R v Charlton

[2018] NZHC 740

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2016-009-1405

[2018] NZHC 740

THE QUEEN

v

BRENT WILLIAM CHARLTON

Hearing:

19 April 2018

Appearances:

B Hawes for the Crown

C M Ruane for the Defendant

Judgment:

19 April 2018

SENTENCING NOTES OF DUNNINGHAM J

Introduction

[1]    Mr Charlton, you are here for sentencing, having pleaded guilty to one charge of rape, and four charges of unlawful sexual connection, two of which are representative charges. These charges relate to three different victims and they span over a 14 year period commencing in 2000. Each of these charges carries a maximum period of 20 years’ imprisonment.

[2]    As you have heard from the lawyers, there is little if any, difference on what period of imprisonment should be imposed if I impose a finite sentence. The only real issue before me today is whether I should impose a minimum period of imprisonment and whether you should be subject to preventive detention. Before I discuss those

R v CHARLTON [2018] NZHC 740 [19 April 2018]

issues I need to give a short outline of the offending and the other material that I have before me that is relevant.

The offending

Ms F

[3]    I am going to refer to the victim in the first set of offending as Ms F. You met her through a mutual friend in 1999. Initially you were paying her for sex. However, you then began to intimidate her into doing sexual acts which she did not want to do. She would try to refuse you when you could not pay her, but when she refused you would become verbally abusive to her and intimidate her into having sexual intercourse with you. She believed that the more she said “no” to you, the more you enjoyed it.

[4]    The circumstances which led to the charge of rape occurred in early 2000. You pushed her through the door to the bedroom and shoved her towards the bed while she was trying to get out one of the two doors to that room. You abused her verbally. She told you to leave her alone. You refused, even when she started crying and repeated her refusal. You then raped her.

[5]    The charge of unlawful sexual connection occurred in the same sequence of events, where although she continued telling you not to, you anally raped her.

[6]    After these events, you continued to stalk her. That included parking in her driveway and tooting the horn to let her know you were there. She took out a Protection Order against you on 10 May 2000.

Ms B

[7]    I will refer to your second victim as Ms B. Again you met her through a mutual friend. It seems that you obtained a set of keys to her house without her knowledge and came into her house uninvited for the first time during the night. You then stayed at her house over a three week period during 2012. During that time you forced her to perform oral sex on you four to five times a day and you anally raped her on a number of occasions. You also used physical force on her repeatedly and got her to

perform oral sex on you. You threatened to kill her and her family, and you were physically abusive towards her. During these occasions you slapped her and pulled her hair. If she told you to go, you would reply saying things such as “I’m here bitch, like it or lump it” and “I’m not going away”.

[8]    You also pleaded guilty to a representative charge of unlawful sexual connection with Ms B relating to anal rape. Again, you used physical abuse and verbal abuse to achieve this. You would “crack her over the head” and slap her in the face and not let her out of the room. Your violence resulted in her thinking it was best to get it over and done with and stop resisting.

[9]She also took out a Protection Order against you because of your actions.

Mr P

[10]   Your third victim, Mr P, was someone you shared a prison cell with in Christchurch Men’s Prison.

[11]   You befriended Mr P, who was initially in the cell next door to you, by offering him your vegetables. He accepted and was convinced by you that it would be easier to give him food if the two of you shared a cell. It was arranged that he would move into your cell that night. The charge that you have pleaded guilty to of unlawful sexual connection with Mr P, occurred that night. You had covered the window flap of the cell with paper so Corrections staff could not see what happened. You also told him that you would “smash him” if he yelled or tried to summon help. You then ignored his repeated refusals to engage in sexual behaviour and you anally raped him. When he asked you to stop and not to hurt him, you said “shut up and don’t complain”.

Victim Impact Statements

[12]   It is clear that each of your victims has suffered greatly because of your actions. Ms F says that she had a significant bout of mental health issues after her experiences with you, including six suicide attempts. It has also compromised her ability to parent her children.

[13]   Ms B says that she could not bear to live in the house where you had abused her. She ended up losing her home in a mortgagee sale. She says she “feels like [she] has lost [her] actual life since all this occurred”. She has ongoing nightmares about you and considers her anger and anxiety issues have escalated considerably because of your actions.

[14]   Mr P says he experiences nightmares, depression and suicidal thoughts when he thinks about the offending. He says that you have “taken [his] happiness in life and dignity away”.

Sentencing

[15]   In sentencing you today I must have regard to the purposes and principles of the Sentencing Act. As your lawyer accepts, the key principles in the current sentencing exercise are to hold you accountable for the harm done to your victims, to provide for the interests of the victims of your offending, to denounce your conduct and to protect the community from you.

[16]   As you heard, the guideline judgment for this type of offending is the Court of Appeal decision in R v AM.1 While the Crown notes that some of this offending against Ms F predates this decision it does not seem that there has been such a change in the approach taken to sentencing for this sexual offending that I need to depart from the guidelines in that decision. In any event, any finite sentence of imprisonment I impose will be limited by the totality principle.

