R v Bradbury

[2019] NZHC 1527

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-059-000407

[2019] NZHC 1527

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

ORAL JUDGMENT OF NATION J

[1]                  Mr Bradbury was found guilty of various charges of indecent assault at a trial earlier this year. On 7 March 2019, Judge Callaghan in the District Court declined jurisdiction and remitted Mr Bradbury to the High Court for sentence. The matter was transferred to the High Court because the Judge recognised the potential for the Court to impose a sentence of preventive detention.

[2]                  Judge Callaghan called for two assessments to address the issue of preventive detention, as required by the Sentencing Act, and Mr Bradbury has been remanded for sentence in the High Court since then. Reports were obtained from a psychologist Mr Craig Prince and from another psychologist Ms McLean. Mr Prince’s report was dated 14 June 2019, Ms McLean’s report was provided more recently than that.

R v BRADBURY [2019] NZHC 1527 [2 July 2019]

[3]                  Mr Bradbury’s counsel advises that she has discussed both reports with Mr Bradbury. Ms Vidal did not appear for Mr Bradbury at trial. She understood that Mr Bradbury would have discussed with trial counsel whether or not he should be seeking a specialist or assessor’s report for the defence with regard to potential preventive detention issues. She understood that Mr Bradbury must have agreed with counsel that he would not seek such a report.

[4]                  Ms Vidal has today told me that, when she discussed the report that had been obtained from Ms McLean with Mr Bradbury last week, she discussed with him whether or not he had any concern about whether or not he should be seeking a report from, we can put it this way, an assessor for the defence. She told me that Mr Bradbury indicated that he would have preferred her to make a decision about that. Ms Vidal responsibly told him that it really had to be a decision for him. The indication she received was that he was content for sentencing to proceed on the basis of all the information which is currently before the Court.

[5]                  Today Ms Vidal has discussed the issue with him again. She tells me that Mr Bradbury has said that he finds it difficult to make decisions under pressure, in part because of the length of time he has spent in custody in the past. So, essentially, he is finding it difficult to make a decision about it one way or the other.

[6]                  Ms Vidal is concerned that, if the Court proceeds with sentencing now, there is the potential for Mr Bradbury on an appeal to argue that he should have had the opportunity to obtain an assessment from another psychologist or psychiatrist who would have been able to consider the reports that have already been provided by Mr Prince and Ms McLean. He says that is particularly important because he considers himself innocent of all the charges that he has been found guilty of. It seems, because of that, he will inevitably be taking this matter to the Court of Appeal.

[7]                  I have considered what Ms Vidal has had to say. Mr Bradbury is aware of what has been said in the reports. Even if he did not have copies of both reports until recently, he has been aware of what the two assessors were saying and the strong indication I take from those reports that they consider a sentence of preventive detention could well be necessary in the public interest in this case.

[8]                  The Court has to consider the interests of the victims of the offending, the families that are associated with them. Any delay in sentencing would undoubtedly cause them continuing distress. There is always the possibility of an appeal but, if it is considered by another court that the defendant should have the opportunity to obtain an assessment or a report from a further assessor, another court could, if it thinks so, provide him with the opportunity to obtain such a report, presumably subject to approval from legal aid.

[9]                  I consider it is in the interests of justice for sentencing to proceed as scheduled with the Court having the benefit of all the information that is before it. I note that the two assessors who have provided reports provide those reports as independent experts advising the Court, they are not providing those reports in any way as advocates for the Crown or the defence. So, I do intend to proceed with sentencing.

[10]              There was also an application by media to be able to photograph the defendant during this hearing. I am told that Mr Bradbury objects to that because he considers himself innocent of the charges. Photographing defendants is something that is allowed now as part of the media’s right to report on proceedings that are in Court and that must be held in the open. Accordingly, I grant approval for the taking of that photograph, and it is just one photograph, of the defendant at the outset of the hearing.

[11]I now proceed with sentencing.

Solicitors:

Preston Russell Law, Invercargill Southern Law, Invercargill.