R v G
[2014] NZHC 2801
•11 November 2014
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF A VICTIM AND CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.
ORDER PROHIBITING PUBLICATION OF EVIDENCE AND SUBMISSIONS CONTAINED IN THIS JUDGMENT PURSUANT TO S 205
CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND [AUCKLAND] REGISTRY
CRI-2014-044-2100 [2014] NZHC 2801
THE QUEEN
v
G
Hearing: 11 November 2014 Counsel:
J Murdoch for the Crown
M Ryan for the OffenderSentence:
11 November 2014
SENTENCING NOTES OF BROWN J
Solicitors: Crown Solicitor, Auckland
Counsel: M Ryan, Auckland
R v G [2014] NZHC 2801 [11 November 2014]
First strike warning
[1] The offender received a first strike warning on 17 September 2014 when he entered guilty pleas before Lang J. It transpires that there is uncertainty as to precisely when the offences occurred and the possibility that they occurred before the commencement of the Parole Reform Act. In those circumstances the Crown accepts that the first strike warning ought not to have been given on 17 September
2014 and in those circumstances I direct that the first strike warning given at that time is cancelled.
Introduction
[2] You appear today for sentencing having pleaded guilty to eight counts of stupefying, five counts of indecent assault on a child, one count of indecent assault of a girl under 12, one count of indecent assault of a girl under 16, three counts of indecent assault of a boy under 16 and two counts of assault with intent to commit sexual violation. In respect of charges CRN14004503851 and 14004503852 the Crown offers no evidence and those charges are dismissed under s 147.
Factual background
[3] After moving to New Zealand in 1999 you worked as a night shift supervisor. As a result you had trouble sleeping and your doctor prescribed you Triazolam, a sleeping pill with hypnotic and sedative properties. You committed the following offending over a period of eight and a half years between March 2003 and September 2011.
Offending against A
[4] On 28 December 2005 you cared for your niece, A, while her parents went out for dinner. You made a milkshake for A and crushed a sleeping tablet into it. You did this with the intention of stupefying her and then looking at her genitalia. A began to hallucinate and you monitored her breathing. When her parents came home they took her to hospital. A urine test confirmed she had swallowed a sleeping pill and you told her parents that A had accidentally drunk a coke with a sleeping pill in it that you had made for yourself.
Offending against B
[5] The complainant B was seven when you befriended him. You would help him with his homework and if he answered a question incorrectly you would give him a “bare bottom smack”. This continued until B was ten years old and you admit this was your grooming of him. You would also take B on camping trips. When it was time to go to sleep you would make B sleep on top of you. On camping trips and when B stayed at your house you would give him bourbon or wine. You would tell B stories that had a sexual theme to them as part of your grooming.
[6] One day when B was 10 you took him on a camping trip to a rural area near Thames. You gave B a milkshake with half a sleeping tablet in it. Later that night you pulled down B’s underwear and looked at his penis. You then touched it for three to five minutes.
[7] Several months later you took B on another camping trip to the same location. You gave him another milkshake with half a tablet in it. When asleep you removed the complainant’s underwear and touched his penis. You masturbated while touching the complainant’s penis and rubbed your own penis on the complainant’s leg. On one of the camping trips you suggested the complainant give you oral sex and he refused. You were shocked when the next morning he could recall you asking him for oral sex. You told him not to tell anyone.
[8] When B was 10 you took him on a weekend to Hamilton to look at motorbikes. B began masturbating in the hotel room and you touched B’s penis.
[9] When B was 10 or 11 you again took him camping near Thames. The next morning you woke up with an erect penis and asked B to touch it to feel what it was like. B squeezed it for a few seconds.
[10] When B was 12 you took him camping at Muriwai Beach. You plied him with bourbon. Before going to sleep you rubbed your hands over B’s penis while B was wearing pants. Overcome with remorse you did not assault B further that night.
[11] When B was 14 you took him camping at a rural property on the Kaipara. You had a bonfire and drunk a bottle of whiskey. You told B every boy should experience oral sex. You told B to put a pillow over his head and relax. You went to pull B’s boxer shorts down but he prevented you from doing so. You then went to bed in a cabin. You slept in the same bed and you masturbated B until he ejaculated. Later after B went to sleep you removed his boxer shorts and applied lubricant to B’s anus. B woke up and realising what was about to happen jumped out of bed and put clothes on. You told B to get back into bed and he fell asleep.
[12] When B was 14 or 15 he went to your house to ride motorbikes and sleep over. You watched a movie. Your wife was in bed. You reached into B’s pants and touched his penis. Fearing you would commit further offences against B you went to bed.
