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 difficulty you had as a teenager and young adult, due to negative treatment from peers about your sexual orientation.

[7]                 You have 14 criminal convictions, 13 of which are for sexual offending. In December 1995 you were convicted on one charge of indecent assault on a boy aged 12-16, and sentenced to nine months’ supervision. In June 2006, you were convicted of nine charges of sexual offending that occurred between 2004–2005. There were three victims of that offending, aged between 13 and 15 years. You were sentenced to nine years’ imprisonment. In July 2008, you were convicted of three more charges of sexual offending that occurred between 2005–2006. There were two victims of that offending, one aged 15 and one aged 22. You were sentenced to six months’ imprisonment.

[8]                 You were released from prison on parole in June 2015. You were subject to an extended supervision order (ESO), imposed in December 2015 for a term of 10 years. One of the standard conditions of the ESO was the prohibition of any association or contact with anyone under the age of 16 years. The current offending occurred while you were subject to that ESO.

Approach to sentencing

[9]                 As you will be aware, the primary issue before me today is whether to sentence you to a finite term of imprisonment, or preventive detention. I will first determine the appropriate finite sentence, before considering whether to impose preventive detention. I will then consider the imposition of a minimum period of imprisonment.

Finite sentence

[10]              In sentencing you today, I have regard to the purposes of sentencing in s 7 of the Sentencing Act 2002, including holding you accountable for the harm you have caused, denouncing your conduct, deterrence, and protection of the community. I also have regard to the principles of sentencing in s 8, including taking into account the

gravity and seriousness of the offending. I also take into account the aggravating and mitigating factors in s 9.

[11]              Before determining your finite sentence, I will consider the submissions counsel have made. In determining your finite sentence, I will first adopt a starting point. I will then consider any personal aggravating and mitigating factors.

Submissions

[12]              Mr Walker, counsel for the Crown, submitted a starting point between three years, nine months and four years’ imprisonment is appropriate. He submitted the following factors are relevant in assessing the starting point: there was a 44 year age gap between you and the victim, who was aged 13 years at the time; the offending involved full penetrative intercourse; the sexual conduct occurred on 10 occasions over a three month period; and there was a commercial element to the offending.

[13]              Mr Walker submitted there are two personal aggravating factors warranting an uplift of one year: your previous convictions; and the fact you were subject to an ESO at the time of the offending.

[14]              Mr Walker submitted a minimum period of imprisonment of two-thirds of the finite sentence would be appropriate.

[15]              Your counsel, Mr Stone, submitted a starting point of three years, six months’ imprisonment is appropriate. He submitted there are two aggravating features of the offending: the age difference; and the fact that fully penetrative sex occurred on a number of occasions.

[16]              In terms of your personal circumstances, Mr Stone submitted you should receive two discounts: first, for taking steps to shorten the proceedings or reduce their cost (by electing a judge-alone trial, and by agreeing significant facts and proceeding with the trial on the sole basis of the defence);8 and second, because your age will make a sentence of imprisonment harder for you than it would be for a younger man.9

8      Sentencing Act 2002, s 9(2)(fa).

9      Section 8(h).

Mr Stone also conceded an uplift of three to six months is appropriate, for your previous convictions and the fact you were subject to an ESO at the time of the offending.

[17]              Mr Stone submitted a minimum period of imprisonment of half to two-thirds of the finite sentence would be appropriate.

Starting point

[18]              In terms of the charges you face today, the Court of Appeal has observed that a starting point of four years is appropriate where aggravating factors of the offending are abuse of trust, a significant age gap, full penetrative sex on a number of occasions, and significant adverse effects on the victim.10 The Court observed other aggravating features, such as grooming or abusive and demeaning behaviour, may also increase culpability. Where there has been no breach of trust, but some aggravating features are present, a lower starting point will be appropriate. The Court noted that a starting point of four years “should be seen as no more than a mid-point in the range of offending where there is moderate culpability.”11

[19]              I have considered cases where starting points have ranged from three years, nine months’ imprisonment, through to five years’ imprisonment.12

[20]              I consider the aggravating features present in your offending are the significant age gap between you and the victim, and the fact that penetrative intercourse occurred on a number of occasions. In light of this,  I adopt  a starting  point  of three years, six months’ imprisonment.

