R v Milligan

[2013] NZHC 118

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-019-4910 [2013] NZHC 118

THE QUEEN

v

JAMES WILLIAM MILLIGAN

Hearing:         8 February 2013

Counsel:         R G Douch for Crown

K Clews for Prisoner

Judgment:      8 February 2013

SENTENCE OF KATZ J

Solicitors:           Crown Solicitor, Hamilton – [email protected]

Copy to:            K Clews, Hamilton –  [email protected]

R V MILLIGAN HC HAM CRI-2011-019-4910 [8 February 2013]

Introduction

[1]      James  Milligan,  you  appear  for  sentence  today  having  pleaded  guilty  to sexual offending charges against two complainants spanning the period between the

1960s and 2008.   On 8 November 2012, I gave you a sentencing indication in relation to those charges.  You accepted that indication.  Since then I have had the benefit of reading your pre-sentence report.  However, there is nothing in that report which would either increase or decrease the sentence I have previously indicated.

Facts

[2]      There are two sets of offending for which you are being sentenced for today. The first, against Complainant A, is historical in nature.   You were a friend of Complainant A’s father.  There are three representative counts of indecent assault on a boy under 16 years old stemming from your conduct with Complainant A, which relate to the period 1966-1971.  That provision has subsequently been repealed from the Crimes Act, but at the time of the offending it carried a maximum penalty of 10 years’ imprisonment.1

[3]      The conduct relating to those counts includes you forcing Complainant A to touch   your   penis,   performing   oral   sex   on   Complainant  A,   and   measuring Complainant A’s penis and pubic hair.  At the time of the offending, Complainant A was aged between 11 and 15, and you were aged between 29 and 32.  The offending took place on overnight boat trips with Complainant A.

[4]      The second set of offending, covering Counts 4 through 11 of the indictment, all involve Complainant B, spanning February 2004 to February 2008.  The charges include sexual violation by unlawful sexual connection (x2) and attempted unlawful sexual violation by unlawful sexual connection.  Those offences carry a maximum penalty of 20 years’ imprisonment.   In addition, there is one charge of indecent assault on a boy aged between 12 and 16, two charges of doing an indecent act on a young person and one charge of inducing a boy aged between 12 and 16 to do an

indecent act with you, carrying maximum penalties of 7 years’ imprisonment.  The final charge is one of doing an indecent act with the intention to offend or insult, with a maximum penalty of 2 years’ imprisonment.

[5]      Complainant B was aged between 9 and 14 during the period of offending against him.  The acts you committed against him included taking naked photos of him, touching his penis, masturbating him and having him masturbate you, performing oral sex on him, having him perform oral sex on you, and attempted anal intercourse.  You overcame Complainant B’s reluctance to participate in these acts by offering money in exchange for sexual activities, and also providing him with alcohol on occasions.

Purposes and principles of sentencing

[6]      In  sentencing  you  today  Mr  Milligan,  I  am  particularly  mindful  of  the purposes and principles of sentencing provided for under the Sentencing Act 2002.2

Some of the more relevant ones include the need to hold you accountable for the harm you have done to your victims and instil a sense of responsibility for that harm. I also need to provide for the interests of the victims, and to denounce and deter your conduct.  Further, I must take into account the gravity of your offending, bearing in mind the general need for consistency in sentencing levels for like cases.   Your offending was very serious and has caused lasting harm to your victims, both of whom were vulnerable children or young men who were preyed upon by you for your own sexual gratification.

[7]      It is also important in your case to consider whether your circumstances are such that would mean the sentence normally handed down to an offender who has committed these crimes would be disproportionately severe.

Personal circumstances

[8]      You are 75 years of age and clearly frail and of ill health.  Your probation officer noted your advanced age, ailing health and the fact that you need a walking

frame for mobility.  He also noted your poor hearing and memory loss.  You have a history of diabetes, chronic airways disease and hypertension for which you are on multiple medications.  According to your doctor, you also have early signs of dementia.

[9]      Your pre-sentence report notes that you claim to have no recollection of any of your offending, although you recall meeting your victims.  The report writer has doubts, however, about the loss of memory in relation to your offending, given you can recall other facts about your victims and your relationship with them from the relevant periods.  In short, your probation officer clearly is extremely sceptical about your claimed loss of memory of these incidents.

