R v J.A.P. HC Auckland CRI-2007-083-000186

[2008] NZHC 2371

PERMANENT ORDER PROHIBITING PUBLICATION OF THE ACCUSED’S NAME OR ANY PARTICULARS LIKELY TO IDENTIFY HIM

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2007-083-000186

THE QUEEN

v

J.A.P.

Counsel:         A F D Cameron for Crown

L C Rowe for Accused

Judgment:      9 June 2008

SENTENCING NOTES OF GENDALL J

[1]      [Accused] you appear for sentence having pleaded guilty on arraignment to two sexual crimes, they being charges that on 3 April 2006:

a)       Firstly,  as  a  representative  charge,  you  had  exploitative  sexual connection   with   a   woman   being   a   person   with   a   significant impairment.  That is, there was more than one unlawful sexual event on that day;

b)Secondly, on the same date, and as also as a representative charge, you attempted to have exploitative sexual connection with the same woman,  she  being  a  person  with  a  significant  impairment,  by

attempting to put your penis into her genitalia.

R V J.A.P. HC WANG CRI-2007-083-000186  9 June 2008

[2]      The crimes are contained in s 138 of the Crimes Act 1961 which came into force in its present form in May 2005.  The seriousness of these crimes is reflected in the maximum penalty of 10 years’ imprisonment provided for exploitative sexual connection and attempted exploitative sexual connection.

[3]      I may take some time in this sentencing exercise (although Judges do not like to spend a lot of time in sentencing), but there are a number of matters that I believe I am required to deal with.

[4]      A significant impairment is described as an intellectual, mental or physical condition or impairment (or a combination of two or more intellectual, mental or physical conditions or impairments) that affects a person to such an extent that it significantly impairs the person’s capacity:

a)        to understand the nature of sexual conduct; or

b)        to understand the nature of decisions about sexual conduct; or

c)        to foresee the consequences of decisions about sexual conduct; or d) to communicate decisions about sexual conduct.

Your wife qualified as being impaired under all four headings.  She was unable to understand the nature of sexual conduct, make a decision about it, or to communicate any decisions.  She suffers from Alzheimer’s disease.

[5]      The facts upon which I sentence you are as follows.  I have discerned them from the reading the deposition evidence, all of which was given on oath and subject to cross-examination in the District Court.   It included some eyewitness evidence, expert  medical  evidence  and  a  police  officer’s  evidence  which  involved  the recitation of the statements that you made to that officer.  I have read the transcript of all that evidence, and in addition there has been submitted an agreed statement of facts by counsel.

Facts

[6]      The facts upon which you sentenced are you are now aged 60 years and were, and remain, married to your wife, or victim (although that is a pejorative word) for

40 years.  She is aged 61.  She cannot be described as a complainant because she is seriously incapacitated.  The medical evidence from the consultant psychiatrist was that when assessed shortly after your offending came to light, she was incoherent, disorganised in thought, did not recognise people or have social awareness or comprehension, was unable to attend to personal appearance or hygiene, had no memory for recent or past events, and no emotional response as to likes and dislikes. She demonstrated some symptoms of anxiety or fear when undressed.   She was suffering from severe dementia with early onset Alzheimer’s dementia or pre-senile dementia.  I quote from the psychiatric evidence:

She was:

Completely lost, she did not recognise people and had no social awareness

… no comprehension … no memory for reason of past events but demonstrated symptoms of anxiety or fear when she had to be undressed.

and further:

There was absolutely no possibility of [her] giving any consent to anything including sexual activity because she didn’t understand her circumstances, she had no understanding what her options were, she had no understanding of the consequences of those options.

[7]      The psychiatrist expressed the view that if someone had sex with her it would be akin to having that activity with someone in a vegetative state and unable to walk, or understand the events.

[8]      Your wife was living with you up until shortly after 3 April 2006.  You had been tending to her care.  She was in an advanced state of dementia and you knew it. You told the police officer that thousands of people have that problem because as you  said,  “in  the  Alzheimer’s’  literature  they  say  to  keep  it  going  as  long  as possible”.  You clearly had read up about the topic.  You read to the officer from a pamphlet  on  related  dementia  and  about  loss  of  inhibitions  as  a  symptom  of dementia.   You have claimed to a clinical psychologist – whose report has been

submitted on your behalf -   certain matters as to you and your wife’s previous history.  There is no evidence, other than your say so, to establish the truth of those claims.  I have reservations about a witness simply recounting what someone tells them which does not involve any expert opinion evidence, because that is generally inadmissible.   While I am sceptical about your claims, I do not regard them as aggravating or mitigating in the sentencing exercise given your pleas of guilty, and the accepted statement of facts.   What you said to the psychologist is simply an illustration of lack of insight, and apparent non-acceptance that what you did was wrong.

