R v Chadwick HC Rotorua CRI-2010-063-1728

[2011] NZHC 1821

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-063-1728

THE QUEEN

v

ROBIN WHITIORA CHADWICK

Appearances: C H Macklin for the Crown

H S Edward for the Prisoner

Judgment:      21 October 2011

SENTENCING REMARKS OF PRIESTLEY J

Solicitors:

C H Macklin, Crown Solicitor, Rotorua. Email: [email protected]

H S Edward, Barrister, Rotorua. Email: [email protected]

R V CHADWICK HC ROT CRI-2010-063-1728 21 October 2011

[1]      Robin Whitiora Chadwick, I sentence you today on a single charge of rape. You were found guilty at the end of a jury trial on 9 June this year.  Your offending took place in September 2009, your victim being a 13 year old girl who was at that stage a member of your household.  She was also a relative of your current partner.

[2]      I record this sentencing process has been somewhat protracted.  We are now

4½ months past the jury’s verdict, which is a lengthy period of time.  That delay has been caused by the need to get the reports of two health assessors on you so that the possible sentence of preventive detention could be scrutinised.

[3]      The facts of your offending, which I record you deny, need to be mentioned briefly by me so that people reading my sentencing notes can see the context of the sentence I impose on you.

[4]      At the time of the offending you were 55 years old.  You were, in a loose sense, regarded by the 13 year old complainant as her uncle.   During 2009 the complainant   had   exhibited   certain   behavioural   problems   which   manifested themselves at school and at home.  She had on occasions, to the concern of you and your partner, been inhaling fly spray from an aerosol can.

[5]      On the day of the offending you and she were alone in your home in Rotorua. The household was in fact in the process of moving from that home to another family property near Lake Tarawera. Your partner and her mother were both away at the time.  You took the complainant in a vehicle to the Tarawera property.  You there produced fly spray.   Despite her resistance, you in the end forced her to inhale a significant quantity of the fly spray which had the effect of dazing her or semi- stupefying her.  You then fondled her on her back and buttocks and pushed her on to a couch.  Her ability to resist you was minimal.  You forced her legs apart, pulled down your trousers and then raped her.   After this violation took place you got dressed, told her not to tell anyone, and returned with her to the Rotorua property.

[6]      One of the alarming features of your offending, Mr Chadwick, was that you had, in 1994, accumulated two convictions for rape for which you were imprisoned in Taranaki. Your victims there were younger than your current victim was.

[7]      I have already noted that  you protest  your innocence.   Your partner has apparently stood by you.  You did not give evidence at your trial, as was your right. As presiding Judge all I can say on that issue is the complainant gave her evidence in a fairly calm and resilient fashion, exhibiting stress on occasions.  Clearly the Jury believed her evidence.

[8]      I  say  something  now  about  the  victim  impact  statements  which  I  have received and read.  There are two.  One is from your victim’s mother.  The other is from the victim herself.  I need say little about the victim’s mother’s statement.  She refers, understandably, to the financial burden which your offending has placed on her with the need to travel between Auckland and Rotorua.  Distressingly for both her and for your victim the victim’s father died of cancer around the time of the trial. The victim herself describes the pain and discomfort she experienced when she was being forensically examined by medical staff after the rape occurred.  The use of fly spray has caused her difficulties with her memory.  She states that she feels scared, ashamed and stressed, particularly because she was not able to tell her father what had occurred.  She describes herself as feeling like an outsider, and distances herself from people in her life.  She sees in herself a change in her personality, not being as bubbly as she was, less certain about approaching others, and exhibiting more shyness.  She has learned, so she says, not to judge others.  After the offending she sought solace in smoking and drinking.  She used to love the Rotorua area where her whanau were clearly based.   She now wishes never to return other than for the purpose of visiting her father’s grave.

[9]      Turning now to your personal circumstances and the presentence report,  the presentence report recommends, of course, imprisonment.  Better information about you, however, is contained in the two health assessors’ reports which were directed to examine the possibility of a preventive detention sentence.  There is a lot of useful background information in the reports that were prepared by Misses Venning and

Bellve-Wack.  I review some of that personal information very briefly because it has relevance.

[10]     You are currently aged 57.  You are in poor physical health and have for the last 11 years been treated for a number of medical conditions, including cholesteatoma.   You have a hearing impairment.   You have suffered from acute pancreatitis and hypertension.  You also appear to have suffered from a heart attack. You are a victim of sleep apnoea and have needed mechanical assistance for that for approximately 12 years.   Certainly the health professionals saw no sign in you, however, of mental illness or any other abnormality.

[11]     You were born in Wanganui, the eighth of 15 children. Your father died when you were seven years old.  This was something of a relief to you.  Your mother had problems with alcohol throughout your childhood.  Your education was somewhat limited as a result, although ironically you seem to have been able to improve your reading and writing skills when you were imprisoned in the 1990s.  You were also, it would seem, the victim of some sort of abuse in the hands of your elder half sister. You  had  difficulties  and  were  placed  in  social  welfare  care  when  you  were  a teenager.  You seem to have worked usefully through most of your life, including on a farm.   At the time of your offending you were, as counsel has reminded me, employed part-time as a security guard even though you were mainly dependent on a sickness benefit.  From your mid-teens you have abused alcohol.  You have entered into a number of heterosexual relationships over your lifetime the first being when you were 18 years of age.  You had four children by that relationship although you were, in the mid-1970s, imprisoned as a result of a serious assault on your partner. You entered into another eight year relationship by which you had two children.  It was  during this  relationship  that  your  earlier offending occurred,  that  offending being in the mid 1980s although you were not brought before the courts until 1994. You are currently living in another stable relationship which has lasted for some years.  I note that your partner has stood by you.

