R v Cheesman

[2017] NZHC 2800

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 203 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-019-2515 [2017] NZHC 2800

THE QUEEN

v

KENNETH HERBERT CHEESMAN

Hearing:	15 November 2017
Counsel:	R Douch for Crown W Dollimore for Prisoner
Judgment:	15 November 2017

SENTENCING NOTES OF WHATA J

R v CHEESMAN [2017] NZHC 2800 [15 November 2017]

Solicitors:           Crown Solicitor, Hamilton

[1]      Mr Cheesman, you don’t need to stand. I will get you to stand at the end of the sentence.

[2]      Mr Cheesman, you face sentence in respect of one charge of sexual exploitation of a person with a significant impairment.1     The maximum penalty is ten years’ imprisonment.  The Crown also seeks a sentence of preventive detention, in terms of s 87 of the Sentencing Act 2002.

[3]      There is no dispute that there is jurisdiction to impose a sentence of preventive detention: you are over 18, being aged 79;2 you have been convicted with a qualifying offence;3 you have been notified a sentence of preventive detention will be considered;4  and there are two reports prepared by qualified health assessors which assess the likelihood of you committing a further qualifying offence.5  To impose a sentence of preventive detention, then, I must be satisfied you are likely to commit another qualifying offence if you are released at the expiry of any finite sentence I might impose.6  On this, I note the health assessors’ reports indicate that you pose a below average to very high risk of committing further sexual offending in the future.

Summary of facts

[4]      Mr Cheesman, you have pleaded guilty to the following summary of facts. Between  December  2016  and  14 April  2017,  the  victim,  who  suffers  from  an intellectual disability, would visit you at your home address. From your first meeting, you encouraged the victim to engage in sexual conduct, including kissing, fondling and vaginal penetration.  During these visits, on five occasions you penetrated the victim’s vagina using your fingers.  On three further occasions, you performed oral

sex on the victim, penetrating her vagina with your tongue.

1      Crimes Act 1961, s 138(1).

2      Sentencing Act 2002, s 87(1)(b).

3      Section 87(1)(a).

4      Section 88(1)(a).

5      Section 88(1)(b).

6      Section 87(1)(c).

[5]      During this time, you purchased a vibrator for the victim.  On two occasions, you used the vibrator to penetrate the victim’s vagina.  You also provided the victim with gifts, including cash and cigarettes, in exchange for the sexual conduct.

[6]      You were aware the victim suffered an impairment, to the extent that it would affect her ability to make decisions or know the consequences of the sexual conduct. You exploited the victim’s impairment in order to facilitate the conduct.

Personal circumstances

[7]      In terms of your personal circumstances, Mr Cheesman, you are 79 years old and of European descent. You are the youngest of five siblings, with three brothers and a sister. You have recounted that you were sexualised at a young age, at seven or eight, by sexual abuse perpetrated by a female family friend, your sister and one of your brothers.  You have been married twice, at the ages of 24 and 32. You have provided conflicting reports about your sexual relationship with your second wife, including that you had a good sexual relationship with her to the PAC report writer, and that your marriage was devoid of sex following 1991. You have been estranged from your wife since 2001.

[8]      You have an extensive history of sexual offending against young females aged between eight and 13 years old, reflecting a pervasive and habitual pattern of offending.  I will attach to this sentence a brief chronology of your convictions and associated offending. In short, you have 29 previous convictions all relating to sexual offending against children, spanning 1969 to 1999. It makes very difficult reading and shows you have a clear propensity to sexually offend against young vulnerable women in a particular way.

[9]      The PAC report, unsurprisingly, assesses you as having a very high risk of reoffending. I have also read the two psychological reports, or health assessor reports, prepared for the purposes of the application for preventive detention.  Those reports conclude, overall, that you pose anywhere between a below average to a very high risk of sexual reoffending within five to ten years.

