R v Chadwick

[2021] NZHC 3038

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2020-042-001836

[2021] NZHC 3038

THE QUEEN

v

JEFFREY FRANK CHADWICK

Hearing:

12 October 2021

Appearances:

J Webber for the Crown

J Sandston for the Defendant

Sentence:

12 October 2021

NOTES ON SENTENCING OF GRICE J

Introduction

[1]    Mr Chadwick, you appear for sentencing today on one charge of sexual violation by rape.1 The offending occurred in 2014 and the victim was an eight-year-old girl who was in your overnight care. You pleaded guilty, but only a few weeks before the trial.

1      This decision was delivered orally on 12 October 2021. The written version has been edited for grammar, flow, and footnotes, but the substance remains unchanged.

R v CHADWICK [2021] NZHC 3038 [12 October 2021]

[2]    I will approach the sentencing by first setting out the factual background of this offending. I will then outline the purposes and principles of sentencing.

[3]    Sentencing has two stages. First, based on other cases with similar facts, I must set a starting point, and in this case, consider the previous offending for which you are serving imprisonment at present. Secondly, I consider any personal mitigating or aggravating factors in your case, which would warrant any discount or uplift to the sentence.

[4]    In a final step I consider the issue of totality of the sentence. You are currently serving a sentence of imprisonment. In this case I must take that into account and determine whether any sentence I impose on you today is to be served at the same time (to which I shall refer as “concurrently”) or added onto the sentence that you are serving (to which I shall refer as “cumulatively”). If it is the latter, I must then consider whether there should be a further discount, to ensure your overall sentence is not wholly out of proportion to the overall offending for which you are sentenced.

Background

Factual background

[5]    Within a few days of moving into a multi-storey apartment block, you met and developed a friendship with the victim’s mother. You visited their address and, on occasions, you would meet with the victim at your room in the apartment block.

[6]    Between 8 May 2014 and 13 September, the victim stayed overnight in your room. She slept in your single bed and you slept on a mattress on the floor. During the night, you got up, unzipped the victim’s pants and took them off. You then put your penis into her vagina. You ejaculated inside the complainant.

[7]    The following morning, the victim’s vagina was “stinging” inside. She had to check after showering if her genitalia had been infected. You denied the allegation when spoken to by the police.

Procedural history

[8]    On 15 September, you pleaded guilty to the charge on which you are now being sentenced. The Crown withdrew a second charge of sexual violation by unlawful sexual connection. You were then remanded in custody until today.2

Purposes and principles of sentencing

[9]    I now turn to the principles and purposes of sentencing. Those purposes and principles are set out in the Sentencing Act 2002 and I must take those into account. The most relevant here are accountability for the harm you have done to the victim and to the community, making you responsible for your actions, providing for the interests of the victim, denunciation and deterrence of your conduct, as well as protection of the community, and assisting in your rehabilitation and reintegration.3 You must be held accountable for the grave and serious harm that you have caused by your offending, to the victim, to her whānau, and to the community. However, any sentence imposed must be consistent with sentences imposed in similar cases,4 and be the least restrictive outcome that is appropriate in the circumstances.5

Starting point

Law

[10]    The guideline judgment R v AM sets out various bands for sexual violation where the lead offence is rape, penile penetration of the mouth or anus or violation involving objects.6 This offending falls under band two, which was described by the Court of Appeal as follows:7

… a scale of offending and levels of violence and premeditation which are, in relative terms, moderate. This band covers offending involving a vulnerable victim, or an offender acting in concert with others or some additional violence. It is appropriate for cases which involve two or three of the factors increasing culpability to a moderate degree.

2      R v Chadwick HC Te Whanganui-a-Tara | Wellington CRI-2020-042-1836, 15 September 2021.

3      Sentencing Act 2002, ss 7(1)(a), (b), (e) and (f).

4      Section 8(e).

5      Section 8(g).

6      R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [90].

7 At [98].

[11]   The Court set out various culpability factors.8 I will refer to these later. Offending in band two attracts starting points of between seven and 13-years’ imprisonment.

