R v Bridgeman
[2022] NZHC 450
•14 March 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-002322
[2022] NZHC 450
THE QUEEN v
DARRYL GRANT BRIDGEMAN
Hearing: 14 March 2022 Appearances:
J N Hamilton for the Crown
T C Tran and A N Gray for the Defendant
Judgment:
14 March 2022
SENTENCING NOTES OF GORDON J
Solicitors/Counsel:
Hamilton Legal, Office of the Crown Solicitor, Hamilton Truc Tran Barrister, Hamilton
R v BRIDGEMAN [2022] NZHC 450 [14 March 2022]
Introduction
[1] Mr Bridgeman, you appear today for sentence on a charge of sexual violation by rape.1 Sexual violation carries a maximum penalty of 20 years’ imprisonment.
[2] You are currently serving a sentence of nine years’ imprisonment with a minimum non-parole period of 50 per cent, for separate serious sexual offending. You were sentenced on 5 June 2020 in the Hamilton District Court,2 having pleaded guilty to a charge of sexual violation by rape and two charges of sexual violation by unlawful sexual connection, all relating to an incident on 27 February 2020.
[3] As a consequence of your arrest and conviction for the 2020 offending, DNA analysis identified you as the offender in a historic rape which took place in December 2006. You entered a guilty plea on 12 August 2021.3 That is the charge on which you are being sentenced today.
[4] The inevitable outcome of your sentencing will be a period of imprisonment. The main issue for the Court today is whether that should be a finite period of imprisonment or the indeterminate sentence of preventive detention. The Crown submits a sentence of preventive detention should be imposed. As required, the Court has ordered reports from three health assessors under s 88 of the Sentencing Act 2002 (the Act). On your behalf, Mr Tran submits a finite sentence is the proper outcome.
Offending
[5] I will begin by summarising the facts of your offending as contained in the Summary of Facts which you accepted when you entered your guilty plea.
[6] The offending occurred on 15 December 2006, when you were aged 36. The victim was a female, European tourist aged 42. You had never met her before. You observed the victim in the car park of a scenic walking track on the west coast of the
1 Crimes Act 1961, s 128(1)(a): Maximum penalty 20 years’ imprisonment.
2 R v Bridgeman [2020] NZDC 10323.
3 A first strike warning was recorded on 16 March 2020 in relation to the 2020 offending; however, as the 2006 offending occurred prior to the three strikes legislation, and also occurred prior to the first strike warning, no strike warning was given upon conviction for the 2006 offending.
North Island. She was alone. You followed her up the hill track and walked past her. She made conversation briefly. She noticed you were carrying a white handled knife on your belt. She walked behind you on the track for a while, but your presence made her uneasy. She turned and began walking down hill to the car park.
[7] You walked up behind her and threw her to the ground. You held her down and told her not to scream. You placed one hand over her mouth and took out your knife so she could see it. You pulled the victim’s hat down over her face and told her not to look at you. You then pulled down her top and began sucking on her left breast. When she began to struggle trying to escape, you threatened her again with the knife. You then undid your trousers and masturbated until you ejaculated over the victim’s top. You then attempted to insert your penis into her vagina, three or four times. You were unable to fully insert your penis because it was flaccid. You were not wearing a condom.
[8] You asked the victim for money and took around $200 or $250 cash from her wallet before you left her.
Victim impact statement
[9] The victim has written a detailed victim impact statement for the Court. It is clear that she suffered immediate trauma and still, over 15 years later, she is suffering severe and long term psychological trauma.
[10] She says at the time she had no idea how she could defend herself against a knife. She was scared to death. For that reason she did nothing, as you demanded, and she says she is ashamed of that. She is not the one who should feel shame.
[11] She left New Zealand the next morning and it was only when she got to the airport did she feel safe because of all the other people around. She says she felt used and thrown away. She has told just one close friend what happened. She says she often thought of suicide. She had sleepless nights and nightmares stayed with her for years.
[12] She blames herself that she did not make a note of your car licence plate number so that you might be apprehended. She says it is her fault that the other female European traveller to New Zealand suffered in a similar way at your hands in 2020. I tell her that it is not her fault. It is all yours.
[13] In short, your attack on her has completely changed her life. It has changed the way she relates to men and she will no longer have a partner in her life. She avoids lonely areas which she is sad about because of her love of nature. She has sought help from a psychologist, but she says she still cannot turn off the self-blame. That is all down to you, Mr Bridgeman.
Approach to sentencing
[14] I must first determine an appropriate finite sentence before considering whether I should impose a sentence of preventive detention.
[15]Setting a finite sentence of imprisonment involves two steps:4
(a)I must first set a starting point for your sentence, which takes into account the facts of your offending;
(b)I will then adjust the starting point up or down taking into account your personal circumstances, and what discount you should receive for a guilty plea.
[16] Throughout this process, I will have regard to the purposes and principles of sentencing as set out in ss 7 and 8 of the Act. Of particular relevance to your offending is the need to hold you accountable for the harm you have done to the victim, to promote in you a sense of responsibility for your actions and acknowledgment of that harm, to denounce your conduct, to deter you and others from committing similar offences and to protect the community.
