R v Harris
[2017] NZHC 1519
•30 June 2017
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2014-029-961 [2017] NZHC 1519
THE QUEEN
v
MICHAEL HARRIS
Hearing: 30 June 2017 Appearances:
B M OʼConnor for Crown
D J Blaikie for DefendantSentence:
30 June 2017
SENTENCING NOTES OF FOGARTY J
Solicitors:
Marsden Woods Inskip Smith, Crown Solicitors, Whangarei
Copy to:
D J Blaikie, Kaikohe
R v HARRIS [2017] NZHC 1519 [30 June 2017]
[1] Mr Harris is a middle-aged man who owns, and operated, a backpackers’ hotel. He has been discovered to have been drugging in the evening young trusting men, usually by inserting the drug into a glass of an orange drink. Then when asleep, he has been photographing these young men, keeping the photographs stored electronically on a USB or otherwise. In some instances he got into bed with the sleeping young man and spooned, as it were. There is no evidence that he actually touched any of the victims genitals or otherwise penetrated their bodies.
[2] He has pleaded guilty to the following charges:
(a) Fifteen charges of indecent assault under s 135 of the Crimes Act
1961 for which there is a maximum penalty on each charge of seven
years’ imprisonment;
(b)Twelve charges of stupefication, an offence under s 197 of the Crimes Act 1961 for which the maximum penalty is five years’ imprisonment on each charge;
(c) attempted stupefiction, an offence under ss 72, 197 and 311 of the Crimes Act 1961, for which the maximum penalty is two and a half years’ imprisonment;
(d)seven charges of making an intimate visual recording, an offence under s 216H of the Crimes Act 1961, the maximum penalty for each charge being three years’ imprisonment; and
(e) seven charges of possession of an intimate visual recoding, an offence under s 216I of the Crimes Act 1961, for which the maximum penalty is three years’ imprisonment on each charge.
[3] In all that amounts to 42 criminal offences involving 19 victims, all male. Eighteen of these victims were guests at Mr Harris’ backpackers’ hostel. One of the victims was the child of family friends of Mr Harris and he is referred to as the first victim.
[4] There was a pattern in the offending. The offending followed Mr Harris obtaining the confidence of a young man and in the case of the first victim, took advantage of the social relationship he had with the boy’s parents.
[5] Not all of the guests of the backpackers’ hostel slept in the hostel itself. Some of the victims were invited in to sleep in the house, a more privileged lifestyle and to some extent achieved some financial benefits.
[6] The defendant’s modus operandi was to stupefy the victims by giving them temazepam, a drug which the defendant had been previously prescribed. The drug was given to the victims without their knowledge, either in drinks of orange juice, alcohol or other beverages or in food. Once the victims were stupefied the defendant would photograph them, at times moving their clothing, bed covers or the position of their hands. Sometimes the defendant would get into the victim’s bed and couple from behind, spooning him.
[7] The defendant’s offending was discovered when the final victim, in a stupefied state, went into his friend’s bedroom and told his friend he was feeling unwell and the defendant was in his bed. His friend became suspicious and went and stayed in the same room. During the night the defendant, Mr Harris, came in and touched the victim on his face during which he woke the victim’s friend. The following day the victim had no recollection of this.
[8] His friend thought this was unusual and the two young men went to the Kaitaia Hospital on 7 September 2014, where a urine sample was taken from the victim. The urine sample was subsequently analysed by ESR and temazepam and oxazepam were found to be present.
[9] One of the exhibits in the event of trial was to be a volume of the photographs that were seized from the possession of the accused. There is a theme in the photographs. They are of young men. All of handsome young men, all asleep and often there are close-ups of their genital region. Many of them are where the young man is not wearing a singlet or jacket, just sleeping in boxer shorts. In such
cases the photographs seem to focus upon the man’s back, neck, arms and upper
torso, or bottom.
[10] It is common ground between counsel that there are no guideline authorities, let alone similar cases to this.
[11] Mr Blaikie submitted in this predicament that the Court was really faced with a unique set of circumstances which calls for a unique sentencing approach. He submitted that the sentence should adopt perhaps a different form of sentencing analysis. It should attempt to determine the culpability of a defendant and how he should be viewed by the Court. In doing this it should attempt to place his motivation for this offending in context and also place the effect on the victims of his offending in context.
[12] The Crown agreed that there was no tariff decision for any of the offences of stupefication, making and possessing intimate visual records or indecent assault. The Crown went on to cite various cases involving sentencing for the above charges in an attempt to demonstrate the range of sentences which have been imposed and which might be relevant here. But the Crown quite responsibly cautioned the Court:
The facts of each case differ and serve to reinforce that each offender must be sentenced on the culpability attaching to their particular offending.