[17]   I do not need to explain the guidelines in R v AM for the purposes of this sentencing exercise. Both the Crown and your lawyer are largely agreed on how those guidelines would apply in this case. Having regard to the aggravating features of the offending in each case, were I to sentence in respect of each victim alone, the finite sentence would be between 8 and 9 years for Ms F, between 10 and 12 years for Ms B and around 12 years for Mr P. However, in totality, the Crown says that a starting sentence of 17 to 18 years’ imprisonment would apply and your lawyer substantially

1      R v AM [2010] NZCA 114.

agrees, saying that a starting point for sentence of 16 to 18 years is inevitable. I accept that a starting point of 17 and a half years’ imprisonment is justified.

[18]   The Crown then submits that there should be uplift for the fact that your offending against Mr P occurred when you were serving a two year sentence for contravening protection orders. In respect of your guilty pleas, the Crown submits that a modest discount of around five per cent would be appropriate to reflect the lateness of your plea for the offending against Mr P.

[19]   Your lawyer accepts that the offending while serving a custodial sentence can be an aggravating factor. However, he says that is minor and it should not justify any significant uplift in sentencing. He also suggests that because you appear as a first offender for sexual offending, that despite you having over a 100 prior convictions on other matters, you should receive a discount for previous good character. While recognising that the guilty plea relating to the offending against Mr P was late, he submits it still spared Mr P from having to give evidence and you should receive a discount that reflects that benefit.

[20]   I accept that there should be an uplift for the offending occurring while imprisoned. I would propose an uplift of six months. However, I consider it is untenable that you receive a discount for previous good character. While none of your prior convictions were for sexual violence, they do include a range of offences for related behaviour including for violence generally and for breaches of a protection orders.

[21]   In relation to a discount for your guilty plea, I acknowledge the pleas relating to the offending against Ms F and Ms B were earlier than that for Mr P. However, these pleas all did spare the victims from having to give evidence. I acknowledge that, particularly in sexual cases, where giving evidence can be traumatising for victims, there should be an incentive to plead guilty.  I would give a discount of just over    10 per cent, taking the finite sentence back to 16 years.

[22]   If I imposed a finite sentence then the Crown submits that a minimum period of imprisonment (MPI) should be imposed. I can impose an MPI if I am satisfied that the date you would otherwise be eligible for parole would be insufficient to:

(a)hold you accountable for the harm done to your victim and the community;

(b)denounce the conduct in which you were involved;

(c)deter you or other persons from committing the same or a similar offences; or

(d)to protect the community from you.

[23]   In this case, the Crown says that the aggravating features in your offending mean that the usual minimum non-parole period would not be sufficient to achieve these purposes. If preventive detention is not imposed, the Crown seeks an MPI reflecting at least 40 per cent of the end sentence.

[24]   Your lawyer candidly acknowledges that it is highly unlikely that if you received a finite sentence that you would be released on parole at any stage before completing the full length of your sentence. As such an MPI is not necessary he says. However, that is to focus on whether an MPI is needed to protect the community from you. That is not the only consideration. I consider that to hold you accountable for the harm done to your victims and to denounce the conduct in which you were involved, an MPI reflecting 50 per cent of the end sentence would be appropriate.

[25]   Having reached that view, I now turn to the issue of whether preventive detention should be imposed. The test for that is set out in s 87 of the Sentencing  Act 2002. However, the Crown acknowledges that in respect of the offending against Ms F, eligibility for preventive detention was governed by s 65 of the Criminal Justice Act 1985. However, that distinction makes no practical difference in this case to the question of whether preventive detention is available.

[26]   Both lawyers recognise that you are eligible for preventive detention because of the type of offences involved and because you were over the ages of 18 and 21 during all three sets of offending. The third requirement is that the Court is satisfied that you are likely to commit another qualifying sexual or violent offence if you are released at your sentence expiry date of the finite sentence that the Court would otherwise impose.

[27]   To assist me on that issue and to assist me on the matters I have to take into account before deciding whether to impose a sentence of preventive detention, I have the reports of two health assessors; one by Mr Ghazi Metoui, a senior forensic psychologist, and the other by Mr Paul Carlyon, a registered clinical psychologist.

[28]   Section 87(4) requires the Court, when considering whether to impose a sentence of preventive detention, to take into account five matters. I will discuss each of these issues in turn.

Is a pattern of serious offending disclosed?

[29]   First is whether any pattern of serious offending is disclosed. I am satisfied that the offending before the Court discloses such a pattern. It spans a period of 14 years involving three different victims and in three different contexts. I agree with the Crown that you target vulnerable people and you use violence and threats of violence to achieve that offending. I do not accept the fact that you have no previous convictions for offending of a sexual nature changes anything. The fact you have only been charged with and convicted of these offences recently does not change the fact that there has been a serious offending history.