4 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
[17] I am also required to take into account the gravity of your offending, the need for consistency with comparable sentencing levels and the need to impose the least restrictive sentence that is appropriate in the circumstances.
[18] Given that you are currently serving a sentence of imprisonment for similar offending, the sentence I impose today will be cumulative on your existing sentence. Mr Tran, on your behalf, accepts that a cumulative approach is appropriate, given the discrete nature of the two sets of offending, the time between the two sets of offending and the different victims.
[19] However, when it comes to setting the term of a cumulative sentence, I will have regard to the totality principle, to ensure that the combination of both sentences reflects the overall offending. I accept Mr Tran’s submission that the Court is required to determine the overall sentence as if you had been sentenced for both sets of offending in 2020.5 The Crown adopts the same approach.
Step one
[20] The starting point for sexual violation by rape is set with reference to a guideline judgment of the Court of Appeal. In R v AM, the Court of Appeal set four bands for sexual offending where sexual violation by rape is the lead offence. 6
[21]The Court of Appeal set out bands 1 and 2 as follows:
[93] [Rape band one is] appropriate for offending at the lower end of the spectrum ... where the aggravating features are either not present or present to a limited extent. [It] is not an appropriate band for offending where the level of violence is serious, ... involves an extended abduction, a victim ... who is vulnerable or an offender [who] acts in concert with others. Where none of the factors ... which increase the seriousness of the offending are present a starting point at the bottom end of this band is appropriate. Where one or more of these factors is present to a low or moderate degree, a higher starting point is required.
5 Opetaia v R [2013] NZCA 434; H (800/2012) v R [2013] NZCA 128 at [12].
6 R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [90].
Rape band two is appropriate for a scale of offending and levels of violence and premeditation which are relatively moderate. The band covers offending which involves a vulnerable victim, or an offender who acts in concert with others or some additional violence. It is also appropriate for cases which involve two or three of the factors increasing culpability to a moderate degree.
[22] Offending which falls within band 1, will generally attract a starting point in the vicinity of six to eight years’ imprisonment. Offending in band 2 has a starting point of seven to 13 years’ imprisonment.
Culpability factors
[23] R v AM sets out culpability assessment factors which are designed to assist the Court in placing the offending in the appropriate band. These reflect and extend the aggravating factors set out in s 9 of the Act.7 The judgment makes clear that a single culpability factor, if present to a heightened degree, may be sufficient to elevate a case into a particular band.
[24] Ms Hamilton for the Crown and Mr Tran address the following culpability factors:
(a)Premeditation:8
(i)The Crown submits that your actions show a degree of premeditation: you observed the victim in an isolated area and saw her set off alone up a walking track. By following her up the track, overtaking her and walking ahead of her for a while, you ensured that no one else was on the track who could have come to her assistance. When she attempted to return to the car park you ambushed her. You have not provided any explanation as to why you were in the area carrying a knife (although you told the victim you were responsible for clearing the track).
(ii)Mr Tran submits that your offending was opportunistic and pre- meditation was only present to a low degree. He refers to your
7 At [34]-[64].
8 Sentencing Act 2002, s 9(1)(i).
comments to Dr Pillai,9 to the effect that you could not recall the events, that you were probably in the area to “go fishing” and that you were drinking with friends that day, although you could not remember who they were. Mr Tran suggests that your statement to Dr Pillai may go some way towards explaining why you had a knife in your possession.
(b)Threats of violence:10
(i)The Crown says you made repeated use of the knife you carried to threaten the victim with violence and ensure compliance with your demands.
(ii)Mr Tran accepts that the threatened use of the knife goes beyond the type of violence which is inherent in this type of offending, but suggests this factor was present to a moderate degree. He says that you only brandished the knife twice, when required to achieve co-operation from the victim, and that you did not make any explicit verbal threats in conjunction with showing the weapon.
(c)Vulnerability of victim:11
(i)The Crown submits you targeted a non-national female travelling in New Zealand alone: she was in an isolated area which was unfamiliar to her; and you ensured that she was isolated on the track.
(ii)Mr Tran accepts that the victim was alone and in a secluded area, but otherwise says she was not particularly vulnerable. She was 42 years old at the time of the offending, with a good understanding of the English language. There was no
9 Writer of a report prepared under s 88 of the Sentencing Act 2002.
10 Sentencing Act, s 9(1)(a).
11 Sentencing Act, s 9(1)(g).
significant age gap between you and the victim. Therefore, Mr Tran submits that this factor was present to a low degree.
(d)Scale of the offending:12
(i)The Crown says you subjected the victim to sexual indignities, including sucking her breast and ejaculating over her prior to committing rape, using the threat of your knife again during these assaults, and you forced her to give up the cash in her wallet before you ran off.
(ii)Mr Tran disagrees with the Crown’s submission that the scale of the offending is sufficient to aggravate the offending, with reference to the comments on scale made in R v AM.13 Mr Tran notes you were unable to fully penetrate the victim’s vagina because your penis was flaccid.
[25] The Crown submits there are no mitigating features of your offending. Mr Tran does not argue otherwise.