[12]     You have given to the health professionals and also to the probation officer a different version of events.  It is your belief that the complaint against you was false

because your victim was angry with your partner.   You also have some critical

comments to make about the victim’s immediate family.

[13]     I turn now to your previous convictions Mr Chadwick.   These have some relevance to sentencing you today.  You have over the last 39 years accumulated 24 previous convictions.   Most of these relate to drink driving offences and driving whilst disqualified, numbering seven.  You have another nine convictions for various offences involving dishonesty. You have one offence for violence in 1974 to which I have already referred.  In fairness to you, however, you have had no convictions of any significance,  so  far  as  I am  concerned,  since 1999  and  the dishonesty and violence offences lie well in your past.

[14]     Relevantly, however, you have two convictions, as I have twice mentioned, in

1994, which relate to full sexual intercourse against two young girls under the age of

12.   The offending took place in 1984.   You were sentenced to four years imprisonment in 1994 for that offending by Justice Hillyer.

[15]     So far as aggravating and mitigating features are concerned, most of the aggravating features of your offending are tied up in matters of culpability which I will have to consider when sorting out a start point for your rape conviction. Obviously, however, your previous sexual offending must be weighed by me as a significant aggravating feature.   Your counsel rightly points out that there are no mitigating factors which I can use to assist you.  You do not have an unblemished record.  You went to trial and you have, because of the view you take of matters, not expressed any remorse.

[16]     The Court has been assisted by counsel’s submissions.  The Crown does not seek, in the circumstances, a preventive detention sentence, although I need briefly to examine that.  The Crown considers, and correctly so, your offending sits at the lower end of Band 2 of the Court of Appeal’s current guideline judgment of R v AM.[1]

[1] R v AM.[2010] 2 NZLR 750 (CA).

The Crown urges on me a start point of somewhere between eight to 10 years with an uplift for the aggravating feature I have mentioned.  Mr Macklin also seeks the

imposition of a minimum term of imprisonment.

[17]     Mr Edward,  for his  part,  does  not  argue against  the start  point  and  end sentence which I have indicated.   He does, however, submit that in all the circumstances, given that a long finite sentence is going to be imposed on you, it might not be necessary to impose a minimum period of imprisonment.   Instead, submits counsel, that is a matter which could be left to the Parole Board when parole eligibility cuts in.

[18]     I have already indicated, Mr Chadwick, I do not intend to impose a sentence of preventive detention.  The Crown, given your 1994 convictions, was justified in asking the Court to obtain two health assessors reports.  It did so out of an abundance of caution.  The assessors see your risk of re-offending sexually as high on one scale and moderate on another.  But the gap between your sexual offending is 26 years and stable relationships and no relevant offending have supervened.   Ms Bellve-Wack assessed your risk of re-offending as follows:

Research shows that the recidivism risk of all sex offenders – rapists, incest perpetrators and extra-familial child molesters – declines dramatically after age  55.    As  it  is  likely  that  Mr  Chadwick  would  receive  a  significant custodial sentence, given the seriousness of his current and past offending, ageing (sic) alone would reduce his risk for sexual recidivism, especially for rape, quite considerably.

Furthermore, Mr Chadwick has a variety of serious health problems and it is unlikely that he would be physically able to engage in the previous type of offending.

In terms of reintegration into the community a determinate sentence might be preferable as existing support systems would be more to be available (sic).

It is also important to note that Mr Chadwick’ (sic) sexual offending against a  victim under  sixteen  makes  him eligible for  an Extended  Supervision Order for up to ten years should his regular probationary period be seen as insufficient.   It would appear that such an arrangement would provide sufficient protection for the community.

[19]     I agree with that assessment, all of which points against imposing preventive detention on you.   In any event the mandate of the s 87(4) factor, of a lengthy determinate sentence being preferable, is conclusive in your case.

[20]     So what should that sentence be.  I accept the Crown submission that your offending sits at the lower end of the R v AM rape Band 2 of seven to 13 years.

Factors which are aggravating and relevant to your culpability are your victim’s youth, compared with your own age at the time; her vulnerability as a member of your household; the vulnerability as a result of you stupefying her with fly spray; and a limited degree of premeditation the offending taking place in an isolated location.  Consistent with R v S[2] I consider an 8½ year start point is appropriate.

[2] R v S [2009] NZCA 210.

[21]     To  reflect  the  aggravating  feature  of  your  previous  historical  offending against young women, which in terms of R v Arthur[3] requires an uplift to vindicate the deterrence principle, and also the need to protect public protection factors, R v Ward,[4] I intend to uplift from 8½ years to 10 years.

[3] R v Arthur [2005] 3 NZLR 739.

[4] R v Ward [1976] 1 NZLR 586.

[22]     A 10 year sentence would see you with a parole eligibility once you have served three years and four months.  In terms of s 86 I consider that is insufficient to protect the community, or to denounce or deter your sexual offending in this instance against young women.

[23]     Therefore  in  terms  of  s 86(2)  I  intend  to  impose  a  minimum  term  of imprisonment of 50% or five years.  I note that Mr Macklin, who urged a minimum term being imposed on you, did not quarrel with that figure.

[24]     My recommendation to the Parole Board is that as the date of your release approaches your response to courses and your risk be carefully assessed with a view to seeking an extended supervision order if safety issues remain a concern.

[25]     So stand up at this point please Mr Chadwick.

[26]     The sentence I impose upon you is one of 10 years imprisonment.   I also order that you are to serve a minimum term  of imprisonment of 5 years.

[27]     Thank you. Take him down.

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Priestley J