R v Jeffries HC Wellington CRI 2009-063-732

[2010] NZHC 1901

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-063-732

THE QUEEN

v

ROBERT KEITH JEFFRIES

Charges:         1.      Sexual violation by unlawful sexual connection (7 counts)

2.     Indecency with a boy under 12 years (2 counts)

3.     Indecency with a girl under 12 years (2 counts) Plea:     Not guilty

Counsel:         I R Murray for Crown

J K W Blathwayt and J M Elliott for defendant

Sentence:       6 October 2010

Imprisonment

1.     Five years

2.     Two years

3.     Two years

(To be served concurrently)

SENTENCING NOTES OF MACKENZIE J

[1]      Robert  Keith  Jeffries  you  appear  to  sentence  on  seven  counts  of  sexual violation by unlawful sexual connection, five of those representative charges, two

counts of indecency with a girl under 12 and two counts of indecency with a boy

R V JEFFRIES HC WN CRI-2009-063-732  6 October 2010

under 12.  Three of those are representative charges.  You were convicted on those counts following your trial.   You were acquitted on one further count of sexual violation and the jury were unable to agree on two further counts of sexual violation and I have this morning dealt with those by granting leave for them to be removed from the indictment.  The verdicts were majority verdicts in all cases.

[2]      Your offending involved four victims.  All were aged between four and eight years at the time of the offending.   Each of the victims was a relative or family friend.  The offending against the first victim occurred between 1986 and 1988.  It involved a single incident when the victim and her parents had been visiting your parent’s home.  The victim wanted to go home.  It was arranged that you would take her home.  When you got to her house you sexually abused her by licking her vagina, making her lick your penis then making her masturbate you with her hand until you ejaculated.   The other three victims were all children you were supposed to look after, after school or kindergarten although the evidence as to care arrangements was not entirely clear.  There were two girls and one boy.  This offending occurred over a considerable period of time, between 1996 and 1998.  With the boy you would make the victim put his mouth on your penis then pull your penis out of his mouth before ejaculating.   You would also make him masturbate you with his hand.   You also performed oral sex on the victim and masturbated him with your hand.  With one of the girls you would touch her and put your finger into her vagina.  With the other girl you  would  also  touch  her  vagina  and  insert  your  fingers  into  her  vagina  also touching her vagina with your tongue.

[3]      You are 49 years of age.  You are not married.  You had a relationship with an  intellectually impaired  woman  which  ended  when  you  were  accused  of  this offending.  You have from that relationship an adult daughter from whom you are estranged.  You are also largely estranged from your wider family.  You lived with your father and subsequently with an uncle, and then with your aunt.   Your sole source of support latterly has been your aunt.   I have a number of psychiatric and psychological reports which were obtained in considering whether you were fit to stand trial.  Those reports indicate that you are of low intellectual functioning.  You fall within the range of 61 to 68, an IQ score which places you in the group of people who are considered to have mild mental retardation.  This limitation has affected you

throughout  your life.   Your childhood has been a sad and unhappy one.   Your intellectual disabilities have meant that you have had problems at school from a very early age which led you to being sent to a special school at age 12 because of behavioural problems.  Your problems have continued beyond childhood.  You have over the years been able to undertake only relatively limited work.  You have been a long-term invalid beneficiary.

[4]      You are said by the probation officer now to accept that you committed the offences, although you have continued to maintain that you have no recollection of the offending.  This, with your limited intellectual functioning means that you do not display a high level of insight into your offending though you have expressed some remorse.  Screening tests did not identify any alcohol, drug, or gambling issues of concern.  The probation officer notes that intervention would be appropriate for you through the Te Piriti Special Treatment Unit programme for child sex offenders at Auckland prison.   That includes an adapted element for offenders with limited cognitive functioning.  You had expressed an interest in undertaking that programme and I consider that it is appropriate that the authorities should consider your position and  your  appropriateness  for  that  or  some  other  treatment.    Because  of  your emotional  identification  with  young  children,  your  lack  of  appreciation  of  your actions through your limited intellectual ability and the number and characteristics of your victims you are considered by the probation officer to be at moderate risk of reoffending.  Your counsel submits that the offending might have as much to do with your mental age as with propensity.  I find much force in that submission.

[5]      The principal purposes of sentencing in your case must be to hold you accountable for the harm to your victims and to denounce your conduct.  Deterrence and protection of the community are also important purposes.  All of those purposes lead to an inevitable conclusion that the only possible sentence is one of imprisonment.

[6]      The first task is to set a starting point by reference to the circumstances of the offending, and without at this stage having regard to your personal circumstances. The Crown submits that the aggravating features relevant are a gross breach of trust, the vulnerability of the victims because of their age, the scale of your offending

involving four victims over a period of up to two years, and the extent of harm resulting from the offending.  As to the harm I have victim impact statements which, in a very measured way, the victims describe the impact of this offending on them. The consequences of offending of this type on young children is regrettably likely to be very long term and indeed potentially life long.  As to any breach of trust your counsel submits that the degree of trust imposed on you by the caregivers of the children was limited, and that the offending arose from proximity rather than from them  being placed in  your  care.    As  I have noted  the  evidence  as to  the  care arrangement was in some respects somewhat conflicting.   I consider that there is considerable force in counsel’s submission.   It is also the case, as your counsel submits, that your offending did potentially become known but was not addressed and a sad feature of this case is that had warning signs been more actively observed and acted upon some at least of this harm could potentially have been avoided.  .