Case law
[26] Having regard to R v AM14and to other cases referred to by the Crown,15 Ms Hamilton submits that your offending falls within band 2, and that the Court should adopt a starting point of 10 years’ imprisonment.
[27] Mr Tran submits that the cases of R v Stusky,16 and R v Batt,17 cited in R v AM as examples of cases with starting points at either the higher end of band 1 or the lower end of band 2, are comparable. He submits that your offending falls on the cusp between bands 1 and 2, having one culpability factor present to a moderate degree and
12 Sentencing Act, s 8(a).
13 At [93].
14 R v AM,above n 6.
15 R v Rapana [2021] NZHC 3407; R v King [2019] NZHC 537; R v Takiari [2007] NZCA 273.
16 R v Stusky [2009] NZCA 197.
17 R v Batt [1987] 1 NZLR 760 (CA).
two present to a low degree. He therefore submitted in his written submissions that the starting point should be between seven years, six months and eight years’ imprisonment. In oral submissions Mr Tran amended that submission to a starting point of around eight years’ imprisonment.
Discussion
[28] I am satisfied that your offending falls within band 2. That is the band that encompasses starting points of seven to 13 years’ imprisonment. I find that there was an element of pre-meditation in your conduct. You were carrying a knife in a way that was visible to the victim. You observed her in the car park. You followed her up the walking track, knowing she was alone and that the area was isolated. She was vulnerable because of that. You had spoken to her and would have known she was a foreigner in this country. You attacked her when she started to walk back down the hill. There you were at a distance from the car park and possible observation.
[29] The violence involved in throwing the victim to the ground and restraining her by pinning her to the ground was aggravated by the threatened use of the knife twice during her ordeal. You first used the knife when you already had the victim pinned to the ground.
[30] The scale of your offending included sexual indignities and degradations when you sucked the victim’s breast and masturbated yourself, ejaculating over her top. You then took off her trousers and penetrated her vagina with your penis three or four times. You used the knife again to enable you to carry out your assaults. Although you only managed partial penetration that is not in any way mitigating.
[31] The victim was travelling alone and should have been safe in this country. In terms of physical harm, you did not use a condom which increased the risk of pregnancy or infection. R v AM identifies this as increasing the harm inflicted by rape.18 As well, there was the immediate trauma and the long-term psychological effects I have referred to.
18 At [44].
[32] Having regard to the decision in R v AM and the case law referred to by the Crown and your lawyer, the appropriate starting point for your offending is nine years’ imprisonment.
Step two
[33] At step two, the Court must adjust the starting point up or down with reference to aggravating and mitigating factors personal to you, as the offender. This includes a consideration of whether a discount is warranted for the guilty plea you have entered.
Aggravating features
[34] You are currently serving a sentence for a charge of sexual violation by rape and two charges of unlawful sexual connection, in relation to the 2020 offending.
[35] The Crown submits that your conviction for the 2020 offending is an aggravating feature of your 2006 offending. The Crown therefore suggests that the 2020 conviction should be treated as a “prior” conviction, and argues for a 10 per cent uplift on this basis. I do not accept that submission.
[36] The Act identifies prior convictions for similar offending as an aggravating feature of the offender because it indicates a failure to learn from previous sentences. In your case, your offending pre-dates both the 2020 offending and your conviction for the 2020 offending.
[37]There is therefore no basis for an uplift at this point in the sentencing process.
[38] In addition, you have five dishonesty convictions, and two convictions for assault on a child, which date back to your youth. I accept that these are historic, as they all occurred between 1987 and 2001. There is no basis for an uplift for these offences.
Mitigating features
Section 27 report
[39]The Court has been provided with a report pursuant to s 27 of the Act.
[40] The Crown submits that your self-reporting regarding physical and sexual abuse in childhood is inconsistent and uncorroborated. You have also reported that you suffered head trauma as a result of a car crash, but there is no evidence of hospitalisation or a police report of this event. The Crown says the Court should give these matters very little weight in view of what it says is your unreliable reporting.
[41] The Crown accepts that you have a history of alcohol abuse but submits that there is no nexus between alcohol use and your sexual offending. You have told two report writers that you were extremely intoxicated when you raped the victim and that you do not recollect the incident. However, the victim reported that you walked briskly up the hill and appeared physically active. She did not report any signs of intoxication. The Crown further notes, you separately reported to the writer of the Provision of Advice to the Court report (PAC report) that you recalled the incident and that the sexual contact was consensual.
[42] Mr Tran says that you have disclosed a history of significant personal trauma, violence, sexual violence, loss, and instability in personal relationships leading to the development of acute alcoholism from age 16. Mr Tran says that alcohol features in your violent offending. The writer of the s 27 report links your experiences of violence and sexual violence when you were young to difficulties with psychological and emotional development, addiction to alcohol and cannabis, general behavioural issues and criminality. Mr Tran refers to Dr Pillai’s report which offers the opinion that you suffer from a chronic but mild post traumatic stress disorder resulting from your experience of being sexually traumatised over a protracted period of time in your young adulthood. Dr Pillai also considers that you have a “severe alcohol disorder”.
[43] Mr Tran submits that, given the clear causative link between your personal trauma and your offending, the Court should impose a discount in the vicinity of 15 per cent for mitigating personal factors.
