R v Hogben

[2018] NZHC 3220

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-009-007789

[2018] NZHC 3220

THE QUEEN

v

ADRIAN RAYMOND HOGBEN

Hearing:

7 December 2018

Appearances:

K South for the Crown

M Starling for the Defendant

Judgment:

7 December 2018

SENTENCING REMARKS OF NATION J

[1]    Mr Hogben, you appear today for sentence having been found guilty on a number of charges of sexual offending between 1 January 1998 and 31 December 1998. Your trial was before me, sitting without a jury, on 5 and 6 November 2018. You were convicted of:

(a)  Four charges of sexually violating the complainant by unlawful sexual connection, occasioned by penetration of her genitalia with your finger.

R v HOGBEN [2018] NZHC 3220 [7 December 2018]

One of those charges was for such an offence happening in the shower at the grandmother’s house and was laid on a representative basis. There was another similar charge on a representative basis as to such offending at your bedsit.

(b)  There were four charges of sexually violating the complainant by rape.

One of those charges was laid on a representative basis alleging rape at the grandmother’s home in Christchurch. Another charge laid on a representative basis related to such offending in your bedsit.

(c)  Another charge of unlawful sexual connection, said to have been occasioned by connection with your penis and her mouth or tongue.

This charge was laid on a representative basis.

(d)  A further charge that you sexually violated the complainant by unlawful sexual connection, occasioned by connection between your penis and her mouth.

[2]    The charges laid on a representative basis were laid on the basis that offending could have occurred at least once but could have occurred more often. I find that offending occurred more often.

[3]The offending is described in detail in my judgment of 9 November 2018.

[4]    Although there were a number of discrete charges, they were necessary because of the different forms of sexual violation and unlawful sexual connection you committed and because of the way your victim could recall the circumstances of particular incidents which then had to be the subject of a specific charge.

[5]    You were found guilty of serious sexual offending with your victim over a period of around three months towards the end of 1998. It was around the time your victim had turned 17. You were 42. Over that period, you used your victim for sexual gratification. The sexual acts you committed with her included all the different forms of sexual violation and unlawful sexual connection that you were found guilty of.

[6]    I consider it appropriate to sentence you for the totality of your offending without trying to pick a specific charge as the index or lead charge.

[7]    Some of the offending occurred when your victim was in the shower. There were other times when it happened in her bedroom, when her grandmother was either not nearby or was asleep. The victim recalled a particular incident when she was raped when in a car outside a shop not far from the home. You regularly took her to the bedsit where you were living at the time and offending occurred there.

[8]    There was one incident early on, and probably the first, when you arranged to take her on a trip outside Christchurch to Kaikoura, shared alcohol with her in Kaikoura and then, on the way back, stopped near a river where you raped and sexually violated her.

[9]    I found that, with all the offending, your victim did not consent and you could not reasonably have believed she was consenting. She submitted to what you were doing because of threats that you would kill or hurt her family. There were also times when you physically forced yourself upon her. There were times when you physically struck her. On at least one occasion, you held a knife to her to obtain her submission. There were times when she physically resisted what you were doing. She put a duchess against the door to her bedroom to try and stop you coming on. On one occasion, she bit your penis. As I said when I found you guilty, there was probably not physical resistance every time you were involved in this sort of activity with her but, throughout this period of intense and serious sexual abuse, you could not have reasonably believed she was consenting to what you were doing.

[10]   You have heard your victim talk of the way this offending affected her as a 17 year old. It is not hard to imagine how she had overwhelming feelings of, what she describes as, “toxic shame and dirty feelings inside” because of what had happened. Her life has been difficult since then. She has talked honestly of the way she used drugs and of the sort of life she has led. She acknowledges, fairly, that she alone made the choices which saw her get into a number of bad situations but it is easy to accept that her low self-esteem, as a result of what you did with her, has been a major factor in the poor decisions she has made. I am pleased to see the support she has from her

family and the way she has obviously rejoined that family and obviously is benefiting from their support. I trust that, with the work that she is doing, she will be able to move on from being a victim of what occurred and perhaps realise the potential that she had before she was 17 and before this happened.

[11]I refer to your offending involving this victim as the 1998 offending.