[10]     The report of Chantelle Terblanche concludes that, notwithstanding exposure to intensive group as well as individual psychological treatment for sexual offending, your offending has persisted.   She observes that overall treatment has had limited outcomes.   She says your pattern of behaviour is consistent with individuals who present as very challenging to treat, respond poorly to treatment programmes, lack motivation and have been found to have greater resistance to change.   Further treatment is therefore considered to be of limited value in the short and long term.

[11]     Her assessment is based on three risk assessment tools: Automated Sexual Recidivism Scale (ASRS), Violence Risk Scale: Sexual Offender version (VRS-SO) and Psychopathy Checklist: Screening Version (PCL: SV). You are assessed as being in the medium-low risk category of ASRS, posing a risk of recidivism of 17 per cent within ten years based on static risk predictors. On the VRS-SO measure, which relies on both static and dynamic risk predictors, you are assessed as in the high risk category, indicating an estimated rate of sexual recidivism of 40.1 per cent within five years and 54.6 per cent within ten years. The report also notes analysis of three dynamic sub-scale scores indicates you have a score similar to those found to be in the

100th percentile for the sexual deviancy sub-scale, and the 95th percentile for criminality. On the PCL: SV measure your total score was above average for offenders, with particularly high scores on interpersonal and affective deficits, indicating a higher probability of committing serious violent offences within two years of release. The writer concludes the presence of psychopathy personality traits and deviant sexual arousal support your membership of a group at a far higher risk of sexual recidivism, and provide barriers to treatment.

[12]     A psychiatric assessment by AJM van Zeist-Jongman also observes that if your health does not deteriorate too much, you will remain at risk of re-offending. He notes that as you have taken part in a sexual offender’s programme twice and still re- offended, it is unlikely a further attempt at treatment at your age will bring any change. However, in terms of your risk, based on standard risk assessment tools, the writer notes your scores indicate an average risk of re-offending in terms of the static 99R assessment tool.  It is also considered to be average to below average in terms of a Structured Risk Assessment Sexual Violence (SVTR-20) analysis.

[13]     Disturbing observations within the reports include the fact you maintained to Mr van Zeist-Jongman that the age difference between you (78 years at the time of offending) and the victim (18 years old), was not inappropriate and that you considered her to be a consenting adult. The PAC report also reveals that you do not appear to be remorseful about your offending.  It appears you were aware of the victim’s disability at a much earlier time than your arrest.  You also referred to your neighbour as a “sheriff” and expressed resentment towards him for what you believe was the role he served in alerting police to your sexual offending.   Ms Terblanche observes your present offending behaviour represents a broadening of your victim profile to include other vulnerable female adults. The principal Corrections psychologist suggests preference for a wider range of potential victims increases your risk of future offending.   It is also noted that neither your age, nor your disclosed health issues, which include the removal of your prostate and an inability to gain an erection, have served as a barrier to further offending.

[14]     I acknowledge today I was handed letters from you containing expressions of remorse. I place little weight on them. They are not reconcilable with your comments to the PAC report writer or your underlying propensity and, indeed, some of the comments in the letters were disturbing, seeking to diminish your culpability.

Victim impact statement

[15]     I have reviewed the victim impact statement of the victim’s mother. She speaks of her loss of trust of old men and anger that the offending has generated in her husband.  She says what happened to their daughter was their “worst fears coming true”. She now feels that she has to stay in contact with her daughter all the time, and that she and her husband have noticed a real change in the victim.  While they accept the sole blame rests with you, the victim’s mother notes during the period of offending the victim became moody and her attitude completely changed.  Since you have been out of her life, that attitude and behaviour has ceased. The victim’s mother also refers to the victim’s sister’s anger, and how her father has suffered. She says he too worries about her daughter.