[44] I accept the Crown’s submission that there is no nexus between your alcohol use and your sexual offending. But as I understand the submission made on your behalf, you do not rely on your alcohol use per se but rather your personal history which lead to your misuse of alcohol. And it is that personal history which Mr Tran refers to.
[45] This Court has previously said the evidence of the presence of either systemic deprivation or social disadvantage more generally on a defendant need not be elaborate.19 The Court of Appeal has observed in Carr v R, that recognition of a causal linkage between matters relied on in a s 27 report and the offending does not require the Court to be satisfied matters are the proximate cause of the offending.20
[46] I acknowledge that your background relied upon does arise from self-reporting. However, while there are differences and inconsistencies across the reports there is some general consistency in your disclosed history of personal trauma, sexual violence, loss and instability in personal relationships across a number of the reports. I am satisfied that the reports identify aspects of your background and personal circumstances in your childhood and as you were growing up, that can be viewed as linked to your offending.
[47] I consider a discount of 10 per cent for mitigating personal factors is appropriate.
Guilty plea
[48] Despite DNA analysis identifying you as the offender, you denied culpability for the 2006 rape for 18 months prior to entering your guilty plea on 12 August 2021, two months prior to the scheduled trial date. Your denial involved alleging that the sexual activity had been consensual. You told the writer of the PAC report that you were “pleading guilty to get it over with”. You now say that you have no recollection of the offending. The Crown says that a discount of no more than 10 per cent is appropriate in these circumstances.
19 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50].
20 Carr v R [2020] NZCA 357 at [64].
[49] Mr Tran submits that your guilty plea should attract a discount of 20 per cent. He says that the delay in entering your guilty plea was warranted given that: your legal representation changed on or around 6 October 2020; counsel hired a private investigator to assist, given that the offending was historic; and resolution discussions with the Crown on 4 August 2021 resulted in the withdrawal of one charge (aggravated robbery). Mr Tran submits this constituted a change in circumstances.
[50] The credit that is given for a guilty plea must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case.21 Even taking into account the matters raised on your behalf, a discount of 20 per cent is not warranted.
[51] In all the circumstances, including those raised by the Crown and by Mr Tran, I consider a discount of 10 per cent for your guilty plea is appropriate.
Remorse
[52] Mr Tran further refers to what he says is your remorse as expressed in a letter you have written, addressed to the victim. An excerpt from the letter is as follows:
If I could take back what I have done to you I would but I cannot do this so all I can do is say I am so very sorry to you and your family for all the pain and discomfort I have put you through.
[53] I have to say I have a degree of scepticism about your remorse and whether it is truly genuine. The letter is brief and, in my view, superficial. There is also your denial of culpability for 18 months prior to entering your guilty plea in August last year and the fact that the letter was provided to the Court on the eve of your sentencing. I note that Mr Tran simply refers to what he says is your remorse and does not submit a separate discount should be given for that reason and I do not give one.
21 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].
Final sentence and totality assessment
[54] Adopting a starting point of nine years’ imprisonment and applying a discount of 20 per cent (being 10 per cent for personal factors and 10 per cent for your guilty plea) gives a final sentence of seven years and two months’ imprisonment.
[55]I now have regard to the principle of totality.
[56] The Crown submits that, while the offending warrants an end sentence of around 10 years’ imprisonment when assessed as a standalone offence, an overall sentence, taking into account the sentence passed on you in 2020, in the range of 14 to 15 years is appropriate. Your 2020 sentence, as I have said, was nine years’ imprisonment. So, the Crown submits a cumulative sentence (that is a sentence that will be added to your 2020 sentence) of five to six years’ imprisonment is appropriate in light of the totality principle.
[57] Mr Tran submits that your 2020 offending was markedly more serious than your 2006 offending for which you are now being sentenced. Mr Tran says that a starting point of between seven years, six months and eight years’ imprisonment is appropriate for your 2006 offending, when assessed alone, although as I earlier noted he amended that to eight years’ imprisonment in his oral submissions. Taking into account mitigating factors, he says this would result in an end sentence of five to six years’ imprisonment. This would bring the overall sentence to over 14 years’ imprisonment. Mr Tran submits that a totality adjustment should be made to bring the overall sentence down to around 11 years’ imprisonment.
[58] As I have just said, I have reached an end sentence for the charge of sexual violation by rape for which you are being sentenced today, of seven years and two months’ imprisonment. When that is added to the sentence of nine years’ imprisonment imposed on you in 2020 that would result in a total sentence of 16 years and two months’ imprisonment.
[59] Counsel are correct when they submit that the Court must consider whether an adjustment is required to reflect the sentence that would have been imposed if you had been sentenced for this offending at the same time as the 2020 offending. The issue
between the Crown and the defence is the size of the adjustment. However, there is a prior question and that is whether an adjustment is required at all.