[12]   Sentencing you for this offending is more difficult than in other cases where someone has to be sentenced for offending that occurred a long time ago. That is because this offending occurred in 1998. On 9 December 1999, you were sentenced on charges of abduction, sexual violation by rape and sexual violation by unlawful sexual connection for offending that occurred on 28 February 1999. After pleading guilty on those charges, you received a sentence of seven years’ imprisonment.

[13]   When that sentence was about to come to an end, on 1 August 2006 a Judge in the High Court made an extended supervision order subjecting you to the further controls of the Department of Corrections for another eight years. An extended supervision order is made to protect both you and the community from the risk of your further offending but it nevertheless significantly restricted your freedom.

[14]   The 1998 offending for which I must sentence you occurred close in time to the offending for which you were sentenced in 1999. In these circumstances, it is appropriate to consider what would be an appropriate sentence for both this offending and the 1999 offending so that you do not end up with a significantly different sentence for all that offending just because you are being sentenced at two different times.

[15]   The Crown says the correct approach is to determine the appropriate sentencing for the offending I am dealing with, the 1998 offending, but then to consider your overall culpability and the effective sentence appropriate for the totality of the offending.1

[16]   The Crown submits that, having regard to the guideline judgment from the Court of Appeal in a decision R v AM, an appropriate starting point for the offending

1      Skipper v R [2011] NZCA 250 at [33]-[36].

for the 1998 offending would be 12 years’ imprisonment.2 It then says that I should consider the 1999 offending. The Crown says the 1999 offending would have attracted a starting point sentence in the vicinity of eight years so that the starting point for all the 1998 and 1999 offending would have been 20 years. It says that, allowing for totality, an appropriate sentence for all the offending would have been 16 years’ imprisonment. The Crown submits it would be appropriate to discount from that the one year credit you received when sentenced for the 1999 offending and the seven year sentence you served for that 1999 offending so that your end sentence should be eight years’ imprisonment. The Crown also submits that the circumstances of this offending were such that a minimum period of imprisonment before you are eligible for parole should be imposed.

[17]   An alternative but similar approach is to consider the related offending in its totality, and determine what sentence would have been imposed had you been sentenced for both sets of sexual offending at the same time. A reduction should then be allowed for the time you spent in prison on the earlier convictions in order to determine the end sentence for the present offending for which you are now being sentenced.3

[18]   Mr Starling, for you, submitted I should adopt this approach and it is going to be the approach which I do adopt.

[19]   Mr Starling submitted that a starting point for all the offending in 1998 and 1999 would have been 14 years but that you would have received a credit of two years for a guilty plea and remorse in respect of the 1999 offending, bringing the sentence back to 12 years. He submitted there would have then been a deduction of seven years for your earlier sentence, bringing the end sentence back to five years. He accepted a 50 per cent minimum term of imprisonment would have been appropriate so that the end sentence should be five years with a minimum term of two years and six months. Today he explained that he had accepted that because, in 1999, you would have been almost automatically entitled to parole after serving two-thirds of your sentence and

2      R v AM [2010] NZCA 114.

3      R v Townsend [2016] NZHC 505; R v Smith [2017] NZHC 3102 at [38]; R v W [2017] NZHC 1300

at [23].

would probably have had to serve two-thirds of your sentence before obtaining parole. It is on that basis that he was willing to accept that a 50 per cent minimum term of imprisonment for this offending would now be appropriate. That is something I have taken into account.

[20]   Had you been sentenced for the 1998 offending in 1999, in conjunction with the 1999 offending, I consider the Court would have taken the 1998 offending as being the lead offending, the more serious offending. Counsel for both the Crown and for you are in agreement with that.

[21]   The 1999 offending involved a single complainant, she was 15. You committed the offence of abduction by driving her away from Worcester Street and taking her to a secluded area behind the Christchurch airport. There, you raped her and committed sexual violation by unlawful sexual connection. The complainant there submitted after you became angry with her and she became scared. You physically forced yourself upon her. The way in which you offended was very similar to what happened on occasions with the victim of the 1998 offending.