[10]     The report writer also notes that you seem to harbour a degree of resentment towards Complainant B.   Further, your inability to admit you have an interest in younger males is identified as a potential barrier to your rehabilitation.   On the other hand, your age and poor health are likely to be serious impediments to the prospect of any future offending.

Retrospectivity and the correct sentencing approach

[11]     Mr Milligan, you are being sentenced today for two very distinct periods of offending.  They are distinguishable both by the period of time when they occurred and by the fact that the victim was different for each set of offending.   Under ordinary circumstances I would be imposing a cumulative sentence in respect of each set of offending.

[12]     However, that would be difficult in this case.   Sentencing levels for sexual offending have changed  dramatically from the 1960s and 1970s, and accurately applying a Taueki-style sentencing methodology would be difficult.   The Court of Appeal identified the problem in R v R:3

Consideration of the 1970s decisions also involves the familiar problem of comparison, since the circumstances of individual cases invariably differ.  In addition, however, there is the complication that the sentencing method in

3      R v R CA244/04, 2 November 2004 at [19].

those days did not involve identification of a starting point, (usually by reference to a tariff judgment of this Court), an upward allowance for aggravating factors followed by a reduction for any mitigating factors. Moreover, there was not such attention given to spelling out a discernible discount for a guilty plea, as is current practice.

[13]     The Court then went on to discuss the proper approach to sentencing in cases of historical sexual abuse:4

We think that a sentencer confronted with a case of historical sexual abuse should fix a starting point based upon the sentencing levels of the relevant time and which recognises the aggravating features of the case.   Then if appropriate allowance is to be made for mitigating features including of course the plea of guilty if there has been one.  This, we consider, is a safer course since baseline tariff sentences (before aggravating features) did not exist until comparatively recently.

[14]     This of course only applies to your historic offending not your most recent offending.

[15]     When looked at holistically, it is clear your later offending is more serious, requiring greater denunciation.  Therefore, I will avoid the unnecessary difficulty of imposing a cumulative sentence for each set of offending, and instead impose concurrent sentences.   However, I will adjust the sentence upwards to reflect the totality of your offending.   In applying an uplift for the first set of offending, you will  of  course  be  given,  as  you  must  be,  the  benefit  of  the  more  benevolent sentencing levels for sexual offending that prevailed in the 1960s and 1970s.

Starting point

[16]     I  take  Count  10  as  your  lead  offence.    That  count  involved  coercing Complainant B to perform oral sex on you.  The Court of Appeal in R v AM5  set a series of bands, of varying degrees of culpability, which will help me set  your starting point.  Although this decision was released after your offending, the Courts have held that the retrospective application of guideline judgments does not offend

the principle against retrospectivity under s 25(g) of the Bill of Rights Act and s 6 of

4 At [22].

5      R v AM [2010] 2 NZLR 750.

the Sentencing Act where there has been no change in the maximum penalty for an offence.6

[17]     To determine what Band your offending falls under, the Court outlined a series of factors to consider.   Of those factors, the following are relevant to your case:

(a)      Planning and premeditation: It is clear that your offending involved premeditation.   You formed a relationship with Complainant B, groomed him, established a rapport with him, and used that to engage in sexual conduct for your own gratification.  On occasion you even gave him alcohol to facilitate your offending;

(b)      Vulnerability: It goes without saying that your victim was vulnerable.

At the time of your offending, Complainant B was aged between 9 and 14. You were aged between 67 and 71.

(c)      Harm to victim: Complainant B was clearly and understandably very traumatised by your offending.   We have heard from his mother in Court this morning.   She courageously read out his victim impact statement.   It made harrowing reading.   Your offending has clearly had a huge impact on his life from which he is still recovering.

(d)Scale of offending: The remaining counts you face in relation to this set of offending involving Complainant B indicate the wide scale of your offending.  This was not simply a one-off.  There were repeated incidents of sexual offending against Complainant B.   The worst of these include attempted anal intercourse and performing oral sex on him.

[18]     The Court in R v AM said that the presence of two or three aggravating factors  would  normally  fit  into  Band  two,  a  starting  point  of  7-13  years’

imprisonment.  I am satisfied that Band 2 is the appropriate band for your offending.