[13] The Crown did rely on a Court of Appeal decision R v Clark1 where the defendant had pleaded guilty to one charge of indecent assault on a boy aged 16 years, and three charges on causing a poisoning or other noxious substance, namely isobutyl nitrate, to be taken by three young men including the victim of the indecent assault.
[14] The sentencing Judge found the aggravating factors to include the number of victims, the coercion of at least one of them, the vulnerability of the victims, the breach of trust, the defendant’s sexual motivation and the supply of copious
quantities of alcohol. The Court of Appeal in paragraph [13] discussed the case of R
1 R v Clark CA, CA144/03, 23 July 2003.
v Accused2 where the defendant had placed sleeping tablets in the coffee of his de facto wife and her daughter. The defendant sexually violated and indecently assaulted the daughter while she was stupefied. The Court in that case held that administering a drug to two complainants without their knowledge must be regarded seriously. Furthermore the Crown counsel cited a dictum from R v Clark where the Court had recorded that there were no suggested tariffs from cases under ss 197 or
202 of the Crimes Act 1961. The Court went on to say this:3
While a Sentencing Judge should, where appropriate, seek to ensure relative consistency with a line of similar sentences, it is ultimately necessary to determine the appropriate starting point by taking into account the various circumstances of each case and measuring these against the sentencing principles not codified in the Sentencing Act 2002. Often it will not be advisable to place too much emphasis on other sentences, particularly where there is only a limited number of them, and the maximum sentence is relatively low.
[15] Mr Blaikie submitted that in approaching this sentencing this Court has to look at all the offending in total. He submitted that no one seems to suggest that Mr Harris was, in any of the indecent assaults, motivated by sexual gratification. Nobody suggests that he was aroused through this offending and nobody suggests that he committed any indecencies on the victim. This places the offending, he submitted, in somewhat of a peculiar situation. If the motivation was not sexual gratification, then what was it? The photographs are not simply a record of guests. I find that they were taken for gratification.
[16] Mr Blaikie accepted, and he said Mr Harris now accepts, that the offending for which Mr Harris has pleaded guilty relating to indecent assault charges, fits within the definition of indecent assault in that ordinary persons would consider his actions indecent. He went on, as far as the indecent assaults go, however, they would have to be classified at the very bottom level of indecent assaults. They constituted among other things, removing bed clothing so that he could photograph young men dressed in their underwear and variously cuddling them, what has been described as spooning and making comments to them that he loved them and the like, but that he had not touched them or handled them in a way which could be said
to be sexual. He submitted he had difficulty understanding personally such kind of
2 R v Accused [1991] 1 NZLR 275 (CA).
3 R v Clark, above n 1, at [16].
behaviour, but many of Mr Harris’ friends have described Mr Harris as being non- sexual. That Mr Harris had instructed him, Mr Blaikie, that he has never had a sexual relationship with either a male or female in his life and is not sexually motivated to have one.
[17] Mr Harris has further advised Mr Blaikie that he is not sexually aroused by any situation. Mr Harris’ brother, who is briefly referred to in the pre-sentence report as having a strong relationship with Mr Harris, came to New Zealand after Mr Harris’ arrest. He is a retired police detective and it was obvious, said Mr Blaikie, when he met him he was more than capable in his job and had dealt with numerous sexual offenders. That his brother had looked dispassionately at the then available discovery material and came to the conclusion that this conduct was voyeurism; a specific offence in England. That that offence in England recognises offences which objectively have a sexual element, but where the subjective motivation does not involve sexual gratification. New Zealand does not have a similar type of offence.
[18] Mr Blaikie submitted, correctly, that there is no guideline case for sentences involving indecent assault. On their own none of these indecent assaults would perhaps attract a sentence of imprisonment, but collectively and considering the amount of difficulty that they have occasioned to some, but not all of the victims, a sentence of imprisonment may on a collective basis be unavoidable, but it should be set at a level which recognises that these indecent assaults were in fact low-level indecent assaults and did not involve indecencies committed on any person. They were in the nature of unwanted touching and invasion of privacy.
[19] I do not accept this characterisation of the case by Mr Blaikie, that it did not involve sexual gratification, although I recognise he was doing his job as counsel to put the best characterisation on the case as he possibly could to the benefit of his client. I do, however, seize upon the last sentence which I agree with: that they were in the nature of unwanted touching and an invasion of privacy.
[20] In the course of oral submissions, I discussed with Mr Blaikie the significance of privacy in relation to the common law. I referred to two matters.
Firstly, there is the whole common law of trespass, and particularly trespass to the person. That, at common law even, an unwanted touch on the shoulder of a person is trespass to the person. I expressed the view that the common law has always protected, as much as it can, the right of individuals not to be violated in any way, not to be even touched without their consent.