The seriousness of the harm to the community caused by the offending

[30]   While your lawyer says that, other than in the most general terms, this offending has not caused harm to the community, it is clear that your offending has repercussions beyond the individual victims. That is made clear in the individual victim impact statements. Their families have been affected and the victims themselves have been unable to participate fully in society since the offending. They

have needed extended support to cope with the consequences of the offending. Your offending clearly does harm the community.

Is there information indicating a tendency to commit serious offences in the future

[31]   The next issue is whether there is information which indicates a tendency to commit serious offences in the future. I am satisfied there is. Mr Metoui has explained the outcome of various risk assessments he undertook. He concludes, taken together, and in consideration of all the other available information, that on the balance of probabilities, your static and dynamic risk factors indicate a high risk of future reoffending in a similar manner to the index offending. He notes that you meet the criteria for a diagnosis of psychopathy, and testing places you in the very high range of psychopathy characteristics, and that further raises your risk status.

[32]   Mr Carlyon also discusses the outcome of testing to assess your risk of further offending. Again, I am not going to discuss the details of that. Suffice to say his conclusion is that you pose a very high risk of committing further sexual offences.

[33]   It is not just the results of those various risk assessments that suggest your risk of reoffending is high. You have made it clear to both report writers that you have no remorse whatsoever for what you have done. You said you enjoyed the “power and control” you were able to achieve with your victims and the fear you caused them. You said that you would rape and kill your female victims if you were given the opportunity. While Mr Metoui notes that you seem to see your future in custody and he considered the possibility that you were exaggerating your comments to achieve this, he equally considered that the fact you would not be dissuaded by the prospect of imprisonment meant his risk assessment was accurate.

[34]   I have no doubt that you pose a high risk of committing serious offences, including sexual offences in the future.

The absence of, or failure of, efforts by the offender to address the cause or causes of the offending

[35]   Probably the most serious concern I have in this case is your failure to address the cause or causes of offending. You have been afforded the opportunity to participate in treatment programmes. You were seen for two individual psychological treatment sessions in 2001 but the referral was closed when you failed to attend further scheduled appointments. You participated in eight treatment sessions in between March and May 2009. That was concluded because of your ongoing ambivalence about attending and your limited progress. You attended four individual psychological treatment sessions between July and October 2012. Treatment concluded when you were recalled to prison. A further nine treatment sessions occurred between January and March 2014 which focused on the safety plan for the upcoming appearances in Court. While you said you were open to the special treatment unit to address matters related to your sexual offending risk, you expressed concerns that you may “experience boredom” and you did not complete a programme.

[36]   The most recent treatment report records that your treatment concluded because of your escalating sexual arousal during sessions and that this was a barrier to effective therapeutic alliance and the provision  of useful risk reducing treatment.  Mr Carlyon concludes that treatment “has not resulted in any sustained behaviour change or skill acquisition”.

[37]   More concerningly, Mr Metoui’s reports that you indicated that during extensive treatment on a one-to-one basis from Corrections psychologists, you incorporated your treating female psychologists into a sadistic rape fantasy. He considers that your high score for psychopathy affects both your overall risk status and poses a significant barrier to your likelihood to successfully participate in treatment. Most powerfully of all he says that he is “unconvinced that [you] will ever be able to meaningfully engage in treatment and this is owing to your psychopathic personality structure, your lack of desire to change, and the extent of your strong desire and urge to sexually reoffend”.

[38]   In my view, you have shown no desire whatsoever to address the cause or causes of your offending despite being given opportunities to do so.

Will a lengthy determinate sentence provide adequate protection for society?

[39]   Finally, I must also consider whether a lengthy determinate sentence is preferable if that provides adequate protection for society. I do not consider it does. Not only do you have a significant pattern of serious offending, which you are unable or unwilling to address through treatment, you have continued to display a contempt for your victims and a lack of empathy which is as extreme as I have seen. You appear fixated on obtaining sexual gratification through any opportunity that is afforded to you. Because of the completely indiscriminate and opportunistic nature of your offending I struggle to see how any plan could be devised to minimise that risk on release.

[40]   For these reasons, I am not satisfied that a 16 year sentence would adequately protect society. I have no confidence that at the end of that sentence your attitude to your victims and, potential victims, or your sense of entitlement to sexual gratification no matter what harm it achieves, will have changed in any way.

[41]   Accordingly, I am satisfied that you are someone who is likely to commit another qualifying sexual offence if you were released on the expiry date of any finite sentence. This is a clear case where a sentence of preventive detention is required to provide adequate protection for society.

[42]Please stand.

[43]   Brent William Charlton, on each of the charges of rape and unlawful sexual connection you are sentenced to preventive detention with a minimum period of imprisonment of eight years.

[44]Stand down.

Solicitors:

Raymond Donnelly & Co., Christchurch C M Ruane, Barrister, Christchurch