 9, at [34].

Appeal said the five year minimum period of imprisonment associated with preventive detention was necessary for the protection of the public.12

[57]              In another recent sentencing, the High Court considered that a finite sentence of four years would have been appropriate. Mander J nevertheless held a sentence of preventive detention with a minimum term of five years was required for the protection of the public.13

[58]              Were you facing a sentence on just one charge, your offending might have been considered less serious for the reasons submitted by Ms Vidal. Your offending can however be considered serious because of the number of offences, the repeated nature of those offences and the premeditation involved. The offending was not opportunistic. You deliberately put yourself in circumstances over sustained periods where you were able to offend in the way you did.

Conclusion

[59]So, with that background, I am in a position to express my conclusion.

[60]              Mr Bradbury, please stand. Given your history of sexual offending against young girls, your ongoing denials and your refusal to engage in treatment, preventive detention with a minimum period of imprisonment of five years is necessary to protect the community. On all charges on which you were found guilty and convicted, you are sentenced to preventive detention with a minimum term of five years imprisonment.

[61]I note that Judge Callaghan has already given you a first strike warning.

[62]You can stand down.

Solicitors:

Preston Russell Law, Invercargill Southern Law, Invercargill.

12     De Kwant v R [2018] NZCA 600.

13     R v GL Jones [2019] NZHC 310.