[9]      Outwardly viewed, the events of 3 April 2006 have a significant troubling aspect.  You were at home with your wife.  You had invited a male friend to join you.  You had obtained a pornographic video which suggests you had some sexual activity in mind.  You had met your friend in 2003 and he was bisexual.  You say that he had had sexual contact with your wife when you were present.  But your wife was suffering from dementia and her illness then, and at least by 2005 when assessed at Whanganui Elderly Assessment and Treatment Unit.

[10]     In April 2006 you friend was accompanied by another man.  All three of you watched the pornographic videotape, played by you for the excitement and gratification of yourself and the other two males.  It had nothing to do with mutual spousal behaviour.

[11]     Sexual conduct occurred between and amongst you and the two males.  Your wife was in the bedroom.  After all three of you had become sexually aroused, your wife was introduced to the activity.  You had sexual connection with your wife in the form of oral/genital contact and through digitally penetrating her vagina.  You then endeavoured on more than one occasion to have full sexual intercourse but were unable to complete the act.   The other two males were present and observed the activity.

[12]     You then asked your friend whether he wished to participate in having sexual connection with your wife.  I quote your statement:

I just said to [him] who has sex with [her] before, did you want a turn, but he said no.

[13]     There is a dispute as to whether the same offer was extended to the third man, and you deny that, so I put that to one side.   His evidence however was that he thought she was not happy about the digital penetration and he was sufficiently concerned to go to the police station to make a complaint about what he had seen, because it was obvious to him that your wife was severely handicapped.

[14]     His evidence given at the preliminary hearing was that she was:

… Skinny, she shaked like she had Parkinson’s Disease or something, her eyes were straightforward, it looked like she couldn’t even move her head and I don’t think she even knew we were in the room, she looked like she was really handicapped or something like that.   I hadn’t seen anything so bad.

I was looking at her, thinking to myself it’s terrible how some people can treat other people like.  She should be in a hospital or something like that.

[15]     You were interviewed by the police the next day.  You stated that what had happened was in the privacy of a home with sexual activity between partners and that your friend had in the past engaged in what you said to be “threesomes” as had you.  You said that you considered your wife liked your friend, there was no harm to her and that you and your wife always had extra partners.

[16]     You were asked and I quote from the interview:

Q A Q	Do you concede that your wife can’t give consent for every action? She can’t in words – no – usually by her demeanour. On   occasions   where   your   wife   doesn’t   consent   verbally   or
discernibly by demeanour – how do you know to go on with it or not – sexual actions?
A	Thousands and thousands have this problem.   In an Alzheimer’s literature they say to keep it going as long as possible.  They say if normal activity can continue it’s a good thing.
[17]	You	were  initially  charged  with  sexual  violation  by  unlawful  sexual

connection  and  attempted  rape,  but  the  indictment  was  amended  to  the  two representative counts of exploitative sexual connection.

Discussion

[18]     I  turn  to  discuss  the  sentencing  approach.    The  traditional  approach  in sentencing any offender is to determine an appropriate starting point for the crime. That  depends  upon  the  nature  and  seriousness,  the  criminality  involved,  the offender’s   culpability,   and   aggravating   factors   including   the   criminal   acts themselves.   Thereafter, the Judge will endeavour to identify aggravating and mitigating circumstances which are personal to the offender, rather than the offence itself.

[19]     Finally,  if  there  has  been  a  guilty  plea  entered,  the  Judge  will  give  an appropriate allowance or discount for that, depending on the stage that it is entered.

[20]     In your case, fixing a starting point is especially difficult and troublesome. So, too, is fixing an end sentence.

[21]     All decided cases under  s 138  of the  Crimes  Act  have  related  to  sexual offending against intellectually handicapped or disabled persons or women, either in residential care, or who are subject to adult or family supervision.  But there is no case that I have been able to find (nor has counsel been able to refer me to one), which has the features that existed in your case.  Namely, that the exploitative sexual acts have involved exploitation by a man of his wife, disabled through dementia and onset of Alzheimer’s disease, and where, as you have initially claimed, what you were doing was, to your mind, acceptable sexual behaviour between consenting adults, given a historical relationship.  But as I will later refer to, the key to the crime is the word “exploitation”.