Offending against C
[13] When C was 12 he visited you at your home address. You took him to a neighbouring property that you were looking after for the owners at the time. You gave C a milkshake with half a sleeping tablet in it. C went to bed wearing a pair of jeans. You placed your hand on C’s penis over the jeans. You wanted to take C’s penis out of his jeans but did not do so for fear of waking him.
Offending against D
[14] When D was between 10 and 12 you invited him to your home address to camp in the backyard and make a bonfire. You made a milkshake which you mixed with half a sleeping tablet and gave to him. D went to sleep wearing jeans. You placed your hand on D’s penis over his jeans. He rolled over and fearing he would wake, you took your hands off D’s penis and went to sleep.
Offending against E and F
[15] E and F were sisters aged 10 and 12. They were at your house for a sleep over. Your wife was present. You wanted to look at E and F’s genitals so you administered your wife a sleeping pill. She became sleepy and so you put your wife
to bed. You then made E and F milkshakes with sleeping tablets and gave them to them. You then went and watched a movie on the couch with E and F. They fell asleep. You lifted their night gowns and looked at their underwear. You did not look at their genitals as you were overcome by guilt.
[16] On 8 May 2014 you went to the North Shore Police Probation Centre and informed staff that you wished to disclose your offending against children. When spoken to by police you admitted the above summary of facts and said you wished to speak out about what you had done so you could progress with your rehabilitation.
Victim Impact Statements
[17] I have received a number of impact statements from your victims. Both the mother of victim D and your wife have read their victim statements to the Court this afternoon. I have also received a victim impact statement from victim D and his mother has read aloud views which he wished to have conveyed to the Court.
Personal circumstances
Prior Convictions
[18] You have previously appeared before the court on two charges of indecently assaulting a female, indecent assault on a boy under the age of 12 and breach of home detention conditions. You were subject to sentences of home detention and community work.
Pre-Sentence Report
[19] I have had the benefit of reading your Pre-Sentence Report. The report writer notes that you agree with the summary of facts and admit to grooming your victims. You were undertaking the SAFE programme which you say enabled you tremendously to acknowledge and accept responsibility for your current offending. However you were exited from the SAFE programme after you were charged with this new offending. You report as having no harmful pattern of using alcohol or drugs.
[20] Offending related sexual arousal is assessed as the contributing factor to your offending. You describe yourself as having a sexual addiction which you are learning to control to prevent further offending. The Te Piriti child sex offender treatment programme offered by the Special Treatment Unit at Auckland Prison is recommended for you.
[21] Taking into account the serious sexual offending involving sedation of victims that took place over a long period of time you are assessed at being at a high risk of reoffending with a high level of harm to others.
[22] Given the serious sexual nature of your offending imprisonment is recommended.
Purposes and Principles of Sentencing
[23] I approach the assessment of your sentence by a well recognised three stage process:
(a) Identifying a starting point which takes into account aggravating and mitigating factors of the offending but excludes aggravating and mitigating features which relate to you;
(b)I consider whether the starting point should be adjusted for factors personal to you, except for the factor of the consideration of the guilty plea; and
(c) I consider whether the provisional sentence should be adjusted to reflect the guilty plea.
[24] I am required to consider a number of sentencing purposes and principles as set out in the Sentencing Act 2002. The relevant purposes I have particularly taken into account in considering your sentence are:
(a) holding you accountable for the harm done to your victims and their families;
(b)promoting in you a sense of responsibility for and acknowledgment of that harm;
(c) denouncing your conduct; and
(d) deterring you and other persons from such offending.
[25] As far as is compatible I have also had regard to the purposes of assisting you in your rehabilitation and reintegration into society. I have also taken into account the principles of sentencing set out in s 8 of the Act, particularly s 8(a) relating to the gravity of the offending, your culpability, consistency with other sentencing levels and imposing a sentence on you which is not disproportionately severe.