[60] Individual sentences must reflect the seriousness of each offence.22 However, where cumulative sentences are imposed they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.23 Your offending in 2020 was more serious. You picked up a hitch hiker who was a visitor to New Zealand and who was unknown to you. After travelling part of the way to her destination and when the car was stopped and the two of you were out of the car you told her in abusive language that you were going to have sex with her. You began to choke her; you performed various indecencies on her; you raped her; you forced your fingers into her vagina and you licked her vagina. You then drove off with all her possessions in your car leaving her alone in a rural area. The Judge adopted a starting point of 12 years’ imprisonment. The only personal mitigating factor advanced on your behalf was your very early guilty plea. The Judge gave a discount of 25 per cent for that resulting in an end sentence of nine years.
[61] I am required to now stand back and consider whether an overall sentence of 16 years and two months’ imprisonment is wholly out of proportion to the gravity of your overall offending.
[62] In Ashcroft v R24 the Court of Appeal considered an appeal against sentence involving two sets of offending against two different victims. The first set of offending was between 1978 and 1982; the second was in 2002. The sentencing Judge had adopted separate sentences for each set of offending, and imposed a cumulative sentence. The Judge then said that standing back and looking at the totality of the offending no adjustment was required to accurately reflect the overall culpability.
22 Sentencing Act, s 85(1).
23 Sentencing Act, s 85(2).
24 Ashcroft v R [2014] NZCA 551.
[63]The Court of Appeal agreed and said:
[32] We agree with the Judge’s assessment. A totality reduction is not automatic. It is only if the end sentence is “wholly out of proportion to the gravity of the overall offending” that a discount must be given.
[footnote omitted]
[64] The Court then referred to the sentence and stated that it was a fair sentencing response and no deduction was required as the end sentence was not out of proportion to the gravity of the overall offending.
[65] Standing back in this case I do not consider a sentence of 16 years and two months is wholly out of proportion to the gravity of your overall offending. There were two different victims, the offending occurred on two different occasions many years apart. On each occasion the offending was serious and the impact on the victims has been life-changing.
[66] I will therefore add a sentence of seven years and two months’ imprisonment to the nine year term you are already serving. A sentence of seven years and two months’ imprisonment is the sentence I would impose if I do not impose a sentence of preventive detention.
Minimum term of imprisonment
[67] There is one further matter I need to address before considering preventive detention.
[68] The Court may impose a minimum period of imprisonment (MPI) that is longer than the one-third statutory minimum if it is satisfied that that period is insufficient for all or any of the following purposes:
(a)holding an offender accountable for the harm done to the victim and the community by the offending;
(b)denouncing the conduct in which the offender was involved;
(c)deterring the offender or other persons from committing the same or a similar offence;
(d)protecting the community from the offender.
[69] The Crown submits that in the event a finite sentence is imposed, the Court should also impose an MPI of two thirds of the term of the sentence, which is the maximum available.
[70] Mr Tran submits that the same MPI should be applied to the overall sentence, as was applied by the Judge to the sentence for the 2020 offending, which was 50 per cent.
[71] In my view, I consider that the statutory minimum would be insufficient to hold you accountable for the harm done to the victim, and to fulfil the sentencing purposes of denunciation, deterrence and protection of the community. In other words, an MPI is warranted.
[72] Therefore, if I do not impose a sentence of preventive detention, I consider that an MPI of 50 per cent of the term of seven years and two months’ imprisonment would be appropriate. It would also be consistent with the 2020 sentencing decision.
Preventive detention
[73] Having established the appropriate finite sentence in your case, I must now consider preventive detention. Preventive detention is a sentence of imprisonment for an indefinite period. If imposed, you will be released only when the Parole Board is satisfied you no longer pose a risk to the community. 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.25
[74] There are three pre-requisites that must be satisfied before the Court can consider a sentence of preventive detention. The first two are not in issue. You are a
25 Sentencing Act, s 87(1).
person convicted of a qualifying sexual offence26 and you were over 18 years at the time of committing the offence.27
[75] The third pre-requisite is that the Court must be satisfied that the offender is likely to commit another qualifying sexual or violent offence if released on parole after a finite sentence28 at the sentence expiry date.29 You will be aged (by my calculation) 58 years at the time. If that pre-requisite is met, then the decision whether to impose a sentence of preventive detention involves the exercise of a discretion.30
[76] In considering the third pre-requisite, the Court needs to be satisfied; proof beyond reasonable doubt is not the standard.31 Rather, the Court comes to a judicial decision based on all the evidence available.32
[77] I am required to consider reports from at least two appropriate health assessors about the likelihood of you committing a further such offence.33 Three reports have been provided to the Court for that purpose. The first is dated 1 December 2021 and was prepared by psychiatrist Dr Krishna Pillai. The second, dated 3 December 2021, was prepared for the Court by Dr Ian Goodwin, who is a consultant psychiatrist. Lastly, Dr Willem Louw, who is a registered clinical psychologist, prepared another report dated 21 February 2022.
[78]I briefly address each report in terms of the third pre-requisite.
