R v Ecclestone
[2015] NZHC 2054
•28 August 2015
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2013-006-1025 [2015] NZHC 2054
THE QUEEN
v
JASON BRENT ECCLESTONE
Charges:
Plea:
Sexual violation by rape;
Sexual violation by unlawful sexual connection (4); Abduction for sex; Threatening to kill
Not Guilty
Counsel:
J M Webber for Crown
R A Harrison for PrisonerSentenced:
28 August 2015
SENTENCING NOTES OF BREWER J
Solicitors/Counsel: O’Donoghue Webber (Nelson) for Crown
Rob Harrison (Blenheim) for Prisoner
R v ECCLESTONE [2015] NZHC 2054 [28 August 2015]
Introduction
[1] Mr Ecclestone, you were convicted by a jury of seven offences committed against the complainant. Five of the charges are sexual violation by rape and other means, each of which has a maximum penalty of 20 years’ imprisonment. The other two charges are abduction for sex (14 years’ imprisonment) and threatening to kill (seven years’ imprisonment). The reason you are for sentence in this Court is that the Crown seeks a sentence of preventive detention.
The facts
[2] Your victim was a sex worker who met you at a motel where you paid her for one hour of sex. Consensual sex took place within that period of time. However, you had not ejaculated and asked for more time, which your victim agreed to. After around 15 minutes of extra time your victim tried to end the session and have you leave. You refused.
[3] After that, on the evidence, you became increasingly brutal and degrading towards your victim. Over the next three hours or so you subjected her to a variety of sexual violations. There is one charge for each of the different types of sexual violation, but your victim’s evidence was that you repeatedly violated her in each of the different ways, moving between them over the lengthy period of offending.
[4] Your victim was so traumatised by what you were doing that she became nauseous and went to the toilet to vomit. While she was vomiting you attempted to continue to penetrate her from behind.
[5] I accept the Crown’s submission that features of your attack on the victim
included, in broad terms:
· You penetrated her with your penis, alternating between her anus and vagina.
· You did it “harder and harder and harder”.
·You penetrated her vagina with your fingers and attempted to penetrate her with your hand.
· You smothered her with a pillow to the point where she could not breathe.
· You threatened to kill her if she called the Police.
· You said you wanted to ejaculate on the victim’s face.
·You forced your victim to perform oral sex after you had penetrated her anally.
· You told your victim to keep her mouth shut when she complained.
·You were hurting your victim, she told you to stop because of this, but you did not.
Victim impact statement
[6] Your victim was a 52 year old sex worker. In her victim impact statement, she tells of how scared she was. She was so embarrassed and ashamed that she did not see a doctor, notwithstanding that she was in significant discomfort and took about a week to fully recover physically from what had happened. She remains fearful.
Sentencing methodology
[7] In sentencing you today, I am first going to consider what the law would require a finite sentence to be if I were to decide that a finite sentence is appropriate in your case. Once I have decided the applicable finite sentence, I will then consider whether preventive detention is necessary.
Finite sentence
[8] The leading guideline judgment in cases such as this is R v AM.1 In that case, the Court of Appeal set out sentencing bands for sexual violation where the lead offence includes rape or penile penetration of the mouth or anus. Band two of the offending as categorised by the Court of Appeal should attract sentences in the range of seven to 13 years. In my view, and I agree with Mr Harrison on this point, your offending falls at the upper range of that band in view of the culpability factors that are present.
[9] The first of these factors is violence and the associated detention. Your offending involved some degree of physical violence, including smothering her with a pillow, but also threats to your victim including threats to kill her. There was a significant period during which your victim was detained in her motel room and not permitted to leave.
[10] The second factor, and the most serious, is the scale and degree of your offending. You continually sexually abused your victim for a period of around three hours. You raped her repeatedly, forced her to perform oral sex on you even after you had been violating her anally, and even while she was vomiting you tried to rape her.
[11] The Crown submits that your victim was vulnerable because of her occupation and submits that I must also take into account the harm you have done to your victim. I accept that there was a degree of vulnerability, and that your offending has had a significant effect on your victim. However, in my view these factors are simply overwhelmed by the seriousness of what you actually did.
[12] Your lawyer has said to me this morning that the starting point for your offending would be in a range of 10 to 12 years’ imprisonment. Looking at the
gravity of your offending overall, I adopt a starting point of 12 years’ imprisonment.
1 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
[13] I now look at your personal circumstances to see whether the starting point should be increased or reduced. I have regard to the fact that you have a significant record of criminal offending. The most significant offending, for the purposes of this sentencing, are your 1998 convictions for rape and indecent assault. At that time, you were sentenced to 11 years’ imprisonment and served almost the entire term of that sentence. There are distinct similarities between that offending and the current offending to the extent that the Court of Appeal permitted evidence of the previous offending to be called at your trial on the current charges as propensity evidence.
[14] Mr Harrison, this morning, has submitted that I could uplift the starting point to one of 14 or 15 years, or even go beyond that if this was seen as an alternative to preventive detention. However, at this stage I am looking just at the appropriate finite sentence, so I would uplift the starting point by one year, to make a total of
13 years’ imprisonment.
[15] There is nothing in your personal circumstances which would justify a decrease in the starting point and so if I were to impose a finite sentence it would be one of 13 years’ imprisonment. I would be justified in imposing a minimum period of imprisonment of two-thirds of that sentence.
[16] Standing back and looking at your offending overall, and in the light of your previous offending, I am satisfied that that would be an appropriate finite sentence.
Preventive detention
[17] I now turn to the issue of preventive detention.
[18] I consider first the offending for which you were convicted in 1998. At that time, the trial Judge, Hammond J, considered you for preventive detention based on earlier convictions for unlawful sexual intercourse which, technically, counted as qualifying offences.