[22]     There is a feature of your actions, but which I consider involves a sinister - or as I have said more gently, an aggravating exploitative area, and that is having a friend observe and participation offered, as well as the presence of a third man.

[23]     The issues which arise in your case are complex.   You claim the sort of activity was usual for you and your wife but I have no way of knowing the truth of that, and nothing has been advanced to corroborate what you now say.

[24]     I record some of the sentences imposed in cases under the former s 138 so that you can see the approach that Courts have taken to the crime.  It is a crime, not because  consent  is  given  (or  withheld)  by  a  victim,  but  because  the  victim  is incapable of giving true consent by reason of profound intellectual and other disability.  And the crime relates to the taking advantage of the impairment of the other person.

[25]     The cases include R v McNally (CA 441/92, 6 April 1993) where a sentence of three years’ imprisonment was imposed upon an adult male who offended in multiple ways against a 17 year old cerebral palsy victim, who had a mental age of about 7 to 9 years.  The Court emphasised that the section in the Crimes Act was designed to protect people who were not able to protect themselves.

[26]     In Police v Tavendale (High Court, Christchurch AP 281/94, 25 November

1994,  Tipping  J)  a  female  complainant  aged  25  with  an  intellectual  ability  of between 6 and 12 years, was the subject of sexual offending by a voluntary worker within an organisation for the intellectually disabled person.  There was one single event and the offender himself suffered from intellectual impairment so as not to be able to grasp the full impact of his behaviour.   A sentence of 12 months’ imprisonment suspended for two years, together with 12 months’ supervision was imposed.

[27]     In R v Whittaker (CA 23/97, 27 August 1997) a sentence of two  years’ imprisonment was upheld by the Court of Appeal for a man aged 65 who pleaded guilty of having sexual intercourse with a severely subnormal woman who was then in her mid-30s but seriously handicapped and no capacity to consent.  The offender has spent a great deal of time with the woman’s family, having a long-term relationship with her mother, and took the opportunity to exploit the vulnerable woman.

[28]     The Court observed in Whittaker that the section was aimed to protect the vulnerable persons and that:

A clear deterrent message must be given to those who might take advantage of severely subnormal women … [who] are quite clearly incapable of giving

consent to sexual intercourse, and a man guilty of this sort of offence knows or has good reason to believe that that is so.

[29]     There  are  cases  of  sentencing  for  sexual  offences  involving  mentally impaired complainants other than under s 138 where offenders have been found guilty of rape and sentences of seven years’ imprisonment (R v Sanday (CA 146/99,

22 July  1999)),   and   nine   years’   imprisonment   (R   v   Templer   (CA   281/99,

30 September 1999)) were imposed.  Of course those were cases involving crimes of rape, whereas your crime is that of sexual exploitation.

[30]     In determining the criminality and culpability of your conduct, the fact that the victim was, and is your wife, may be a relevant factor.  But whether it is seen as mitigating or aggravating insofar as the gravity of the offence is concerned is very much debatable.

[31]     On one view, the fact that your wife was under your care and protection entrusting you to keep her safe, not only from sexual acts about which she could not comprehend or consent, but against any exploitative sexual activity involving someone else, must be aggravating.

[32]     On another view, the fact that she was your wife with whom you had a sexual relationship for very many years, prior to her mental impairment through an aged related degenerative condition, might be said to lessen the seriousness of your offending, and your counsel submits that that should be the case.  That is because as you said to the police officer, you believe sexual activity with those suffering from dementia, if between longstanding partners, has a different culpability both morally and socially as to that between, for example, between strangers.

[33]     As I have said, the crucial element of this offending, as the section envisages, is that of exploitation.  That is, exploiting a situation in which an offender finds that he or she is able to achieve their sexual ends, for their own selfish purposes but in breach of trust reposed in them by the circumstances, and by the disability of the person.  It is well understood in sentencing cases, that offending which has occurred in a gross breach of trust is an aggravating feature.  And in a number of cases, it is

caregivers who have been employed as such, who committed the breach of trust upon the vulnerable.

[34]     The aggravating feature where an offender is an adult, but the victim a child under care, does not exist in your case.  But where a spouse has taken on the role of caregiver for a degeneratively mentally impaired spouse, a similar relationship of trust and care arises.  Any abuse of that is to be characterised as a serious breach.