[12]   The Court of Appeal considered that the facts in the case of R v Stojanovich were at the lower end of band two, pointing to the elements of grooming, breach of trust and various indecencies. It summarised the case as follows:9

O was the father of V’s sibling. V, female, 17, moved in with him not long before the rape but appears to have viewed him as a father figure, calling him Dad. V was drinking heavily at the time. O invited V to accompany him while he was away on a business trip, buying her alcohol on the way. They went to a motel room with a queen and a single bed. O purchased more alcohol, which V drank. He invited her to lie on the queen bed, which she did in the apparent expectation he would sleep on the single. She fell asleep and woke to find O touching her breasts and fondling her. He then penetrated her with his fingers and went on to rape her from behind.

[13]   The Crown refers to R v AM and makes note of R v Stojanovich. It also cites two other cases that fall within band two and involve a one-off rape of a young victim in which there was also a breach of trust: Donaldson v R and R v Shirley.10

[14]   In Donaldson v R, a 10-year starting point was upheld for one charge of sexual violation by rape, with a three-month uplift for a charge of performing an indecent act on a child under the age of 12 years, with the victim being around eight years’ old. The offender, aged 51 at the time of the offending, was a friend of the victim’s parents, staying frequently at their farm. One morning when the victim’s father was away, the appellant went into the victim’s room and said they would play a game. He removed his clothes, then her pyjama pants, went into her bed and raped her. When leaving her room, he said this would be a secret between them. The victim did not tell anyone about the offending at the time.

[15]   The second charge related to an earlier incident, when the appellant had invited the victim to have a spa with him, and took off her bathing suit, before getting in and out of the spa naked, in order to observe her naked from close proximity. The starting

8      R v AM above n 6, at [34]–[64].

9      R v Stojanovich [2009] NZCA 210. Cited in R v AM, above n 6, at [98] and [102].

10     Donaldson v R [2019] NZCA 338; and R v Shirley [2012] NZHC 2602.

point was upheld by the Court of Appeal based on the aggravating features of the victim’s vulnerability, a breach of trust that, while not as serious of that of a caregiver or guardian, was significant, and the harm to the victim.11

[16]   In R v Shirley, a nine-year starting point was adopted for sexual offending against two sisters. The defendant, aged 26 at the time of the offending, was a friend of the mother, who stayed with the family as he did not have housing at the time. One night when he had offered to babysit so the mother to have a night out, he offended against the first victim, aged 10, by rubbing her buttocks and her vaginal area before pushing a finger into her vagina through her underwear for about 20 seconds. He then went to the second victim’s room, aged 11. He asked if she had ever had sex and if she wanted to have sex with him, to which she replied she had not and refused. After he continually pleaded with her, and she continued to refuse, he went away to get a condom and returned. He put on the condom then raped her, during which he put his tongue in her mouth, and also raped her without wearing a condom. The nine-year starting point for the rape of the second victim was uplifted by two years, taking into account the other offences, including the sexual violation of the first victim.

Discussion

[17]   From these cases, the Crown submits a starting point in the range of nine to ten years’ imprisonment. In particular, it notes the following aggravating factors from those listed in the Court of Appeal decision of R v AM:12

(a)The vulnerability of the victim:13 you were 43 years old at the time, and the victim was eight.

(b)A significant breach of trust:14 you were a good friend of the victim’s mother, who had health issues. She had entrusted you with the care of the victim overnight with you in your room on a number of occasions.

11     Donaldson v R, above n 10, at [18]–[20].

12 See above at [11].

13     R v AM, above n 6, at [42]–[43].

14 At [50].

The Crown says, while you were not a parent or guardian, as in

Donaldson, there was a significant breach of trust.