[22]   You were spoken to by the Police about four months after offending with the 15 year old. You initially denied knowing that victim or ever having picked her up. Later, you admitted to picking her up on Worcester Street but then said you had taken her to nearby some shops and claimed that you had consensual sexual intercourse with her and paid her $400 for it. With your pleas of guilty to those charges, you accepted what you did was not consensual and the offence occurred in the manner described in the summary of facts, and which I just briefly summarised.

[23]   The 1998 offending was for incidents that occurred on a number of occasions, over an extended period of at least two months and probably three. There were specific acts of violence apart from the violence which is inherent with any sexual violation. The 1998 offending involved two different modes of sexual violation, and also instances of unlawful sexual connection.

[24]   There is no dispute as to the purposes and principles of sentencing which the Sentencing Act requires me to consider and which were set out by the Crown in its

submissions. The sentence must hold you accountable for the harm you have done to your victim, promote in you a sense of responsibility for and acknowledgement of that harm, provide for the interests of your victim, denounce the conduct which occurred and deter you and others from this sort of offending.

[25]   It is appropriate to consider the guideline judgment from the Court of Appeal in R v AM.4 Although that judgment was given after 1998, the maximum penalty for sexual violation by rape was 20 years, the same as it is currently.

[26]   In accordance with R v AM, I need to put this offending within an appropriate band. To do that, I consider the aggravating features which are relevant to that exercise and which are also referred to as aggravating features in s 9(1) of the Sentencing Act. This approach requires me to scale the seriousness of various factors in ways that might seem offensive to a victim because this sort of offending is always serious. That is reflected in the sentences that are imposed for this sort of offending. There is always harm from it. For sentencing purposes however, I have to scale the various factors.  In doing so, I am not in any way seeking to minimise the seriousness of the offending as far as your victim is concerned.

Planning and premeditation

[27]   The Crown submits this factor was present to a high degree through the way you created situations where you could be alone, particularly with the trip to Kaikoura which was set up under the guise of a fun trip but which you used as the opportunity to provide her with alcohol and then to use her as you did for sexual gratification when you stopped near the river.

[28]   I agree there was premeditation and cunning with the trip to Kaikoura. On all the other occasions, you took advantage of situations where you could be alone with your victim. On all occasions, you knew what you were doing and what was going to happen when you entered the bathroom, entered her bedroom or drove her to your bedsit or to the shops where an incident occurred. Generally, you took advantage of the fact this teenager was living [where] you could be alone with her.  With the

4      R v AM, above n 2, at [90].

offending occurring over a sustained period, obviously it cannot be described as impulsive.

[29]   However, it was not a situation where there was grooming over a sustained period or, apart from the Kaikoura trip, situations where you manufactured excuses or scenarios where you pretended to be with her for innocent purposes.

[30]I consider this factor was present to a moderate degree.

Violence, detention and home invasion

[31]   I have found that the victim did not freely consent to the sexual acts that occurred. There is always violence inherent with this sort of sexual offending. There was evidence of you, on occasions, striking her, the threat of using a knife and of force involved with the particular sexual activity you were engaged in. There were the threats that you would harm her family. There was no evidence that you physically forced her to get into a vehicle and go with you either to the bedsit or to Kaikoura.

[32]   Because of the difficulties that can arise with memory, I was not convinced that she was knocked unconscious on one of the occasions. I do accept that, on one occasion at least, you spoke to her in an abusive and demeaning way.

[33]I consider this factor was present to a moderate degree.

Vulnerability of victim

[34]   The Crown submits your victim was particularly vulnerable. It refers to the difference in your ages, the fact that she was isolated from her foster family and was reconnecting with her birth family. As a teenager she was vulnerable, but she was also bold enough to choose to leave that foster family’s home and to strike out on her own, as she did after leaving her grandmother’s home. She was no longer a child.

[35]I say this factor was present to a moderate degree.

Harm to the victim

[36]   There is harm inherent in the offending. You have heard of the particular damage that was done to your victim when she was just a teenager.

[37]This factor is present to a moderate degree.

Scale of offending

[38]   Offending is more serious when it occurs on more than one occasion. Here, there was offending over a sustained period of three months. There are a number of cases where offending such as this has occurred over much longer periods.

[39]   Because there is always harm with this sort of offending, for sentencing purposes, I assess this factor as present to a moderate degree.