[35]     The fact that there once existed a marital relationship, which still exists, but in  which  there  was  sexual  conduct,  and  there  was  a  relationship  of  trust  and affection, may as I have said, make the subsequent breach of that trust or exploitation abusive and more serious.   Although a marital relationship may be said to be a mitigating factor, it can only relate to a personal factor of the offender and not the offence itself.  Just as rape of a woman is rape whoever may be the victim, wife or otherwise, criminal exploitation is exploitation whoever may be the female victim. Whilst you claim that this was usual behaviour, if that was the case then it was not exploitative.  But as the facts here clearly establish, and your plea of guilty show you have admitted, exploitation.  Your case is very much different from other reported cases.

[36]     The Court is faced with the difficulty that where a victim suffers from an aged related mental impairment and the offender his or her spouse, the Court has to assume for the majority of a married life when full mental capacity existed, there was free consent to sexual intimacy.

[37]     I am grateful to counsel for the material that they have submitted, and I have myself tried to find some academic, or expert, publication on exploitative sex of the disabled.   And in the end I have considered the work of J H Lingler in an article which  is  entitled  “Ethical  Issues  in  Distinguishing Sexual  Activity from  Sexual Maltreatment Among Woman with Dementia” [2004] 15(2) Journal of Elder Abuse

85.  It looks at complex ethical issues involved in distinguishing sexual activity from sexual mistreatment.  I want to highlight now however that the Court is concerned with the law, and not with morals.

[38]     The article is focused on whether such activity is morally wrong as opposed to being legally reprehensible.   The author says that where a relationship exists, although some women with dementia are vulnerable to abuse, some sexual activity between loving spouses may be morally permissible, even when one partner has dementia and cannot consent.

[39]     The article talks about elderly people with age-related degenerative mental impairment, needing to be respected.  There is concern that care has to be taken to ensure that society does not arrive at a blanket rule that any sexual intercourse with a degenerative age-related impairment is criminalised.  That of course is not what the wording of s 138 says.  The crucial word is “exploitative”.

[40]     The Law and Order Select Committee when reporting back on the Bill in

2004, where they removed the words “obtained consent by exploiting the person’s impairment”, from the element of the offence said this:

We recommend amendments … to delete the consent requirements from the offence provisions.  Currently, the provisions include a requirement for the Crown to prove … that the complainant did not have the capacity to consent. Deleting the consent requirement means the Crown will only be required to prove that the accused had sexual connection with or did an indecent act with, a person with an impairment by taking advantage of their impairment. This will achieve the desired policy objective of protecting persons with significant impairments ….

[41]     That is why as I have said the word that is critical is “exploitative”.   The bottom line is that this was not “sexual activity” in the permitted sense, but sexual maltreatment, namely exploitative.

[42]     The commentary in Adams on Criminal Law which accompanies the new s 138 states:

The 2005 amendments not only extended the scope of the offence but also sought to ensure that the offence “does not catch situations where a person with a mental health condition or an intellectual impairment is able and wishes to have a genuinely consensual sexual relationship with another person.

[43]     That was not your case, and that feature is not relevant in your case because the evidence was quite clear that your wife was completely incapable of consenting,

or even knowing the nature and quality of what was happening to her.  And that was so from at least 2005 or earlier, when your bisexual friend came upon the scene.  It was not a mutual sexual act but acts that you were perpetrating upon her, aggravated by the presence of two men, one of whom, at least, was offered to your wife.  I do not see it as any excuse for it to be said, “well she would have consented if she could”.  No-one is ever going to know that, and who are you to say what she may have agreed to.

[44]     As recently as last Friday, 6 June 2008, the Court of Appeal delivered a judgment in R v Tapson [2008] NZCA 155 dealing with this crime of exploitative sexual connection with a person with a significant impairment.

[45]     It dealt with a legislative background of the section noting as I have said that originally an element of the offence was that an offender knew of the person’s impairment but obtained consent by exploiting that impairment.  But the Bill, as I have said, was amended to remove reference to consent and replacing it with the phrase that the offender obtained the impaired person’s acquiescence submission or participation in the undertaking of the connection.