Personal factors

[21]I turn now to your personal aggravating and mitigating factors.

10     R v Johnson [2010] NZCA 168 at [17], citing R v H [2008] NZCA 237 at [17].

11 At [17].

12     R v Johnson, above n 10; Jackson v Crown Law Office [2014] NZHC 2425; R v Page [2016] NZHC 2762.

[22]              There are two aggravating factors warranting an uplift: your previous convictions,13 and the fact the offending occurred while you were subject to an ESO. I will discuss your previous convictions in more detail when I come to analysing preventive detention,14 but for now I record you have 13 previous convictions for sexual offending. I impose an uplift of six months to reflect these aggravating factors.

[23]              I do not consider that your cooperation at trial, or your age, warrant a discount. In relation to your trial in particular, I note the victim was still compelled to give evidence. There are therefore no mitigating factors.

Conclusion: final finite sentence

[24]              This results in a finite sentence of four years’ imprisonment. I would also impose a minimum period of imprisonment of two years (50 per cent of the finite sentence), for the purposes of holding you accountable for the harm you have caused, denouncing your conduct, and protecting the community.15

Preventive detention

[25]I turn now to consider whether to impose a sentence of preventive detention.

Submissions

[26]              Mr Walker submitted a sentence of preventive detention is necessary, to protect the community.

[27]              Mr Stone submitted preventive detention is not necessary. In particular, he submitted your current offending is less serious than your previous offending, the victim has not suffered any ongoing harm, and your current support network can lower your risk of reoffending.

13     Sentencing Act, s 9(1)(j).

14     See below at [32]–[41].

15     Sentencing Act, s 86(2).

The law

[28]              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.16 As you have been convicted of qualifying sexual offences, I am able to impose a sentence of preventive detention if I am satisfied that you are likely to commit another qualifying offence if released at the sentence expiry date.17 In exercising my discretion, I must take into account the following factors:

(a)any pattern of serious offending disclosed in your history;

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

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

(d)the absence of, or failure of, efforts by you 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.

[29]              I pause here to note that s 88 of the Sentencing Act provides that I must not impose preventive detention unless I have considered reports from at least two appropriate health assessors about the likelihood of you committing a further qualifying offence. I have a psychological assessment dated 29 June 2020 from Robyn Boyd, a registered clinical psychologist, prepared under s 88. The Court also received psychiatric reports prepared under s 88 from Dr Greg Young, consultant psychiatrist, and Dr Blair Leslie, consultant forensic psychiatrist. However, these two doctors both reported that the scope of their role as psychiatrists is to determine risk related to mental illness; because you do not have a mental illness, they advised that they were not able to discuss the likelihood or risk of you reoffending.

16     Section 87(1).

17     Section 87(2).

[30]              Your counsel,   Mr   Stone,   commissioned   a   psychiatric   report   from   Dr Gordon Lehany, a consultant forensic psychiatrist. He recorded that he was instructed to “specifically give an opinion regarding [your] risk of reoffending”, for the purpose of this Court considering a sentence of preventive detention. Dr Lehany did express concerns about the use of some of the tools relied on by Mr Boyd, and about giving a “specific risk estimate for reoffending” without certain information (for example, how you might respond to treatment in future). In his opinion, “a global assessment of reoffending risk without taking adequate account of supervision arrangements and future treatment response is overly simplistic”. However, he also said, “notwithstanding …, there are matters which can be usefully considered regarding reoffending risk in this case.” He then went on to discuss a range of factors that are likely to increase your risk of further offending, as well as some factors which may lower your risk. I consider his report meets the requirement in s 88 of being “about the likelihood of [you] committing a further qualifying sexual or violent offence”, because he addresses the various factors involved in making such an assessment.18

Pattern of serious offending

[31]              Your history shows a clear pattern of serious sexual offending against boys over  a  significant  period  of  time.  Including  the  current  offending,  you  have  17 convictions for sexual offending, against seven different victims, aged between 13– 22 years.