Breach of trust

[40]   […]. She trusted you but you did not have responsibility for her. You were not caring for her. You simply took advantage of the fact that she was living in a home […] where you could easily have contact with her.

[41]As the Crown suggests, this factor is present to a minor degree.

[42]   The Crown suggests the offending would fall within the upper end of band 2 and the lower end of band 3. In R v AM, the Court of Appeal said the sentence for band 2 offending would be seven to 13 years, where two or three factors increasing culpability are present to a moderate degree. For band 3, 12 to 18 years would be appropriate. That is where there are two or more factors increasing culpability to a high degree or three of those factors present to a moderate degree.

[43]   I consider this offending would be at the upper end of band 2. On that basis, an appropriate starting point for the offending would have been 12 years’ imprisonment. I agree there are no mitigating factors as to the offending.

[44]   In 1996, you pleaded guilty to three charges of unlawful sexual connection with a girl aged 12 to 16. For that offending, you received a suspended sentence of imprisonment and non-residential periodic detention for eight months.

[45]   The Crown does not suggest this would have resulted in any uplift for the starting point for the 1998 offending if you had been sentenced for that offending in 1999.

[46]   With this earlier offending, you could not have been given credit in 1999 for previous good character.

[47]   You pleaded not guilty to all the charges arising out of the 1998 offending. I must proceed on the basis that you would have done the same if you had been charged with that offending in 1999. As you display no remorse now for what you have been convicted of, I must also proceed on the basis there would have been no remorse in 1999, so there would have been no mitigating factors relating to you personally.

[48]   So, the starting point sentence then for the 1998 offending, if you had been sentenced for it in 1999, would have been 12 years’ imprisonment.

[49]   In 1999, a Judge would also have sentenced you for the offending to which you pleaded guilty. Young J sentenced you to seven years’ imprisonment. However, if you had been sentenced for both the 1998 and 1999 offending at the same time, it would not have been appropriate to sentence you to two cumulative sentences without taking the totality of the offending into account.

[50]   The offending in 1999 involved just one incident. It was however with a 15 year old. You were not in a situation of trust with her. You effectively picked her up from where she had been on the street. The actual sexual offending which occurred with her was of a similar nature to the 1998 offending. It was really another instance of the same sort of offending but with a different young person on just one occasion.

[51]   Had you been sentenced for all the offending at the same time, I consider there would have been an uplift for that 1999 offending of two years so that the starting point for all offending would have been 14 years.

[52]   In 1999, the Judge said the starting point for the 1999 offending was eight years. He allowed you a credit of one year for your guilty pleas and also, but less significantly, because he accepted that, for you, serving a prison sentence would be very difficult. The reasons for that are referred to in the probation report for this sentencing.

[53]   If you had been sentenced in 1999 for all the 1998 and 1999 offending, the starting point of 14 years would still have been reduced by reason of those matters by one year, bringing a finite sentence back to 13 years’ imprisonment.

[54]   However, had you been sentenced in 1999 for all the offending, it is likely the Judge would have sentenced you to preventive detention. When you were sentenced for the 1999 offending, the Judge knew also of the 1996 offending. That offending involved your having unlawful sexual intercourse with two girls under the age of 16, in situations where you had enticed them to go away with you and paid them money in return for sexual intercourse. The Judge also referred to your convictions for indecent assault in 1980 and three for assault on females in 1984, 1988 and 1991. In 1999, the Judge warned you that, if there was any repetition of the offending, you would be very likely to receive a sentence of preventive detention. If the Judge had known of the prolonged 1998 offending and then had known that in early 1999 you had gone on to offend in a similar way with a 15 year old, you could well have been sentenced to preventive detention. The Judge did not know of your 1998 offending and so you received that finite term of imprisonment of seven years.

[55]   Allowing for that sentence having been served, an appropriate sentence for the 1998 offending now, taking into account the totality of your offending and the sentence already served, would be six years’ imprisonment.