[46]     The Court of Appeal made it clear in para [28]:

The purpose of the section, namely, to protect those vulnerable because of their impairment from predatory sexual activity is also plain from that language and the legislative history.   ….   it is inherent in the concept of “taking advantage” of another person that this was done knowingly.   An accused’s intention to take advantage will be a matter of inference largely turning on the accused’s conduct and words when considered in light of that knowledge.

[47]     Any belief on the part of an accused that a complainant was consenting, or there was a reasonable possibility of belief and consent, does not provide a defence. A Queensland case, R v Libke [2006] QCA 242 on equivalent provisions supports the view that this type of crime is a true alternative to the charge of sexual violation.

[48]     A belief that an impaired person consented may be relevant as to whether an accused took advantage of a complainant, but you have pleaded guilty to exploiting

her and there was no possible basis upon which you could believe consent was given.

[49]     As it has been said, your case is novel, there being no similar case that we have been able to find in New Zealand.   But there is a large amount of literature written on the subject of elder abuse.

[50]     What is required is for an offender to take advantage of the impairment by obtaining  the  impaired  person’s  acquiescence  or  submission  to  participation  in sexual activity and that falls squarely within what you did.  It is what makes your actions criminally reprehensible, and do not delude yourself otherwise.

[51]     The crucial point is the breach of trust and exploitation, and I quote the passage from the article of Lingler that I have referred to at page 98 (replacing the words “victim and offender” for the words “trusted and truster”):

… the rightness or wrongness of non-consensual (…) sex ought to be evaluated in light of whether or not the more powerful partner is relying on qualities of the person with dementia, such as decreased awareness, impaired decisional capacity, increased agreeability or increased passivity, to ensure engagement in the act. … a trust relationship is morally bad if it would be shattered in the event that the [victim] (in this case either the so-called pre- dementia “then-self” or the demented “now self”) became aware that the offender was taking advantage of qualities such as the aforementioned.  In the case of dissent to engagement in sexual activity, [the offender, as a trusted person] is morally obligated to respect the refusal, no matter what the prior arrangement and regardless of the individual’s cognitive capacity.  In other words, there ought not be any cognitive threshold for respecting another’s dissent to sexual activity, ignoring such dissent is a serious breach of trust.  Thus sexual activity is morally impermissible if either the [victim] dissent or the offender is only able to engage the victim in such activity as a result of the victim’s vulnerability.

[52]     As I have said courts of law are concerned with the law and not morality but the section dealing with exploitation reflects those sentiments.

[53]     You were only able to do what you did and tried to do by reason of your wife’s vulnerability.

[54]     Whilst complex legal and ethical issues arise, Parliament has criminalised the sexual activity in this context where there is exploitation of a vulnerable person who

is handicapped.  You pleaded guilty to exploitation which is an acceptance that you abused her trust, that is you used her for your own ends, that is what exploitation actually means.

So what is the sentence starting point?

[55]     It is the degree of culpability which determines the starting point.  I have tried to consider the complex issues discussed and concluded that your actions can be categorised as conduct which, putting aside any issue of morality, is legally reprehensible.  You took advantage of your wife’s impairment in order to obtain her submission  to  sexual  activity,  not  with  her  but  upon  her,  by  yourself  and  the presence of others.

[56]     You knew of her condition and your actions in inviting another man, at least, to partake, leaves me in no doubt as to this conclusion.  I do not accept the argument that your wife may have permitted that in the past and therefore it was permissible now.  She has been seriously impaired throughout the time you knew this friend, and your lack of insight over this is troubling.

[57]     This was not private, loving acts between a couple but exploitation by you, and it follows, the exploitation by you was for your own ends and gratification, perhaps as well to some extent for the gratification of others who were present.

[58]     Your  behaviour  requires  serious  admonition.    Whether  the  relationship between you and your wife is a mitigating feature of the offending itself so as to reduce the culpability or as a mitigating feature to you, is immaterial in the end.  As I have said just as a rape of a wife is not to be treated as different from rape of a woman who is not a partner, so too given the nature of this offending as it relates to exploitation, I doubt that the identity of the person is a mitigating feature in terms of assessing the overall culpability for the offending itself.

[59]     It may be different (as I have said and I will come to it) as to whether it is a mitigating feature in terms of personal circumstances.

[60]     I propose to fix a starting point of four years’ imprisonment.   That takes account of the aggravating features involving, or attempting to involve another man, their  being  present  two  other  men,  together  with  the  additional  circumstances relating to premeditation, self-arousal occurring long before your wife was involved.