[7]      Because your offending occurred between 1986 and 1998, I must have regard to sentencing levels appropriate for that period.  The approach to be adopted is that described by the Court of Appeal in R v T.[1]     Counsel for the Crown, and your counsel, have helpfully referred to a number of relevant decisions.   Those will be listed in the written record of these notes and I do not propose to go through them in detail.[2]    They suggest to me that for broadly similarly offending at about that time period, starting points of around seven to eight years were adopted.  If regard were had to current sentencing guidance, as provided in R v AM,[3] the Crown submits that your offending should be ranked in at least rape band 3, if not band 4.  Your counsel submits that your case should, in the light of your emotional identification with young children and your lack of appreciation of your actions through your limited intellectual ability, be ranked in unlawful sexual connection band 1 or at the bottom of band 2.  To adopt that approach would involve taking your personal circumstances into account in fixing the starting point.   I propose to fix a starting point without regard to those factors, and then to return to those when considering your personal circumstances.   I do not think that I should follow closely the guideline given in

R v AM.   As the Court of Appeal noted there, average sentences have increased considerably between 1996 and the present.  To apply present day sentencing levels would not, on my assessment, be appropriate.  I take a similar view in relation to the Crown’s submission that other forms of penetration are now seen to be equally serious as vaginal or anal rape.  I find the contemporary authorities to which I have been  referred  a  more  appropriate  guide  in  your  case.     Taking  into  account particularly the contemporary authorities relied on, I adopt a starting point of seven years.

[1] R v T [1988] 15 CRNZ 602.

[2] R v Craig HC Napier CRI-2006-041-2467, 21 June 2008;  R v M [2000] 2 NZLR 60 at [19]; R v B (an accused) [1986] 2 NZLR 751; Mahoney v R CA408/97, 17 February 1998;  M v R CA247/01, 1 October 2001

[3] R v AM [2010] 2 NZLR 750.

[8]      I must make an adjustment to that to reflect your personal circumstances.  I find no aggravating personal circumstances.   You have a reasonably extensive previous criminal history.   None of that is relevant to your present offending and much of it is as your counsel submits explained by your own limitations and your troubled childhood.  So I do not treat your previous history as an aggravating feature. Your limited intellectual functioning is a matter which I consider that I may properly take into account as a mitigating feature.  It is relevant broadly in two ways.  The first is that in my assessment your limited intellectual functioning does considerably reduce the culpability of your offending.  It does not of course reduce the impact of the offending for the victims, from the point of view of the victims.  But I have taken the effect on the victims into account in setting the starting point.  I consider that I may properly have regard to the reduction in culpability when considering your personal circumstances.

[9]      The  second  broad  way  in  which  your  limited  intellectual  functioning  is relevant is in relation to your ability to cope with a prison sentence.   You have indicated to your probation officer that you are likely to have difficulties and have said that you will not be able to handle a prison sentence.  Sadly, I consider that there is indeed a serious risk that prison will be very difficult for you.   That does not enable me to avoid that consequence.  Your offending is too serious for that but I can properly take it into account in assessing your personal circumstances.

[10]     For these reasons, I am of the view that this is a case where mercy can temper justice.   I am of the view that a substantial reduction from the starting point can

properly be made.  I would reduce the starting point by two years.  That leaves an end sentence of five years which is the sentence I intend to impose.

[11]     The Crown also seeks a minimum period of imprisonment.   That may be imposed  if  I am  satisfied  that  the  minimum  period  provided  by law  would  be insufficient for the purpose of holding your accountable for the harm done to the victims and the community, denouncing your conduct, deterring you or others, or protecting the community from you.  Having regard to your personal circumstances, the same factors which have led me to a substantial reduction from the starting point lead me to the view that holding you accountable for the harm, denouncing your conduct, and deterring you or others does not require the imposition of a minimum period.  As to the protection of the community from you, I consider that some degree of supervision following your release is likely to be required, depending upon your response to any treatment that you may receive while you are in prison.  However, I consider that that will be best met by means other than the imposition of a minimum period of imprisonment.  I do not impose a minimum period.

[12]     So the sentence is that:

a)        On  each  of  the  counts  of  sexual  violation  you  are  sentenced  to imprisonment for a term of five years.

b)On each of the other counts, you are sentenced to imprisonment for a term of two years.

c)        All of these terms are to be served concurrently.

“A D MacKenzie J”

Solicitors:         Crown Solicitors, Wellington for Crown

WCM Legal, Solicitors, Carterton for Prisoner