[56]   I have considered whether there should be a further discount for the fact that, after completing your seven year sentence, you were subject to an extended

supervision order for eight years. Your freedom was restricted during that time. When Panckhurst J made the extended supervision order, he said the purpose of that extended supervision order was protective, protective not only of vulnerable members of the community but also of you. The Judge referred to evidence he had received as to your genuine desire or will not to reoffend, your compliance with obligations while on parole, your being in employment, and in a supportive relationship. He was nevertheless concerned that you had not received treatment for the factors that had led you to offend earlier. He expressed the hope that you would use the making of the extended supervision order as enabling you to make further progress in dealing with the problems that had caused your earlier offending.

[57]   After I delivered my decision and gave my verdict on the charges which you faced at trial, I told you of the way I anticipated the victim of your offending would benefit from your showing real remorse for what occurred with her, your taking responsibility for what happened and your demonstrating that you appreciated the effects your offending would have had on her.

[58]   You have not been able to do that. The probation officer advises me that you continue to deny any involvement in the offending and hold a high degree of hostility towards the victim. I thus cannot give you any further credit for remorse.

[59]   On the other hand, the fact you express yourself in this way does not necessarily mean that there is an increased risk of your offending in the future. It is apparent that you held attitudes similar to those that the probation officer reported at the time you were carefully assessed with regard to the extended supervision order. You have not been involved in similar offending since that extended supervision order was made in 2006. That order expired in 2014. Unfortunately, it seems you have never been amenable to rehabilitation treatment. Corrections however chose not to seek any extension of the extended supervision order in 2014. The Crown, rightly in my view, did not seek preventive detention when you were found guilty of the 1998 offending, recognising that you had not offended again after the Judge had warned you in 1999 that, if you did offend again, you would be very likely sentenced to preventive detention. The Crown also recognised that, through not offending again, you had

shown the risk now of reoffending is not so high as to require a sentence of preventive detention.

[60]   It seems likely that your inability to take responsibility for your offending and to demonstrate remorse is through the way you fear any admission of the offending could impact on the supportive relationship you have been in for a number of years. You also have an intense fear of being in prison as a result of a previous event that has left you suffering from post-traumatic stress disorder. You are hostile towards Corrections in a way which makes it difficult for you to benefit from treatment programmes that they might otherwise have made available to you.

[61]   Without your being able to show or demonstrate any remorse, the end result is that the appropriate sentence for the 1998 offending is six years’ imprisonment.

[62]   The Crown submits, referring to s 86 of the Sentencing Act, that a minimum term of imprisonment is appropriate. A minimum term of imprisonment may be imposed where the Court is satisfied that the otherwise applicable eligibility date for parole is insufficient for any or all of the following purposes:

(a)  holding you accountable for harm done to the victim and the community by the offending;

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

(c)  deterring you or other persons from committing the same or a similar offence; and

(d)  protecting the community from the offender.

[63]   The Court of Appeal has said that a 50 per cent minimum period of imprisonment was almost standard for serious sexual offending against a young child. A number of the cases which the Crown refers to as demonstrating the appropriateness of imposing such a minimum term involved offending with children, younger than your victim in this case. She was young but she was not a child.

[64]   The Crown submits that your lack of remorse and unwillingness to confront any related rehabilitative needs means that there is a risk of future offending which means that the purposes of deterrence and protection for the community are relevant in considering whether there should be a minimum term of imprisonment. However, Corrections did not consider it necessary to seek an extension of the earlier extended supervision order in 2014. You have not offended since your release from prison which must have been in about 2005. The Crown acknowledges it is not now appropriate to be seeking a sentence of preventive detention. You are now aged 62. It seems that you still have the benefit of a supportive relationship.

[65]   Your circumstances are different from many cases involving historic sexual offending. The 1998 offending occurred before you were sentenced to seven years’ imprisonment for the 1999 offences. The case is also unusual in that, after serving that sentence, you were the subject of an extended supervision order for eight years. In these particular circumstances, I am not imposing a minimum term of imprisonment. It will however be over to the Parole Board as to if and when you will be released before the end of your six year prison sentence.

[66]Mr Hogben, please stand.

[67]   On each of the charges on which you were convicted, you are sentenced to six years’ imprisonment. Those sentences are concurrent.

[68]You may stand down.

Solicitors:

Raymond Donnelly & Co., Christchurch Michael Starling, Barrister, Christchurch.