[79] Dr Pillai notes that to provide the Court with an accurate picture of your risk of future sexual offending is technically difficult. He says such an assessment can only be carried out based on current information regarding your risk and is predicated upon your attitudes, emotional state and the psychosocial circumstances at this time. He says it is possible that your risk at the time of a future release to the community after a period of imprisonment could be less than now due to continued improvement
26 Section 87(2)(a).
27 Section 87(2)(b).
28 Section 87(2)(c).
29 In this case the date will be eight years and one month from 5 June 2020.
30 Leonard v R [2013] NZCA 553 at [7].
31 R v Leitch [1998] 1 NZLR 420 (CA) at 428.
32 R v Carline [2016] NZHC 114 at [44].
33 Sentencing Act, s 88(1)(b).
in your condition, growth in your insight and participation and treatment around your substance abuse and sexual offending. However, he says it is also possible that in the intervening time the risk could increase due to other factors not foreseen at this time.
[80] Dr Pillai used the Static 99R tool to assess your likelihood of re offending. This tool is based on static or unchanging historical factors. You scored 5 which placed you in a category sharing characteristics with offenders at “above average” risk of sexual offending.
[81] Applying a second tool, the SVR20 version 2, Dr Pillai says the assessment concurs with the assessment using the Static 99R tool in that you are a person who has significant risk factors for future offending based on your past sexual behaviour, your emotional instability and lifestyle variables including substance abuse, relationship difficulties and employment difficulties. Dr Pillai refers to your negative attitudes which may interfere with treatment if you feel invalidated. On that basis Dr Pillai reaches an opinion that you share characteristics with a group of sexual offenders who are at above average risk of sexually violent recidivism based upon your vulnerabilities which have not been addressed at this time.
[82] Dr Goodwin also applied the Static 99R and the SVR20 version 2 tools. Dr Goodwin notes that the Static 99R is an actuarial assessment instrument for use with adult male sexual offenders. He says it is a well-respected and validated instrument in this field. He says the instrument is designed to estimate the probability of sexual violence reconviction for adult males who have already been charged with (or convicted of) at least one sexual offence against a child or a non-consenting adult. In applying the Static 99R your scores placed you in the moderate to high risk category.
[83] Dr Goodwin notes that the SVR20 version 2 is a 20 item checklist that assesses the risk of future sexual violence. He says it is a well-accepted and validated tool in the assessment of future sexual violence. Dr Goodwin says that looking at the overall picture provided by both tests he is of the opinion that your overall risk of reoffending in a similar matter is moderate.
[84] You refused to speak to Dr Louw. He therefore did not have the advantage of interviewing you which both Dr Pillai and Dr Goodwin were able to do. Dr Louw therefore prepared his report on the basis of written materials available to him. I bear that in mind as I consider Dr Louw’s report.
[85] He also made an assessment using the Static 99R tool. Dr Louw calculated your score based on official criminal history records and other file information held by the Department of Corrections. He assessed your score at 5 which he says places you in the “above average” risk category. He says on average offenders with a Static 99R score of 5 have a sexual recidivism rate that is almost three times (2.7 times) the rate of offenders in the middle of the risk distribution. He also notes that your score for Static 99R is sensitive to your age. Once you reach the age of 60 and all other information remains constant your score will reduce by 3 points and you will then be regarded as falling in an average risk category for future risk offending. (I note that you would reach the age of 60 after your parole eligibility date).
[86] Dr Louw also made an assessment using the Violence Risk Scale: Sexual Offence Version (VRS-SO). He assessed you overall as being in the Level IV(a) "above average” risk category. For this instrument the probability of sexual reoffending is based on both static and dynamic risk predictors.
[87] Dr Louw refers to his analysis of the 3 VRS-SO dynamic subscale scores and notes you had scores that indicate that the following dynamic items were related to your recidivism risk: sexual deviant lifestyle, offence planning, criminal personality, interpersonal aggression, poor emotional control, limited insight into your offending, poor community support, impulsivity, poor treatment compliance and deviant sexual interest.
[88] In summary, in considering both static and dynamic risk factors for future sexual offending, you were assessed by Dr Louw to present with a high risk of committing a serious sexual offence in future until you reach the age of 60.
[89] I consider there is sufficient evidence, based on the opinions expressed in these three reports, to find you are likely to commit another qualifying sexual offence if you
were released on your parole date. This finding satisfies what I have called the third criterion set out at s 87(2)(c) of the Act.
[90] I must now consider whether to exercise my discretion to impose a sentence of preventive detention. Section 87(4) sets out a range of considerations that I must take into account in considering whether to impose such a sentence:
(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.
Pattern of serious offending
[91] The Crown submits that the two incidents of sexual violation by rape are very similar in kind.
[92] I have already briefly mentioned the facts of your 2020 offending. I repeat them here with fuller detail. You targeted a female who was travelling alone in the North Island. She was aged 24 and hitchhiking. You picked her up. On doing so you would have become aware she was a visitor to New Zealand. You drove to a secluded area and assaulted her. You tore her clothing and held her in a choke hold. You touched her breasts and groped her vagina, kissed her mouth, licked her neck, sucked her breasts and forced your fingers into her vagina. You raped her while she was pushed against the outside of your vehicle, then inside your vehicle on the back seat, then again on the grass. You slapped her and choked her, placing your arm across her throat. You abused her verbally while violating her. You left her on the ground and
drove away with her belongings, including her cell phone, in your car. The victim had to walk to the nearby highway and flag down a vehicle to call Police.