[32]              You were first convicted of sexual offending in 1996, for offending that occurred in 1995 when you were 34 years old.   The victim in that offending was    14 years old, and you were working together on a farm. You removed his shorts and underwear and touched his penis, before asking him to perform oral sex on you. You were convicted of one charge of indecent assault on a boy aged 12-16, and received a suspended sentence of six months’ imprisonment and nine months’ supervision.

18     Section 88(1)(b).

[33]              Your second set of convictions for sexual offending were recorded in 2006, for offending that occurred in 2004–2005 when you were 42–43 years old. There were three victims, aged between 13–15 years.

[34]              You met the first victim when he was nine years old, and his family lived close by. After four years of grooming, when the victim was 13 years old, you touched his genitals. When he tried to escape, you held him down. Your offending continued over the next year or so, and included masturbation and oral sex. You told the victim not to tell anybody, and gave him $50 cash.

[35]              You met the second victim when he was 15 years old, and offered him a job in your contracting business. You started sending him text messages of a sexual nature. You invited him to your house, and offered him money in exchange for sexual contact, but he declined. You later kissed him and rubbed his thigh, and continued to send him sexual text messages.

[36]              You met the third victim when he was 15 years old, who also worked for you. You performed oral sex on him, and masturbated him.

[37]              In this second set of offending you were convicted of nine charges in total (four of unlawful sexual connection with a boy aged 12-16, four of indecent assault on a boy aged 12-16, and one of inducing a boy aged 12-16 to do an indecent act), and sentenced to nine years’ imprisonment.

[38]              Your third set of convictions for sexual offending were recorded in 2008, for offending that occurred in 2005–2006 when you were 44 years old.  There were   two victims, one aged 15 and one aged 22.

[39]              The first victim was 15 years old, and was also someone who worked for you. You touched his leg while he was working, and began rubbing his penis through his trousers while asking him if it felt good. He said no, and left.

[40]              The second victim was a 22 year old man you met in prison. You offended against him on two occasions: first, by rubbing his thigh and buttocks; and second, by rubbing your penis against him.

[41]              In this third set of offending you were convicted of three charges in. You were sentenced to six months’ imprisonment, to be served in addition to your existing nine- year sentence.19

[42]              You were released from prison on parole in June 2015, and were subject to an ESO from December 2015. Your current offending occurred over a period of three months in 2018, while you were still subject to that ESO.

[43]              I note Dr Lehany has characterised your current offending as a “reduction in frequency and severity of sexual violence”. While I agree it may be possible to say your current offending does not represent an increasing pattern of offending, it nonetheless clearly fits within your pattern of offending. You sought out a pubescent boy (although he told you he was 18, I emphasise that the trial Judge found you had not taken reasonable steps to confirm this), and repeatedly engaged in sexual conduct with him. I also note that from another perspective, your current offending is in fact an escalation, as it involved repeated anal penetration.

Seriousness of the harm to the community caused by the offending

[44]              Although we have not heard from the victim of the current offending, it is obvious that sexual offending of this nature causes extremely serious harm to victims and the wider community. In addition to the current victim, I again note the impact on the victims of your 2004–2005 offending,20 and your 2005–2006 offending.21 Those victims described their lives being ruined and their complete loss of trust in adult men, as well as the significant impact your offending had on their families.

19  The Judge indicated that he would have imposed a sentence of two years imprisonment in respect of the first victim, and one year in respect of the second victim, were it not for the existing sentence: R v Brown HC Napier CRI-2005-020-3954, 30 July 2008 at [45].

20 R v Brown HC Napier CRI-2005-020-1382, 26 June 2006 at [11]-[14]

21 R v Brown, above n 19, at [5]-[7].

[45]              I reject the submission that your current offending has not caused serious harm to the victim. His unwillingness to provide a victim impact statement is not to be interpreted as being proof that no harm has occurred to him. It cannot be said that a person at 13 years old is not vulnerable, especially given you were 57 at the time of the offending. The harm is also exacerbated by the fact that the offending occurred on a regular basis, over a period of approximately three months. The money and gifts given to the victim after each incident will have further normalised the offending.