Submissions
Crown Submissions
[26] The Crown submits the appropriate starting point for your offending is eight to ten years imprisonment. The Crown considers the aggravating features of your offending to be your premeditation and grooming, the age disparity and vulnerability of your victims, the abuse of trust, the scale of the offending, the intrusiveness and intensity of your acts and the extent of the harm caused. The Crown cites R v Thorpe where a starting point of seven years was applied for similar offending against four
victims.1
[27] In R v Taylor Woodhouse J imposed a starting point of seven years where there were five victims of similar offending.2 The Crown also cites R v Moloney which is less apposite due to its historical nature.3 In relation to the stupefaction of your victims the Crown relies on R v Smith where Mallon J uplifted two years on a three and a half year starting point for sexual offending to reflect the stupefaction as
a seriously aggravating factor.4
1 R v Thorpe [2012] NZHC 229.
2 R v Taylor [2013] NZHC 3017.
3 R v Moloney [2009] NZCA 9.
4 R v Smith HC Wellington CRI-2007-485-44, 22 June 2007.
[28] The Crown recommends that on the lead offence of assault with intent to commit sexual violation against victim B a five year starting point should be imposed, the Crown then recommends this is uplifted to a starting point of eight to ten years to take into account the rest of your offending. You have previous convictions for sexual offending which post date these charges. The Crown seeks no uplift for these but submits that nor are you therefore eligible for a good character discount. You pleaded guilty at the first call over in the matter in the High Court. The Crown now recognises that a discount of up to 25 per cent for a guilty plea is available to you.
[29] The Crown asks that a minimum term of imprisonment of at least 50 per cent of your sentence is imposed to deter and denounce your conduct and sufficiently protect the community from you.
Offender’s Submissions
[30] Mr Ryan submits this offending is similar to Walker v R where the Court of Appeal confirmed a five year starting point for 19 charges against five different girls.5 Your counsel submits a starting point of six years, being five years with an uplift for stupefaction of one year, should be imposed on the lead offending against B with an uplift of two years to take into account the totality of the offending. This results in a starting point of eight years.
[31] Your counsel submits you are entitled to a 25 per cent discount for your guilty pleas. At the time of this offending you had no previous convictions. Your counsel therefore submits you should receive a 15 per cent discount for good character. Mr Ryan submits you are very remorseful. You have apologised to the father of B and written letters to all the victims. Mr Ryan submits you should receive some discount for this genuine remorse also. Mr Ryan submits that an MPI is not necessary. Your release will be conditional on having completed a high intensity rehabilitation programme at Auckland prison and Mr Ryan submits your
release will be more effectively managed by the parole board.
5 Walker v R [2010] NZCA 288.
Sentencing
Setting a starting point
[32] There is no tariff case for doing an indecent act on a young person.6 I find the following assessment by Wylie J in R v Paki of the factors relevant to sentencing for indecent acts on children to be of assistance:7
The following factors can be relevant in assessing culpability: (a) the age of the victim;
(b) the vulnerability of the victim; (c) the degree of abuse of trust;
(d) the intrusiveness and intensity of the act; (e) the duration of the offending;
(f) repeated incidents of offending against the victim; (g) duration of offending against the victim;
(h) premeditation;
(i) the harm occasioned to the victim; and
(j) attempts at concealment.
[33] As has been noted in another case, care must be taken where some of these features overlap. Care is also needed where a large number of factors are present to assess not only their presence, but also the seriousness of each of them.
[34] In R v Thorpe a four year three month starting point was imposed for the offending against victim two.8 The victim stayed at the offender’s house on a number of different occasions as he was friends with the offender’s son. The offender would shower with the victim and wash and masturbate him. The offending occurred when the victim was 10, 11 and 12. On one other occasion when he was 13 he slept in the lounge and awoke to find the offender masturbating him. The
offender also offended against three other victims. He lay on top of victim one, a
6 Walker v R [2010] NZCA 288 at [23]; R v Johnson [2010] NZCA 168.
7 R v Paki [2012] NZHC 3494 at [30].
8 R v Thorpe [2012] NZHC 229.
seven year old female, and rubbed his genitals over her clothes when he asked her if she wanted to play mummies and daddies. On another occasion he touched her bottom through her clothes. Victim three woke up a number of times in the lounge when having a sleepover with the offender’s son to find himself undressed and the offender masturbating him. Victim four also woke up one night to find the offender touching his penis under his clothing. Woolford J imposed a four year three month starting point on the offending against victim two and then uplifted to a starting point of seven years to reflect the totality of the offending.
[35] In R v Linton the offender offended against five boys over an 11 year period.9
Over a two year period he engaged in indecent touching, mutual masturbation and oral sex with his first victim who was 14 and 15 years old at that time. Over a five year period he engaged in multiple acts of indecent assault, mutual masturbation and oral sex on his second victim who was aged 11 when the offending against him commenced. Thirteen of the charges related to the second victim. He repeatedly attempted to obtain sexual favours from a third victim. He offended against his fourth victim over a three year period. He performed oral sex on the boy and engaged in mutual masturbation. He offended against his fifth victim on two occasions by masturbating him. Collins J imposed a five and a half year starting point on the offending against the second victim and uplifted that by two and a half years to reach a starting point of eight years to reflect all the other offending.