[93] In his sentencing notes, the District Court Judge found that the offending was aggravated by planning and pre-meditation; deception; victim vulnerability; actual violence; extreme sexual violence; and extreme emotional harm to the victim. The Judge found that your offending fell at the lower end of band 3 in R v AM. As I have already mentioned, he set a starting point of 12 years’ imprisonment.
[94] Mr Tran submits that two isolated incidents 14 years apart do not warrant the Court finding a pattern of serious offending. He refers to Dr Pillai’s report which describes your offending as a “low frequency event with a sameness to [the] offending pattern (negative emotional state, solo female traveller taken to a remote location)”. Dr Pillai does not consider your offending behaviour to be unpredictable or compulsive.
[95] In my view, there are significant similarities between your 2020 offending and the offending for which you are being sentenced today. This indicates a clear pattern of serious sexual offending.
[96] You targeted female tourists travelling alone in New Zealand. You had never met them before. You were initially civil towards both victims, acting the part of a friendly local. You observed them in an isolated location, which was unfamiliar to them as they were visitors to the area. You then ensured they were further isolated, by driving one victim to a remote cemetery, and following the other along a scenic walking track. You made sure that no one was available to come to their assistance should they cry out. You sexually violated and performed indecencies upon each of them. The sexual assaults were violent and degrading. When they resisted or struggled, you used violence or the threat of serious violence to force their compliance. You abandoned them in the open, far from assistance.
[97] The offending which occurred second in time was more prolonged, involving detention of the victim and more significant violence - including strangulation. You
spent more time establishing a relationship of trust with the victim, only to abuse it. This indicates an escalation in the seriousness and scale of your offending.
[98] Taken together, the two offences, although 14 years apart, establish a clear pattern of opportunistic (but with an element of pre-meditation), manipulative, degrading and violent sexual offending.
Seriousness of harm to the community
[99] I accept the Crown’s submission that the harm caused by your offending to the two victims is extreme. The effects on the wider community are therefore also significant. Mr Tran accepts this submission.
[100]The writer of the PAC report concluded:
Mr Bridgeman has demonstrated a tendency for reactive violence as well as violent sexual offending: this combination, without treatment, renders Mr Bridgeman high risk of harm to others. The psychological impact, both immediate and long term, for the victims of his offending, result[s] [in] an assessment of very high risk of psychological trauma.
Tendency to commit serious offences in the future
[101] As I have already said, I consider that you are likely to commit another sexual offence in the future. At this point I do not repeat the evidence I have already referred to. In addition, the PAC report-writer relevantly observes:
Mr Bridgeman is assessed high risk of further sexual and violent offending if he is released without the appropriate treatment and support, however, he has clarified he wants no such treatment and specified he will ensure he has no conditions upon release.
[102] In addition to the parts of his report that I have already referred to, Dr Pillai observes:
… It is worth noting that Mr Bridgeman's pathway to offending has been strongly influenced by his use of alcohol. Mr Bridgeman's unstable mental health, lack of self-management and lack of a plan for addressing these issues in my opinion without substantial intervention to produce a plan of community support and supervision, Mr Bridgeman will continue to pose a risk to the community.
[103]Dr Goodwin says, however:
... There [are] some protective factors in that he acknowledges the nature and extent of his offending and also the apparent link between his offending and substance misuse. In my opinion, Mr Bridgeman's risk of reoffending in the future could be at least partly mitigated by abstinence from alcohol and other drugs, as well as one-to-one psychological treatment.
[104] In my view, the opinions of the three expert report-writers provide a strong indication that you present a significant risk to the community of further serious sexual offending.
Addressing the causes of your offending
[105] This is a key issue for the Court. Although it is only one of the factors for the Court to consider, it is an important one in your case.
[106] The Crown submits that you are in need of intensive therapeutic treatment to mitigate the risk that you will reoffend in a similar way. Ms Hamilton submits however that your attitude to engaging in treatment in a custodial setting is poor: you have demonstrated a lack of trust in the Department of Corrections; animosity towards Department of Corrections staff; and an unwillingness to engage with staff or treatment.
[107] Ms Hamilton refers to the PAC report, dated 16 September 2021, which relevantly states:
Mr Bridgeman is steadfast in his stance that he does not want programmes, treatment, appearances before the New Zealand Parole Board, or interactions with Case Management, and is accepting of the time he will serve, likely to the full term, as a result.
[108] When asked if there was anything in particular you wished the Court to be aware of at sentencing you said:
I want to serve my time and have no conditions post-release. I have told my Case Manager (prison) that I want nothing to do with Case Managers or Probation, nor do I ever want to go before the Parole Board. I do not want any treatment or programmes inside.
[109] Ms Hamilton submits that although you appear to have become more receptive to the possibility of treatment in custody once you realised that the Court was considering a sentence of preventive detention, you have consistently indicated that you do not want to be subject to release conditions or Community Probation oversight on parole.