Information indicating a tendency to commit serious offences in future

[46]              I am satisfied there is sufficient information indicating a tendency to commit serious sexual offences in the future. Mr Boyd concluded there is a high risk you will engage in future sexual offending. Dr Lehany advised “a global assessment of reoffending risk being high is not justified”, and concluded the risk of further offending may have been reduced from the level it was prior to your last imprisonment, and more treatment may further mitigate the risk of reoffending. Although it was not possible for Dr Lehany to “give a specific risk estimate for reoffending”, he did identify a “range of vulnerabilities which are likely to increase the risk of further sexual violence.” As discussed below, I am satisfied that these factors, when viewed together with Mr Boyd’s assessment, show you pose a high risk of reoffending.

[47]              You show limited insight into your current offending. You told Dr Lehany that you did not know the victim was only 13 years old, and you “had done everything reasonable to check this.” When questioned by Dr Lehany, you told him you would not do anything differently if you were in a similar situation in the future. Dr Lehany recorded that you do not consider the victim to be a victim, but rather that you were in a relationship (which you would seek to continue if released from prison). Mr Boyd also recorded that you lacked insight into any potential issues with your method of establishing the victim’s age.

[48]              You gave evidence today attempting to put Dr Lehany’s evidence in context and attempting to shore up your position to convince this Court that you had gained greater insight than he gave you credit for. You did not. You were quite grudging and you still minimised your culpability.

[49]              You also continue to show limited insight into your past offending, and you lack self-awareness. You emphasised to Dr Lehany that the victim of your 1995 offending was “happy to keep working for [you]”, and denied much of your 2004– 2006 offending. Dr Lehany recorded that you accused the victims of lying, and consider yourself to be a victim of miscarriages of justice. Mr Boyd also recorded that you blamed victims. He also recorded that you often entice victims with money or employment, which you then “distort as an act of generosity, consistent with [your] sense of being a ‘good’ person, rather than a grooming process.”

[50]              You also show “clear and extreme minimisation” of past offending, and attitudes which condone sexual violence.

[51]              Dr Lehany and Mr Boyd both noted that you also have trouble establishing intimate and non-intimate relationships, which contributes to your risk of offending.

[52]              Balanced against that, Dr Lehany highlighted three factors which may lower your risk of offending: your supportive relationship with your sister; that there has not been an escalation in sexual violence; and your age. However, I am not persuaded any of these factors sufficiently address your risk of reoffending.

[53]              Although I acknowledge your sister is genuine in her desire to help, I do not think this relationship is enough to significantly lower the serious risk you pose to the community. In particular, I note her presence in your life did not prevent your current offending. Mr Stone noted that your current offending occurred while your mother was sick, which increased your feelings of loneliness. He submitted the availability of accommodation at your sister’s home now would reduce your feelings of loneliness and increase the level of supervision she can provide, and therefore reduce your risk of reoffending. Mr Stone also submitted the local Lions Club has agreed to support you. While I accept these circumstances may be slightly different than those that existed at the time of your current offending, I cannot be satisfied that this support network will provide sufficient protection for the community, especially given your current offending occurred while you were subject to an ESO.

[54]              I am not persuaded by Dr Lehany’s characterisation of your current offending. I again note the introduction of penetration to your offending pattern. I also emphasise the vulnerability of a 13 year old, and consider this to be very serious offending.

[55]              In terms of your age, Mr Boyd confirmed that research shows there is typically a reduction in sexual offending around your age. The courts sometimes decline to impose preventive detention on that basis.22 However, that is not always the case, and the courts have imposed sentences of preventive detention of offenders in their 60s,23 and 70s.24 Given your current offending occurred at the age of 57, Mr Boyd confirmed that advancing age is not a protective factor in your case.

Absence of, or failure of, efforts to address the cause or causes of the offending

[56]              Prior to the current offending, you completed the Department of Corrections specialist child sex offender treatment programme at Te Piriti. Although it appears you made some gains from this treatment, and spoke positively of it to Mr Boyd, this treatment has obviously not been successful in preventing you causing further harm through your sexual offending. It is also clear that you continue to lack insight into your offending, despite this treatment.

[57]              I have considered Dr Lehany’s views on the success of your treatment. While acknowledging you have reoffended following treatment, Dr Lehany considered the pattern of offending to be different, which suggests a change has taken place as a result of treatment, and further change may be possible. While I acknowledge there may be some truth in this, I am not currently satisfied that treatment (past or future) will keep the community safe from harm caused by your sexual offending.

Principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[58]              The courts have firmly endorsed the principle that a lengthy determinate sentence is preferable, if this provides adequate protection for society.

22     Rubick v R [2016] NZCA 8 at [24]-[26].

23     Rubick v R, above n 22.

24     Walker v R [2019] NZCA 549.

[59]              I must take into account the possibility of an imposition of an ESO as a relevant factor in determining whether to impose preventive detention.25 The availability of an ESO may tip the balance against preventive detention for “lower-level sexual offenders.”26 Given your current offending occurred while you were subject to an ESO, I do not think that an ESO would be sufficient to protect the community from you.

[60]Again, I also note your age does not appear to be a protective factor.

[61]              I also note that when sentencing you in 2006, the Court declined to impose preventive detention “by a fine margin only”,27 and despite your high risk of reoffending you were given the benefit of the doubt.28 The Court again declined to impose preventive detention again in 2008, largely because you were at that time still serving a lengthy term of imprisonment, and you had not yet received psychological treatment in prison.29 Your current offending shows that this lengthy determinate sentence, together with treatment, was not sufficient to protect the community.

Conclusion on preventive detention

[62]              Given your pattern of serious sexual offending despite various interventions, the seriousness of the harm to the community caused by your offending, the risk of you reoffending in the future, and the inability of a determinate sentence to adequately protect society, I am imposing a sentence of preventive detention on you.

Minimum period of imprisonment

[63]              Mr Walker submitted a minimum period of five years’ imprisonment is appropriate.

25     Leota v R [2018] NZCA 200 at [19].

26     R v Parahi [2005] 3 NZLR 356 (CA) at [87].

27     R v Brown, above n 20, at [57].

28 At [58].

29     R v Brown, above n 19, at [32].

[64]              Section 89 of the Sentencing Act governs the imposition of a minimum period of imprisonment where preventive detention is imposed. The term must be at least five years, and must be the longer of:30

(a)the minimum period of imprisonment required to reflect the gravity of the offence; or

(b)the minimum period of imprisonment required for the purposes of the safety of the community in light of your age and the risk you pose.

[65]              The Court of Appeal has held that this is a two-step process.31 First, I must assess what minimum period properly reflects the gravity of the offending, by considering the principles of punishment, denunciation, and deterrence.32 Usually, this period will reflect the period that would have been imposed under a finite sentence.33 In your case that would have been two years. I consider that reflects the gravity of your offending.

[66]              Second, I must assess whether that period is adequate for the purposes of community protection in light of your age and the risk you pose to the community’s safety.34 If that period adopted is inadequate to protect the community, then I must increase it. In your case, I am concerned about the level of risk you pose based on your history, lack of response to treatment, and the lack of insight you show into the harm you have caused. Balanced against that, I acknowledge the protection afforded to the community by a sentence of preventive detention itself, and the role of the New Zealand Parole Board in assessing risk.35 I consider five years sufficient to protect the community.

[67]I impose a minimum period of imprisonment of five years.

30     Sentencing Act, s 89(2)(a)-(b).

31     R v C [2003] 1 NZLR 30 at [11]; Ellmers v R [2013] NZCA 676 at [46]–[48].

32     Ellmers v R, above n 31, at [47].

33     At [47]; R v Taylor [2018] NZHC 2170 at [82].

34     Ellmers v R, above n 31, at [48].

35     At [57]; R v C, above n 31, at [28].

Result

Strike warning

[68]              You are now subject to the three strikes law under s 86A of the Sentencing Act. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists the “serious violent offences”.

(a)If you are convicted of any serious violent offences, other than murder, committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

(b)If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

Child sex offender register

[69]              You are already registered on the Child Sex Offender Register, and I confirm you will continue to be for the remainder of your life.36

Sentence

[70]              I sentence you to preventive detention on the four charges of sexual connection with a young person under 16. You will serve a minimum period of imprisonment of five years.

Doogue J

Solicitors:

Crown Solicitors Office, Napier

Souness Stone Law Partnership, Hastings

36     Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 35(1)(a).