R v Brown - [2020] NZHC 3320

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-020-003579

[2020] NZHC 3320

THE QUEEN

v

ROBERT JOHN BROWN

Hearing: 15 December 2020

Counsel:

C Walker for the Crown R Stone for Mr Brown

Judgment:

15 December 2020

JUDGMENT OF DOOGUE J

[1] Robert John Brown, you appear for sentence having been found guilty of four charges of sexual connection with a young person under 16 (two of which are representative charges),1 at a judge-alone trial.2

1 Crimes Act 1961, s 134(1); maximum penalty 10 years’ imprisonment.
2 R v Brown [2020] NZDC 1624.

R v BROWN [2020] NZHC 3320 [15 December 2020]

The offending

[2] The offending occurred between 1 July and 22 September 2018. You met the victim on Grindr, an online dating application. The victim was 13 years old. Over the period of the offending, you turned 57.

[3] On 10 occasions, you collected the victim, mostly from him home, and took him to your home. Each incident involved you inserting your penis into the victim’s anus. Most of the incidents also involved you inserting your penis into the victim’s mouth, and the victim’s penis into your mouth. On nine of these occasions you paid the victim $200 cash, and on the final occasion you purchased a phone for the victim.

[4] You did not dispute that the offending took place, or that the victim was under the age of 16.3 Rather, the focus of your trial was on whether you could establish a defence to the charge,4 by proving that:5 you took reasonable steps to find out whether the victim was of or over the age of 16 years; you believed on reasonable grounds that the victim was of or over the age of 16 years; and the victim consented. The Judge was not satisfied that you had proved that you took reasonable steps to ascertain the victim’s age, and therefore the charges against you were proved.6

Impact on the victims

[5] The victim has chosen not to provide a victim impact statement, but as I will discuss further later on,7 sexual offending of this type inevitably causes serious and obvious harm to young people.

Personal circumstances and previous offending

[6] You are now 59 years old. You do not suffer from any significant physical or mental health problems. In interviews with mental health assessors, you have disclosed that you yourself were the victim of sexual offending by an adult male when you were 14 years old. You have explained that although you had a mostly stable

3      At [2]-[3].
4 At [4].
5      Crimes Act, s 134A.
6      R v Brown, above n 2, at [29].
7 See below at [44].

home environment growing up, you had a somewhat isolated and lonely childhood where you struggled to maintain friendships. You have also detailed the…

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 Brown

Details

AGLC: R v Brown [2020] NZHC 3320
Case: [2020] NZHC 3320
Decision Date: 15 December 2020

CaseChat Overview and Summary

The case of R v Brown involved the sentencing of Robert John Brown, who had been found guilty of four charges of sexual connection with a young person under 16 years of age. The offending occurred between 1 July and 22 September 2018, with Brown meeting the victim on an online dating application and engaging in sexual acts with him on 10 occasions. The victim was 13 years old at the time, while Brown was 57. The primary legal issue the court had to decide was whether Brown was eligible for preventive detention or if a finite term of imprisonment would be more appropriate.

The court considered the aggravating factors, such as the significant age gap between Brown and the victim, the frequency of the sexual acts, and the commercial element to the offending. It also examined Brown's personal circumstances, including his history of 14 criminal convictions, 13 of which were for sexual offences. The court took into account Brown's previous convictions, his lack of insight into his offending, and the fact that the current offending occurred while he was subject to an extended supervision order. The court concluded that Brown's pattern of serious sexual offending, the seriousness of the harm caused by his actions, and his high risk of reoffending warranted a sentence of preventive detention. The court imposed a minimum period of imprisonment of five years, ensuring adequate protection for the community.

The final orders included a warning under the three strikes law, registering Brown on the Child Sex Offender Register for life, and sentencing him to preventive detention with a minimum period of imprisonment of five years.

Orders