[61]     Having fixed that starting point, I turn to consider aggravating and mitigating features that are personal to you.

[62]     In November 2007 you committed a traffic and resisting offences for which you were dealt with in the Wanganui District Court on 15 February 2008.  That was a time when you were on bail and had been committed for trial but the circumstances of those offences were minor, indicating perhaps a rather strange attitude towards persons in authority and not true criminal actions.  You have no previous convictions for over 60 years, and I put the November 2007 offence to one side.

[63]     But there is evidence that on 18 October 2007 whilst you were bail, you had sexual connection with the victim at a rest home/institution at which she had been moved to receive care.  Scientific analysis of an item found there revealed both you and her DNA profile, which showed that you had pursued sexual activity with her, maintaining your fixed views that despite her incapacity and profound impairment, you were entitled to do what you did.

[64]     You were on bail at that time for the present crimes.  Your beliefs are, and were, wrongheaded, yet you still continued to pursue them in that way.  Given your committal for trial, this has to be seen as a personal aggravating feature and a serious gross breach of trust, and illustrates a need for personal deterrence.

[65]     I have indicated I have been troubled in considering whether the fact that you were married to your victim was a mitigating or aggravating feature.  The views that you had about that which enabled you to do what you did were wrong, and the acts were unlawful.   Your views were mistaken and distorted, although I accept they were held by you as genuine but you failed to turn your mind to the seriousness of your  acts.    I  am  inclined  to  the  view  that  the  relationship  rather  than  being mitigating, was aggravating because of the particular vulnerability of your wife.

Mitigating features

[66]     Your guilty plea is a significant mitigating feature.  But, given the statements made to the police and the evidence given at the preliminary hearing, any defence would have been futile.  You were well advised to plead guilty to the charges in the indictment of exploitation for sexual means.  You are entitled to credit for the guilty pleas, which will be given to you.  I remain troubled by the fact that you show little insight or remorse, or understanding as to the criminal nature of your actions.

[67]     The report of the Probation Officer is favourable to you.  But it refers to you being “in denial of offending” which confirms my view that you lack insight, understanding or genuine remorse.   But you have led a blameless life and I have been provided with a large number of references and testimony to your otherwise good character.  Some of the character referees may not be aware of the true nature of the events in respect of which you have been convicted.   But clearly you have been a good character and you are entitled call that to your aid.  You clearly have served your wife admirably in caring for her since the onset of her dementia in 1996 and that stands to your credit.  It is a mitigating feature which I take into account, bearing in mind the other side of the coin, you were in a position of trust which you exploited.

[68]     I bear in mind reports submitted on your behalf, but you have no relevant psychological medical condition.  And the psychologist report as I have said simply states what you claim to him to be your motivation beliefs, and justification for your actions.

[69]     I will factor into the sentencing exercise as a mitigating personal aspect that you have been married to the victim for many years, that you cared for her, and you believed wrongly that because she was your wife the actions were permissible.

[70]     You wrongly believed that you could do to your wife what you did (that is doing it to her and not with her), and that it was quite alright for others to be present and offered your wife’s body.  Your beliefs were wrong and your acts were unlawful and a serious exploitation of her.

[71]     Ignorance of the law is no excuse but I am prepared in your case to make some allowance for your belief, wrong as it was, and treat it as a slight mitigating factor.   That is because there has been no previous cases or public discussion or pronouncement about this type of offence, in your type of situation.  But from now on the public, and men, will know what the law is.

[72]     I am grateful to the wealth of material that both counsel have made available on what is, at one level, complex and sensitive.  But as the crime is described the criminality arises through “exploitation”.  If the sexual acts are not exploitative there is no crime.   But they were in this case, and despite the endeavours of defence counsel, I am not persuaded the degree of exploitation was minor or insignificant, or in fell into justifiable and mistaken behaviour.

[73]     I have considered the reports described as Victim Impact reports but rather submissions or statements made by family members.   They include children expressing great support to you.   But on the other hand, the victim’s sister has submitted a report tending to paint a somewhat different view.  All that I need to say about that is the family has suffered through what has occurred, and rifts, tensions and divisions sadly may continue.  The rehabilitative process, which must involve you, I hope will provide some healing.

