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…

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 Bradbury

Details

AGLC: R v Bradbury [2019] NZHC 1528
Case: [2019] NZHC 1528
Decision Date: 2 July 2019

CaseChat Overview and Summary

The defendant, Benjamin Barrie Bradbury, was convicted of ten counts of indecent assault on a child under 12 years of age. The matter was heard in the High Court of New Zealand, Invercargill Registry, for the purpose of sentencing, as a sentence of preventive detention may be appropriate. The court was required to determine whether a sentence of preventive detention was appropriate, and if so, what the minimum term of imprisonment should be. The court also had to consider the appropriate finite sentence, if preventive detention was not deemed appropriate.

The court examined the defendant's history of sexual offending against female children and adolescents, which included previous convictions for indecent assault, abduction, and rape. The court noted the seriousness of the present charges, the number of victims, and the premeditation involved. The court also considered the defendant's ongoing denial of his actions and refusal to engage in treatment. The court concluded that preventive detention with a minimum term of imprisonment of five years was necessary to protect the community from the defendant. The court imposed preventive detention on all charges on which the defendant was found guilty and convicted.

The final orders of the court were that the defendant, Benjamin Barrie Bradbury, was sentenced to preventive detention with a minimum term of five years imprisonment on all charges on which he was found guilty and convicted. The court noted that Judge Callaghan had already given the defendant a first strike warning.

Orders