(c)Harm to the victim:15 this was significant, based on the victim impact statement. The offending has changed the victim’s personality; she has mood swings and gets angry’ she feels upset and sad inside and gets anxious and feels like running away. She describes this feeling as having a gorilla inside of her and it comes out of her body. Her hope is to be a happy girl, do normal kid’s stuff, and wishes to have her innocence again.

[18]   Your counsel accepts that the cases to which the Crown has pointed to are factually similar to the offending in this case and does not dispute the starting point of between nine to ten years’ imprisonment.

[19]   The offending was serious. The offending was very harmful to the complainant. The consequences will follow her for a lifetime and affect her relationships. This type of offending falls within band two. The cases of Donaldson and Shirley are useful comparisons, placing the starting point between nine- and 10- years’ imprisonment. The vulnerability is also exacerbated in this case by your age which places this offending closer to that of Donaldson.

[20]   Having regard to other sentences of relevance applying the Court of Appeal guidelines to this type of offending, and taking account of all relevant principles and purposes of sentencing set out in the Act, I am satisfied that the starting point should be nine and a half years’ imprisonment.

Personal factors

[21]   I now turn to the personal factors. Once the starting point has been determined, it is then adjusted to reflect any aggravating or mitigating factors relating to your personal circumstances. This involves considerations under ss 8 and 9 of the Sentencing Act.

15     R v AM, above n 6, at [44]–[46].

[22]   Nothing in the pre-sentence report supports any discounts in addition to that allowed for the guilty plea and remorse noted in your counsel’s submissions. The pre- sentence report does note, as your counsel emphasised, that you have attended the Kia Marama Special Treatment Unit and you want to re-engage with that treatment. You are not attending that currently due to the present offending. You told the report writer that you had struck up a friendship with the victim’s mother not with the purpose of gaining access to the victim, but that you wanted to help the family. You have acknowledged your sexual attraction toward children. Your counsel reinforced your early and determined expressions of wanting to seek help for that.

[23]   Importantly, the pre-sentence report notes you are at a very high risk of re- offending. It describes your offending as predatory. It involves a pattern demonstrated by your earlier pornography offending, which also involved young children. This earlier offending occurred here and earlier in Australia. The risk takes account the nature of the offending, the vulnerability of the victims and that you had gained the trust of the victim’s mother, in this case, for your own advantage.

Prior convictions

[24]   The Crown submits that your previous New Zealand convictions, which post-date the offending, do not warrant an uplift. I deal with how that should be considered shortly. However, your Australian convictions pre-date the present offending and warrants some uplift. You were charged with one count of using a carriage service to access child pornography material, and one count of possessing child exploitation material as well as 15 counts of indecent treatment of a child under 16 involving taking a photograph or other such activities.

[25]   I am entitled to take into account overseas convictions.16 Such offending is relevant, although not as directly as the present offending for which you are currently serving a sentence. The present offending shows a marked increase in seriousness. In my view, an uplift for the previous Australian offending of six months is justified in this case.

16     R v King CA442/96, 27 May 1998; R v Patterson [2008] NZCA 75; and Patterson v R [2008] NZSC 70.

Guilty plea

[26]   I now turn to your guilty plea. To your credit, you pleaded guilty before trial, although it was only some weeks before trial. The Crown says that your plea came at a late stage and only after propensity evidence had been ruled admissible against you. Your plea, however, did avert a trial and I take that into account, as your counsel urged. I consider that a discount of 15 per cent is appropriate.

[27]   I do not consider that there should be special recognition of remorse in this case. Your counsel did suggest that in oral submissions, but there is no tangible evidence of that, apart from your indication of wanting to seek assistance.

Summary

[28]   In accordance with the methodology set out in Moses v R,17 I take the two-step approach to sentencing. The first step is the starting point, which I have set at nine and a half years. The second step is adding together all the personal factors and subtracting that total from the starting point.