[36] The Crown says I should take the assault with intent to commit sexual violation, when you attempted to have anal sex with B, as the lead offence and then uplift for the rest of your offending. In R v Hallmond the Court of Appeal upheld a starting point of four years where the offender attempted to penetrate the anus of one of the victims and was prevented by the victim.10
[37] In R v Taylor Woodhouse J took as the lead offence the attempt to have sexual connection with A.11 A woke early in the morning and found the offender simulating sex. After some time the offender rolled him on his stomach, pulled his shorts down,
removed his own pants, and then tried to insert his erect penis in A’s anus. In spite of
9 R v Linton [2014] NZHC 2111.
10 R v Hallmon CA42/01, 21 June 2001.
11 R v Taylor [2013] NZHC 3017.
his protests the offender pleaded with A three times to let him have anal sex with him. A refused and the offender stormed out of the room. The offender did tell A later that he would not do it again and there was no charge that he did.
[38] Woodhouse J imposed a starting point of five years for the lead offence of attempt to have sexual connection and uplifted by a further two years to take account of all other offending in its totality. In addressing totality Woodhouse J said:
[39] Having regard to the purposes and principles of sentencing set out in the Sentencing Act, and the matters I have discussed to this point, I consider that the starting point for the lead offence, which was count 4 in the final indictment, should be 4 to 5 years as submitted by the Crown. And as Mr Fairley also submitted, in essence, he really did not have any significant quarrel with that, although the specific submission by him on your behalf was a starting point of 4 years.
[40] The more difficult part of this assessment is the increase for all of the other offending. Looking at offences against individual victims could result in standalone sentences of several years' imprisonment for some of them. But Parliament, through the Sentencing Act, does not permit separate sentences to be calculated for each offence and for all of these simply to be added together to produce a total sentence. The Sentencing Act requires the Court to have regard to what is called the totality principle. And the Sentencing Act also requires me to take account of the fact that the particular offences by you, assessing them overall, are not the most serious of these types of offences.
[41] Ms Anderson acknowledged these points quite properly. And Ms Anderson, in the end, accepted that there could not be an increase of 4 to 5 years as she had originally submitted — that is to say, there could not be an increase of 4 to 5 years to the starting point of 4 to 5 years.
[42] Taking these principles of the Sentencing Act, and other principles and purposes of the Act, into account, I consider that the total sentence, before considering personal factors, should be imprisonment for 7 years.
[39] I consider that on the lead offence of assault with intent to commit sexual violation in respect of victim B a starting point of five years should be imposed. This offending was very similar to that in R v Taylor and although you were not as persistent as R v Taylor you assaulted B, intending to violate him while he was asleep and you had earlier in the night given him large amounts of whiskey to drink so he would be in a compliant state or asleep when you wished to violate him. I consider that to take account of the totality of the offending there should be an uplift of a further three years and six months to reach a starting point of eight years and six months imprisonment. This is consistent with the starting points for the totality of
the offending in R v Thorpe, R v Linton and R v Taylor. I consider your offending is comparable in culpability to R v Thorpe and R v Taylor where seven year starting points were imposed and slightly less serious than the eight year starting point R v Linton as that case involved oral sex with the victims. However I must also take into account the fact that you stupefied your victims.
[40] In R v Smith the offender gave the victim eight beers and two pills which he told the victim were anti-depressants.12 The victim became dizzy and had to sleep and while sleeping the offender masturbated him and performed oral sex on him. Mallon J characterised the stupefaction as an aggravating feature of the offending. Mallon J said at [31]:
Taking into account all these matters, but for the stupefying I consider that the indecent assault and sexual violation would be at the middle of the two to five year range — that is a three and a half year starting point would be appropriate. But, and having regard to the totality principle, I consider that this should be increased to five and a half years because of the stupefying, the earlier indecent assault and your subsequent actions of panic in attempting to pervert the course of justice.
[41] Were it not for the stupefaction this offending would be more comparable to R v Thorpe and R v Taylor where seven year starting points were imposed respectively but given the grooming of your victims and the intentional stupefaction of so many including your wife who would have tried to protect these children if she were awake, I consider a starting point of eight years and six months imprisonment is appropriate.