[21] To illustrate this last proposition I drew attention to the early decision of Entick v Carrington.4 That was a case in which two messengers of the Crown were despatched to break into the house of a journalist, who was annoying the government of the day, with his pamphlets which were circulating in London. The case is sometimes, I think, misunderstood as a case simply illustrating the proposition that the Englishman’s castle is his home. When, however, one reads the decision, one sees that what generated strong criticism of the officials’ conduct by the Bench of Judges, was not the trespass through the front door, going into someone’s private
property, but the seizing and examination of the owner of the property’s private correspondence, “for papers are often the dearest property a man can have”.5 That dictum in my view emphasises, that the tort of trespass and trespass to the person have together at their heart recognition that every individual is entitled to privacy and the law will not tolerate any unwanted violation of any person, his or her property especially in conditions where a person can reasonably expect privacy.6
The offences created by statute, to which Mr Harris has pleaded guilty (see [2] above), are all statutory provisions applying these common law values, which together protect privacy of persons, and their property.
[22] For these reasons the fact that these young men were not physically violated in the sense of being touched, does not mean that Mr Harris’ conduct was not serious culpable behaviour which needs to be recognised by a significant sentence. Mr Harris drugged them, entered their bedrooms, and took away photographs of them sleeping. And that is the basis on which I proceed.
[23] Both counsel sensibly recognised that it was simply impossible to realistically impose a sentence per charge – 42 sentences. That this conduct was
4 Entick v Carrington (1765) 19 How St Tri 1029, 95 ER 807 (KB).
5 At 817, 818.
6 See also C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672.
similar, in that sense one set of behaviour. In that context Crown counsel submitted that the starting point for sentencing in this case should be in the range of nine to 12 years and the only discounting factor they recognised was for an early plea, where they recognised a discount of ten per cent. I would add to that, a small discount for remorse. On the other hand, Mr Blaikie argued for a sentence around three years and six months relying on cases where there was usually only one or two very minor sexual molestations.
[24] For the reasons which I hope have come through, the sheer volume on this offending, 19 victims, 42 offences, conducted in secret, largely achieved by first stupefying the victims with a drug is altogether seriously culpable conduct and in terms of the general policy of the Sentencing Act 2002 such seriously culpable conduct that it requires a significant sentence.
[25] For these reasons I agree with the Crown’s assessment of nine to 12 years.
[26] I am, however, impressed by the fact that I think Mr Harris has genuine remorse for this. He has expressed it twice in my presence, firstly when I took the pleas, and again today. He may not simply be able to control himself in the situation he was in. In my judgment the appropriate sentence in this case is to take the lower end of the Crown range, and allow for the Crown proposed discount of 10 per cent for an early plea. I am satisfied the early plea was taken after an appropriate time and after preliminary matters were sorted out. I have allowed a discount of a further short period for remorse.
[27] Mr Harris would you stand up.
[28] Mr Harris on these 42 offences I am sentencing you to eight years’
imprisonment. You may sit down.
[29] I would also add, as has been discussed with counsel, that I reserve leave for Mr Harris to apply to the Court for a variation of sentence depending on the outcome of the forfeiture proceedings in respect of the backpackers’ hostel and the ability or not for there to be some reparation of the proceeds of the disposal of the hostel to the
victims. The Crown will be seeking reparation to be determined as part of the forfeiture procedure.
[30] Counsel have correctly drawn my attention that for a number of reasons, a sentence although reached in this way will need to be allocated across the charges. I will receive a memorandum from counsel with their suggestions in that regard. The total sentence will remain at eight years. I invite counsel to agree an allocation across the charges and failing that I will convene another sentencing hearing and hear counsel and that will be in the presence of Mr Harris.
[31] Counsel have since agreed an allocation, which I adopt. The aforesaid sentence of eight years is built up in this way:
(a) There is four years’ imprisonment on each of the disabling charges, to be served concurrently with one another.
(b)One year’s imprisonment on the attempted disabling charge, to be served concurrently with the disabling charges.
(c) Two and a half years’ imprisonment on the indecent assault charges to be served cumulatively on the sentences for the disabling, attempted disabling and making and possessing intimate visual recordings.
(d)One and a half years’ imprisonment on the charges of making and possessing intimate visual recordings to be served cumulatively on the charges of disabling, attempting disabling and indecent assault.
[32] Mr Harris, this is possibly one of the worst days of your life. I appreciate the stress you are under and the dignity with which you are carrying it, and I hope that when this is all over you will be able to get on with your life.
[33] I also want to thank counsel for the superb job you both did in tackling a case in which there is very little guidance.