Sentencing Act 2002

[16]     I now turn to my assessment for sentencing purposes.   I have to take into account the purposes and principles of sentencing outlined in ss 7 and 8 of the Sentencing Act 2002. There is a need to denounce your offending and to hold you accountable for the harm that you have caused. The sentence I will impose is intended to promote a sense of responsibility in you for that harm. There must be deterrence, both against future offending by you and against others who might act similarly. I also have to consider the protection of the public, together with your rehabilitation. In considering whether to impose a sentence of preventive detention, the protection of the community assumes particular significance.7

[17]     I propose to first consider what finite sentence I would ordinarily impose for the offending.  I will then turn to the issue of whether preventive detention should be imposed.

[18]     In terms of a starting point for a determinate sentence, I agree with the aggravating factors identified by the Crown, namely:

(a)       Premeditation – the offending was deliberate and persistent.

(b)The nature and duration of the offending – the offending occurred over a lengthy period and contains a high level of culpability, revealing a high level of predatory behaviour, including grooming.

(c)      Vulnerability – the victim was plainly vulnerable due to her intellectual disability.

(d)Disparity in age – there is a significant disparity in age, though this is an aspect of the previous aggravating factor, given that you should have been aware of the victim’s vulnerability and plainly closed your mind

to it.

7      Sentencing Act 2002, s 87(1).

[19]     In terms of the starting point, I consider the sentence in R v Lindsay8 is apposite. In that case, a starting point of five or six years’ imprisonment was adopted in respect of three representative charges of sexual exploitation of a person with a significant impairment and one charge of exploitatively doing an indecent act on a person with a significant impairment.  There are aggravating aspects to that particular case which are not present here, namely, vaginal and anal intercourse. In that case, the victim had a mild intellectual disability.  The offender was around 56 years of age. Disparity in age, grooming and vulnerability were identified as aggravating factors.9 The offending in that case occurred over a single weekend; by contrast, your offending against the victim occurred over a number of months.

[20]     More recently, in McInnes v R, the Court of Appeal approved a sentence of preventive detention for exploitative sexual connection.10  Mr McInnes’ offending involved him engaging in sexual acts with the victim who had a low level of intellectual functioning over a number of months, including oral sex. At first instance, Collins J had indicated a finite sentence of six years and six months’ imprisonment.11

The aggravating features identified were premeditation, the use of a secret contract, harm to the complainant, the seriousness of the offending, prior sexual offending against underage girls, and the fact the offending occurred while Mr McInnes was subject to an extended supervision order.

[21]     With those sentences in mind, I consider a starting point of five years and six months is appropriate.   I turn then to consider aggravating personal features. Undoubtedly, there needs to be an uplift to reflect that this offending forms part of a pervasive pattern of offending over more than forty years.   The requirement for denunciation is plainly triggered.   I agree with the Crown that an uplift of twelve months is appropriate.

[22]     In terms of mitigating factors, I consider that your age is a factor that should be taken into account.  In reality, at 79, there is a prospect that you may pass away in

prison if a very lengthy sentence is imposed.   Consistent with other authorities

8      R v Lindsay HC Auckland CRI-2009-055-2828, 11 May 2010.

9 At [18].

10     McInnes v R [2016] NZCA 216.

11     R v McInnes [2015] NZHC 3279.

therefore, I apply a further discount of ten per cent.12 You are also entitled to a full 25 per cent discount for your guilty plea.

[23]     In the result, were I to impose a determinate sentence on you, it would be a sentence of four years and four months’ imprisonment, together with a minimum term of 60 per cent or two years, seven months. A minimum term is clearly required in light of your previous offending.

Preventive detention

[24]     The central issue for me to determine is whether you are likely to commit another qualifying offence if released at the expiry date of a finite sentence.