Adjusting the Starting Point
[42] I acknowledge that you have written letters to the victims and that you are indeed sorry for your actions. I also recognise that it was you who turned yourself into the Police and this is to be commended. However I am not prepared to allow a discount for remorse. Despite your feelings of guilt you continued to offend for
eight and a half years and while your letters were an important step in your
12 R v Smith HC Wellington CRI-2007-485-44, 22 June 2007.
rehabilitation I do not consider they constitute “exceptional remorse” in the context of R v Hessell.13
[43] I also consider you are ineligible for a good character discount. You were previously convicted of sexual offending for which you were sentenced to home detention. I do not consider it appropriate to give you a good character discount when you have committed sexual offences for almost the entire time that you have lived in New Zealand. The prolonged nature of offending can diminish the benefit of
an unblemished past so held in R v Hamilton.14 Consequently the provisional
sentence is eight years and six months imprisonment.
[44] Adjustment to that provisional sentence is required to reflect your guilty plea. I consider you are entitled to a 25 per cent discount for your guilty plea which was entered at the first call over in the High Court on 17 September 2014. This results in an end sentence of six years and four months imprisonment.
Minimum Period of Imprisonment: Sentencing Act 2002, s 86
[45] Notwithstanding Mr Ryan’s submission I do not consider that it would be appropriate for you to come up for parole after serving only one third of your sentence. I wish to denounce your conduct and the harm you have caused to many families. The Court of Appeal in R v Brown said an offence will be sufficiently
serious to impose a minimum term of imprisonment where there are:15
matters such as unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences.
[46] This is a case involving multiple vulnerable victims and serious actual consequences for those victims. It certainly justifies a minimum period of imprisonment. I impose a minimum period of imprisonment of three years and six
months.
13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63].
14 R v Hamilton [2014] NZHC 1579.
15 R v Brown [2002] 3 NZLR 670 (CA) at [27].
Suppression Orders
[47] Before formally passing sentence upon you I address the issue of suppression orders.
[48] Section 203 of the Criminal Procedure Act 2011 provides for automatic suppression of the identity of complainants in certain specified sexual cases. That section has application in the present case with the consequence that the identity of complainants A,B, C, D, E and F is suppressed.
[49] Under s 202 of the Act the Court may make an order forbidding the publication of the identity of a person who is the victim of an offence if the Court is satisfied that publication would be likely to cause undue hardship to the victim or connected persons. The Crown seeks an order for suppression of the identity of your wife, who is the victim of the charge of aggravated assault. I accept the Crown’s submission that it would cause undue hardship to your wife and her children were their names not to be suppressed. Accordingly I make an order for suppression of their names under s 202(1)(b).
[50] Plainly there is nothing in your personal circumstances which would warrant an order for suppression of your identity. However the Act recognises that there are circumstances in which it is necessary to make an order suppressing a defendant’s name if, to do otherwise, would have important implications for other persons. The circumstances in which an order may be made to suppress the identity of a defendant are circumscribed by s 200(2) which states that the Court may make an order only if the Court is satisfied that publication would be likely to among other things:
(c) cause undue hardship to any victim of the offence; or
(f) lead to the identification of another person whose name is suppressed by order or by law.
[51] On this aspect of the matter Ms Murdoch has revised the Crown’s position from one of neutrality to one whereby the Crown actively supports an order for suppression under s 200.
[52] I consider that in the present case the publication of your identity would be likely to lead to the identification of at least one of the six victims whose names are automatically suppressed under s 203. It would also be likely to lead to the identity of your wife whose name I have suppressed under s 202. I also consider that undue hardship would be likely to be cause to both of those persons in the event that your name was published. Consequently I make an order under s 200(1) forbidding the publication of your name, address and occupation.
[53] Finally, as requested by the Crown, pursuant to s 205(2)(d) I make an order for suppression of the name of the Jehovah Witness church with which you and a number of your victims were involved.
Result
[54] Mr G, would you please stand.
[55] On the two counts of assault with intent to commit sexual violation you are sentenced to six years and four months imprisonment.
[56] On the eight counts of stupefying you are sentenced to five years imprisonment.
[57] On the five counts of indecent assault on a child you are sentenced to four years imprisonment.
[58] On the three counts of indecent assault of a boy under 16 you are sentenced to three years imprisonment.
[59] On the one count of indecent assault of a girl under 12 you are sentenced to six months imprisonment.
[60] On the one count of indecent assault of a girl under 16 you are sentenced to six months imprisonment.
[61] These terms will be served concurrently; meaning the total sentence to be served is one of six years and four months imprisonment. You will not become eligible for parole until you have served three years and six months of your sentence.
[62] You may stand down.
Brown J
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