[74]     Defence  counsel  submitted  that  an  appropriate  outcome  is  a  discharge without conviction under s 106 of the Sentencing Act 2002.  That would be totally inappropriate.  Consequences of a conviction would not be out of all proportion to the gravity of the representative charges to which you have pleaded.   The only consequences are that you and members of your family know that you have committed a crime which involved exploitation of a loved one.  As I have said, the key is exploitation of the helpless, which is the antithesis of love and typifies what occurred on this occasion.

What then is the appropriate sentence?

[75]     The Probation Officer makes the obvious point that the tariff, that is the going rate, for such offences is not clear, they being rare.  Mr Cameron submits the

Court has to approach it from the point of view of consistency.  But that begs the question  -  consistent  with  what,  given  that  this  is  the  first  time  this,  to  my knowledge, has to come before the Court.   The Probation Officer says that if the Court wish to impose a penalty short of imprisonment, then home detention was available.

[76]     Deterrence is an important part of sentencing, not only personal deterrence that is as it relates to you, but general deterrence, that is as it relates to others.  From now on those who may be inclined to exploit in a sexual way seriously handicapped persons should know that imprisonment is the probable, and indeed the inevitable, outcome.  They cannot be able to called upon claimed beliefs that such exploitation of a woman is justified.  Legally it is not.  I would think that morality might follow the law in that regard.  Stern penalties must follow.

[77]     I take a starting point of four years’ imprisonment for offending such as yours.  But for your good record and the other personal circumstances and in matters contained in all the references and Probation Officers’ report, I allow a discount of one-third.  You are given a further discount in respect of your guilty pleas.   They came late, about two years after you were charged although not until the s 138 charges were laid.  But in the meantime, in October 2007, you had the further sexual connection with the incapacitated victim at the rest home which tends to signify an absence of true remorse or contrition.  Nevertheless, I allow a further 25% discount for your pleas.   You are somewhat fortunate with that because you continue to maintain the appropriateness of your actions.   In normal circumstances, the end result would be a term of imprisonment of at least 2 years, which I would think is fully justified.

[78] Given the Probation Officer’s recommendation and the provisions of the Sentencing Amendment Act 2007, I propose extend further a merciful approach and impose a merciful sentence being one that the Court regards as the least restrictive outcome with reference to the hierarchy of sentences contained in the Act.

[79]    The Probation Officer has recommended community detention.   But the hierarchy of sentences that is below home detention, and in my view not appropriate

for offending such as this.  Home detention is one step short of imprisonment, and in my view it is proper given the matters that I have outlined.  Otherwise, you would have  been  sentenced  to  a  short  term  of  imprisonment,  but  I  am  satisfied  that imposing a less restrictive term or sentence, the Court can do no more than impose a significant term of home detention.

[80] The offences you committed occurred before the home detention provisions in the Sentencing Amendment Act. But nevertheless, pursuant to s 57, the Court may sentence you to home detention if it had power to do so, in dealing with the offending immediately before the day of the offence (which it does), and the requirements of s 80A of the Sentencing Act are satisfied – as they are.

[81]     You consent to the imposition of a term of home detention according to the Probation Officer.  Such would enable you to continue working, and the Probation Officer has submitted an appropriate report as to the suitability of the premises in terms of home detention and the like.

[82]   You have escaped imprisonment by a narrow margin but I consider it appropriate you be sentenced to home detention for the maximum term provided, namely 12 months.  You are therefore sentenced to home detention for 12 months on the following special conditions:

a)        First, you are travel directly from this High Court to your home at

121 Springvale Road, Wanganui and await the arrival of the Probation

Officer and a representative from the monitoring company;

b)Secondly, you are reside at 121 Springvale Road, Wanganui for the duration of home detention;

c)       Thirdly,   you   are   to   attend   and   complete   an   assessment   for psychological counselling and complete such counselling as directed by a Probation Officer;

d)Fourthly, you are to attend and complete any other counselling so as to reduce the likelihood of reoffending as may be directed by the Probation Officer;

e)       Fifthly,  you  are  not  to  associate  with  any  person  or  persons  as specified in writing by the Probation Officer and as directed by the Probation Officer;

f)        Lastly, you are not to have in your possession or consume alcohol or non-prescription drugs for the duration of the home detention.

[83]     Post detention conditions under s 80N(2) will apply.

[84]     An order to protect the identity of your wife and family.   There will be a permanent order suppressing publication of your name or any particulars likely to identify you or her.

“J W Gendall J”

Solicitors:

Armstrong Barton, Wanganui

Crown Solicitor, Wanganui