[19] The offending for which Hammond J had to sentence you involved you taking advantage of a young woman with muscular dystrophy who was confined to a wheelchair. Late at night, she voluntarily accompanied you to a flat to have drinks.
When you could not get into the flat you picked her up from her wheelchair and carried her down a steep bank to a secluded place where you sexually abused her over an extended period. You forcibly violated her by penetrating her anus and forced other sexual indignities upon her.
[20] Hammond J said this in his sentencing notes at the time:2
The psychiatrist thinks that you are not presently treatable. You do not consider your behaviour deviant. You have no apparent empathy for victims, or indeed women generally. These factors, in the psychiatrist’s view, put you in a “high risk category” to the public. The Doctor says, “the risk of him indulging in similar behaviour in the future appears to be significant at this point in time”. Nothing is said as to more distant points of time. The Doctor suggests that you would benefit from a programme for repetitive sexual offenders. But, entry to those programmes is restricted to those who exhibit some overt recognition of wrong-doing.
I have to say, that I am left with distinct unease from the point of view of public safety, because of your indifference to the nature and consequence of your actions, and your known proclivities.
[21] Nevertheless, Mr Ecclestone, Hammond J decided not to sentence you to preventive detention. You were a young man, your earlier offending was of a different kind and the Judge did not consider that your future likelihood of offending was of such foreseeability that he should adopt that course. Instead, his Honour dealt with you by imposing a lengthy finite sentence of 11 years’ imprisonment.
[22] With that background, I turn to my own analysis. Preventive detention is governed by s 87 of the Sentencing Act 2002 and the factors to be taken into account are set out there. I look, first, at whether you have a pattern of serious offending. I find that you have. The Court of Appeal, in its propensity evidence judgment, said this:3
… In particular, we are satisfied that there is a close similarity between Mr E’s offending in 1998 and the alleged circumstances which constitute his current offending. As Ms Mildenhall submits, in both cases the complainant was detained over a long period of up to three hours; there was repeated vaginal, anal and oral sex; and Mr E used force and threats which included smothering and choking. He attempted to use his fist to penetrate the complainant’s vagina. And he expressed a desire to ejaculate on the
2 R v Kelly HC Hamilton T.17/97, 31 March 1998, at 6.
3 Ecclestone v R [2014] NZCA 510, at [8].
complainant. In combination, this course of conduct reveals a highly unusual tendency.
[23] I do not consider that the distance in time between the 1998 offending and the
2013 offending is significant. For over a decade of that time you were in prison. You were released in 2008 and since then have been subject to three further periods of imprisonment totalling about one year.
[24] The seriousness of harm to the community is reflected in the fact that you have now subjected two women to brutal and prolonged sexual attacks.
[25] Of particular significance is the information I have which indicates that you have a tendency to commit serious sexual offences accompanied by violence in the future. I have been assisted by careful reports from two clinical psychologists. I will not go through them in detail because they are unambiguous and agree with each other.
[26] In broad summary, Mr Ecclestone, you pose a present and continuing danger to women. You have no insight into your offending, nor empathy for your victims. You have never engaged meaningfully with the programmes that might have helped you. You have had extensive contact with Department of Corrections psychologists. You were assessed in 2000, 2002 and on nine occasions in the period 2004 to 2008. Nine different psychologists carried out those assessments. I have no doubt from reading the two latest reports that your risk of sexual offending involving violence in the future is high. I have no doubt that nothing in your history of offending or your history of behaviour while incarcerated gives me any reason to suppose that a lengthy finite sentence would provide adequate protection for society. Nor would the availability of extended supervision at the end of such a sentence.
[27] A sentence of preventive detention must also carry with it a minimum period of imprisonment. The term must be at least five years and must be the longer of the minimum period required to reflect the gravity of the offences or the minimum period of imprisonment required for the purposes of the safety of the community in light of your age and the risks posed by you to that safety at the time of sentencing.
In your case, I will fix the same minimum period as I would if I had decided that the law required a finite sentence.
[28] I record that I considered imposing a longer minimum period of imprisonment because of the high risk you pose to the safety of the community at this time, and in light of the fact that you are only 40 years old. However, in line with decisions of the Court of Appeal on this topic,4 I have decided:
(a) Eight-and-a-half years is long enough for you to demonstrate whether you can change or whether you remain a risk. I do not need to go beyond that period to protect the community from risk, in the context of a sentence of preventive detention, and, in any event, I have no evidence as to how much longer would be necessary to remove any continuing risk.
(b)I can rely on the Parole Board not to release you if, at the end of eight- and-a-half years, you remain a risk. The Parole Board has the continuing responsibility to assess the risk offenders pose to the safety of the community, and it already knows you well.
[29] Mr Ecclestone, a sentence of preventive detention does not mean that the keys are thrown away. Through Mr Harrison, you have this morning told me that you are willing now to engage with all programmes that might help you. I hope you do that. If you can satisfy the Parole Board that you are safe to let out then the Parole Board will let you out. The Parole Board will look at you in detail once your minimum period of imprisonment expires. But to get out you will have to change. And be seen to have changed. From what I have read, change would be difficult for you given your deep-seated psychological problems. But, nevertheless, your future remains in your hands.
Sentence
[30] Please stand, Mr Ecclestone.
4 R v C [2003] 1 NZLR 30 (CA); R v Reekie CA339/03, 3 August 2004.
[31] On each of the five charges of sexual violation, you are sentenced to preventive detention with a minimum period of imprisonment of eight years six months. On the charges of abduction for sex and threatening to kill, you are sentenced to four years’ imprisonment. All sentences are to be served concurrently.
[32] You may stand down.
Brewer J
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