[110] Mr Tran submits there is another way of viewing what you have said to the different report writers. He agrees there is a conflict between what the PAC report writer states and the other reports in terms of your willingness to engage in treatment for your sexual offending. Mr Tran relies on the s 27 report, which says that you told the report-writer that you had not had any rehabilitative assistance while in prison. You said that your case manager was unhelpful when you asked for treatment. Mr Tran says you have expressed frustration about not being recommended any courses. He also notes that Dr Pillai referred to your willingness to attend appropriate programmes to address your risk factors and reduce the risk of reoffending.
[111] Mr Tran submits that you are willing to undertake treatment for your problems, and that this indicates that any risk of reoffending will be significantly reduced. Mr Tran says that you have successfully completed residential alcohol rehabilitation programmes twice in the past and remained sober for several years at a time. Mr Tran suggests that this indicates you may succeed at rehabilitation for your sexual offending.
[112] In general, Mr Tran submits that your attitude to treatment has changed during your experience in custody, and this accounts for the difference between the information provided by the PAC report-writer and the reports of Dr Pillai and Dr Goodwin. Mr Tran says that you have now come to terms with your offending and you accept the facts as set out in the Summary of Facts. He says that you have developed insight and now express a desire to engage with treatment.
[113] If I were to accept the Crown submission the Court might reach the view that your change in attitude towards treatment indicates that you take a cynical or strategic attitude to treatment in custody, as a means of reducing your sentence or obtaining release without conditions. Your attitude might also indicate that you do not recognise
that you are at risk of reoffending, or understand why release conditions and probation officer oversight is both necessary and important to reduce this risk.
[114] However, I consider there is an evidential basis to allow the Court to accept the submissions made on your behalf by Mr Tran. Dr Pillai says:
46. Mr Bridgeman stated he had moved to Auckland Prison from Springhill on the promise he could engage in a sex offender treatment programme and also “anger management” but stated this had not happened when he arrived at Auckland Prison. He felt aggrieved and cheated by this … He stated he did want to “get help” and believed he needed to do anger management and adult sex offender treatment programme. He felt aggrieved he was not offered this help now so on that basis stated he did not want to have “anything to do with them with I get out” …
…
78. With respect to future plans, Mr Bridgeman’s plans are not realistic. He wants to complete a full period of imprisonment so that he could return to the community without supervision. This appears to be a protest in response to what he perceives as a lack of support and care whilst he is in custody. However he does not demonstrate a negative attitude towards completing a programme.
…
88. Mr Bridgeman has indicated that he is willing to address the causes of his offending. He has not yet had the opportunity to do so.
[115]Dr Goodwin says:
69. Mr Bridgeman did not express any negative views towards any potential interventions that could occur in prison for him.
[116] With some hesitation, because it is apparent you would not engage with Dr Louw the psychologist employed by the Department of Corrections for a s 88 report, I accept that you are willing to engage in treatment and that you acknowledge it is necessary. Although it is apparent at this stage you lack insight into the causes of your offending. I also accept that you have not been given the opportunity to engage in intensive rehabilitation in prison prior to sentencing. The absence of previous rehabilitative interventions specifically targeting sexual offending, while it counts in favour of a finite sentence, is not determinative in the assessment of whether or not preventive detention is to be imposed. But as I have said it is an important issue in your case.
Preference for lengthy determinate sentence
[117] The final consideration for the Court in exercising its discretion is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[118] Mr Tran submits that the fact that you have never undergone a lengthy sentence of imprisonment (as well as not having received rehabilitative treatment) conventionally weighs in favour of a finite sentence. I accept that submission. Mr Tran says further that you do not have a history of non-compliance with supervision or any recorded prison misconduct.
[119] Mr Tran refers the Court to R v Mitchell, in which a finite sentence with an extended supervision order (ESO) was held appropriate for a convicted sexual offender who was found to have a lack of personal insight, a lack of motivation to engage with treatment and a dismissive attitude to Police and the courts.34 Finally, Mr Tran observes that your likely age when you are released means you are not likely to commit further offending upon release, based on the assessment by Dr Goodwin in this regard.
[120] On this issue the Crown submits the Court can have no confidence you will engage in programmes designed to reduce your risk of reoffending. I have in the end found otherwise.
[121] As Mr Tran submits, there is also the possibility that on your release you will be subject to an ESO. This is a factor I am entitled to take into account.35 As another Judge of this Court has said:36
… An ESO is not an “agreeable alternative” to preventive detention, but it is a “potential safety valve” which shores up the principle that a lengthy finite sentence is preferable to preventive detention. In finely balanced cases, the possibility of an ESO being imposed may tip the balance in favour of a finite sentence.
[footnotes omitted]
34 R v Mitchell [2021] NZHC 2175.
35 R v Mist [2005] 2 NZLR 791 (CA) at [100].
36 R v King, n 15 above, at [84].
[122] This is a finely balanced case. But I am satisfied the scales are just tipped in favour of a finite sentence. That is sufficient to protect the community.
Results
[123]Mr Bridgeman, would you please stand.
[124] I sentence you to seven years and two months’ imprisonment on the charge of sexual violation by rape. This sentence is to be served cumulatively on your current sentence. You will be required to serve 50 per cent of the sentence I have imposed before being eligible for parole.
[125]Stand down please, Mr Bridgeman.
Gordon J
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