[25]     As the Court of Appeal stated in R v C, Parliament has clearly spelt out that protection of the community from those who pose a significant ongoing risk to the safety of its members is the purpose of preventive detention.13 In forming my view of whether you are likely to commit another qualifying offence, I must consider the factors listed at s 87(4), as well as the content of the two expert reports provided. Additionally, s 89 calls for the imposition of a minimum period of imprisonment of not less than five years whenever an offender is sentenced to preventive detention. As the Court in R v C stated, fixing a minimum period of imprisonment involves two steps: first, the Court must assess what minimum period properly reflects the gravity of the offending; second, the Court must consider whether that period is adequate for public protection purposes.14

[26]     In this particular case, a finite sentence would involve a finite sentence expiry date of approximately March 2022.  By that stage you will be 83. Intuitively this is a strong mitigating factor. Nevertheless, as stated by the Court of Appeal in McInnes v R and Rubick v R, considerable care is needed when assessing a submission that age

will act an effective protective factor.15  While the Courts there were dealing with

12     KHP v R [2015] NZHC 452, M (CA91/2012) v R [2013] NZCA 325.

13     R v C [2003] 1 NZLR 30 (CA) at [5].

14 At [11].

15     At [21](e), Rubick v R [2016] NZCA 8 at [21]-[26].

younger men, the present offending occurred, over a lengthy period, when you were aged 78.

[27]     Regrettably, therefore, notwithstanding your advanced age, I am satisfied you are likely to commit another qualifying sexual offence at this date.  The following factors are particularly influential:

(a)      There is a clear pattern of a similar type of sexual offending dating back to 1969 involving the exploitation of vulnerable young female girls. As in McInnes, though your pattern of offending has changed in terms of your most recent offending, it remains exploitative sexual predation of vulnerable members of society.16

(b)You have been assessed by two psychologists, or health assessors, as presenting a further risk of re-offending. In this regard, I accept one of the assessors assessed this at an average to below average risk and predicated that assessment on your health not deteriorating further. But there is nothing before me to suggest that your health will deteriorate to such an extent that the clear risk presented by you will materially diminish over the next five years. Your counsel mentioned existing health issues, including prostate removal, a knee problem and memory loss, but none of these conditions prevented the current offending.

(c)      You have undergone treatment programmes in prison and have been released in the past, only to confirm your propensity to re-offend, notwithstanding such programmes.

(d)Your offending has caused serious harm to the community; you have offended against multiple vulnerable victims, including in the present case against an impaired young person.

[28]     Overall, given the enduring nature of your offending over a long period and the clear risk presented by you, I am satisfied that a sentence of preventive detention

16     McInnes v R [2016] NZCA 216 at [21](a).

is necessary. As to minimum sentence, the Crown agrees this should be five years, given your age.

Sentence

[29]     Mr Cheesman, please stand. You are sentenced to preventive detention with a minimum sentence of five years. You may stand down.

Appendix A: Chronology of Prior Offending
Date	Offending
1969	Fondling and having oral sex with an eight year old female
1972	Fondling and having oral sex with the same female, then aged 11
Between 1985 and 1987	Indecently assaulting and raping a victim aged between 11 and 13 years old
Between 1987 and 1989	Touching a girl aged between 12 and 13 around the chest and vagina, and penetrating her vagina on one occasion
Between 1988 and 1990	Indecent assaults and sexual violation of a girl aged between 10 and 12, involving placing his finger in her vagina
Between 1988 and 1990	Coaxing a girl aged between eight and 10 into his workshop, fondling her breasts and genitalia, and inserting his finger into her vagina on at least four or five occasions. He also induced her to touch his penis and on one occasion attempted to sexually violate her by rape
1990	Touching nine and 12 year old victims on their breasts and vaginas
Between 1995 and 1998	Rubbing the vagina of a girl aged between eight and 10 six or seven times and inserting his finger into her vagina on two occasions
Between 1999 and 2000	Indecent assault of a girl aged between seven and eight by touching her genitalia over the top of her underwear
Between 1998 and 2001	Indecently touching a female aged between nine and 11 around the legs, breasts and stomach
Between 1999 and 2000	Indecently assaulting a girl aged 12 by putting his hand down her T-shirt and fondling her stomach and breast area