[29]   The 15 per cent guilty plea discount amounts to 17 months. I will reduce this by six months, to take into account the uplift for the overseas conviction that I have referred to earlier.

[30]   This leads to an end  sentence,  in  relation  to  the  present  offending,  of  100 months,18 or eight years and seven months’ imprisonment.

Totality

[31]   You are currently serving a sentence relating to the possession and making of child sexual exploitation material. I must determine whether today’s sentence should be served cumulatively or concurrently with that. The latter means that they are served at the same time. If I were to impose a cumulative sentence that is added to your

17     Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.

18     This was inadvertently stated as 100 months in the oral decision. It should have been 103.

current  sentence,  I  must  also  take  into  account  totality.     The total period of imprisonment must not be out of proportion to the gravity of the overall offending.19

[32]   The Crown submits that any sentence this Court imposes should be served cumulatively with your current sentence but notes some adjustment may be required. Given a starting point of nine to 10 years, the Crown suggests an end cumulative sentence between 14 and a half to 15 years and three months’ imprisonment. It accepts that this is a very significant sentence of imprisonment. Your counsel it as “crushing”.

[33]   Noting your personal factors, affirmation of your guilt, involvement with the Kia Marama programme and the prospect of rehabilitation, your counsel says a very long sentence is not in the community’s overall interest. Mr Sandston submits that 11 years’ imprisonment would be an appropriate sentence, taking totality into account.

[34]   The two sets offending were committed at different times and were of different (albeit related) in nature. A cumulative sentence is appropriate in this instance.

[35]   There are various routes to get to the final sentence. Both counsel initially suggested the cumulative approach. However, in oral submissions the possibility of a concurrent approach with various discounts was canvassed. The end sentence is the focus. I consider that in this case the cumulative approach with totality taken into account is appropriate.

[36]   The earlier offending involved 11 charges of making, six charges of distributing, and five representative charges of possessing child sexual abuse and exploitation material.20 It was serious offending. It involved 1,300 unique images and videos which were recovered, including 2000 deleted files, with online discussions dating back to 2011. Aggravating features included the duration, scale, age of victims, premeditation, extent of online behaviour, revictimization of a victim from an earlier offence, nature of the acts and the persistence of the offending.21 Applying a one year uplift for your offending in Australia and a full guilty plea discount of 25 per cent, the

19     Sentencing Act 2002, s 85.

20     Department of Internal Affairs v Chadwick [2018] NZDC 20716.

21     At [28]–[29].

sentencing Judge arrived at an end sentence of six years and nine months’ imprisonment.

[37]   A cumulative approach adding the present sentence to your existing sentence, would lead to an end sentence of approximately 15 years and four months’ imprisonment. The previous offending was serious. The present offending is more serious. Nevertheless, that end sentence is a very long sentence. Stepping back I accept the submissions of your counsel that it is out of all proportion to the overall offending. Taking proportionality into account, a sentence of 12 years’ imprisonment in total is appropriate, in my view.

[38]   Noting you have served three years of your current sentence; this would result in a sentence of nine years’ imprisonment to serve.

[39]   This gives some encouragement for your rehabilitation efforts, which I have borne in mind.

Minimum period of imprisonment (MPI)

[40]   I did consider whether or not it was appropriate for a minimum period of imprisonment to be imposed. This means there would be a minimum period before which you would not be eligible for parole. However, having heard the submissions of counsel, I do not propose to further explore that here. The sentence is already a long sentence. It will hold you accountable for your actions and the harm done, it denounces your conduct and goes some way to protect the community.

Result

[41]   I sentence you to 12 years’ imprisonment, as a cumulative sentence for the convictions for which you are serving at the moment, and today’s sentence. This includes an adjustment for totality.

[42]   Given you have already served three years of your current sentence, which should be deducted from that, it results in a sentence from today of nine years’ imprisonment.

Grice J

Solicitors:

Crown Solicitor, Whakatū | Nelson, for the Crown.