6      R v Wilson CA334/05, 31 July 2006.

In  pinpointing  your  starting  point,  I  find  the  decision  in  R  v  IJW7    broadly comparable.  I that case Heath J was sentencing an offender on three counts of sexual violation  by unlawful  sexual  connection.    He  took  a  starting  point  of  9  years’ imprisonment.

[19]     Your offending is not as extensive as in that case and so I adopt a starting point of 8 years’ imprisonment, which reflects your culpability for all the offending against Complainant B.

[20]     There is then the matter of an uplift to reflect your separate offending against Complainant A.   Although I am sentencing you concurrently on the offences in respect of Complainant A, it is still useful to assess what sort of starting point I would have imposed if that were standalone offending.  The victim impact statement from Complainant A makes sad reading.   Your offending has had a lifelong detrimental impact on him, including on his marriage.  Some relevant cases include R v L,8 R v Maloney9 and R v Matthews.10

[21]     When I consider your conduct against Complainant A, and compare it to these cases, a significant difference is that there was only one victim involved in relation to your offending during the 1960s and 1970s.   Although you never committed any acts of violence, the sexual conduct committed by you was just as serious  as  that  involved  in  any  of  these  cases.    A 3-year  starting  point  would appropriately reflect your offending against Complainant A on a standalone basis.

[22]     Returning to the issue of what uplift to apply, I believe a 1-year uplift which would take your global starting point to 9 years’ imprisonment, appropriately reflects

the totality of your offending against these two complainants.

7      R v IJW HC Gisborne CRI-2010-016-278, 27 August 2010. Per Heath J.  Upheld by Court of

Appeal in W v R [2011] NZCA 135.

8      R v L CA134/01, 26 February 2002.

9      R v Maloney [2009] NZCA 9.

10     R v Matthews HC Rotorua CRI-2010-019-2255, 19 November 2010 per Andrews J.

Adjusting the starting point

[23]     Turning to you personally, Mr Milligan.   I note that although you have no previous convictions, a good character discount would not be appropriate.  The Court of Appeal in R v Hearling11  was dealing with 19 counts of doing indecent acts on three boys under 16 between 1969 and 1978.  Despite being a first time offender, the Court declined give a good character discount given the extensive duration of the offending and the fact that it involved multiple victims.  The same factors are at play here and so I do not discount your sentence for your lack of previous convictions.

[24]     I also agree with Mr Douch’s submission that no discount should be afforded to you for remorse.  Your claimed inability to recollect the offending, which your probation officer was clearly sceptical about, and the resentment you see to harbour towards Complainant B weigh against giving any such a discount for remorse.  You have failed to recognise or acknowledge the very serious impact of your offending on your victims or express any regret, remorse or apology for that.

[25]     However, you are entitled to a discount for your personal circumstances and ill health.  In Hastie v R, the Court of Appeal said age and ill health may be taken into account on the issue of whether imprisonment will have a disproportionately severe effect on an individual.12     The Court identified that discounts for ill health range from approximately 14-33 per cent depending on the severity of the health conditions.  I have already referred to your personal circumstances.13    I am prepared to afford you a 20 per cent discount on account of your ill health.   No additional material has come to light which suggests that your condition is any worse than the information available to me at the time of my sentencing indication.

[26]     Finally, there is the issue of your guilty plea.   I will apply the 20 per cent guilty plea discount which I previously indicated given that you have saved the complainants from having to attend as witnesses at a trial.  This brings your effective

end sentence to 5 years and 9 months’ imprisonment.  As previously indicated, I do

11     R v Hearling [2009] NZCA 298 at [18].

12     Hastie v R [2011] NZCA 498 at [40].

13     Above at [10]-[13].

not intend to impose a minimum period of imprisonment given your age and poor health.  The timing of your release will ultimately be a matter for the Parole Board to consider, taking into account all the relevant information before them at that time

Sentence

[27]     Mr Milligan: I impose the following sentences on you:

(a)      On Counts 9 and 10, sexual violation by unlawful sexual connection, and Count 11, attempted sexual violation by unlawful sexual connection, 5 years and 9 months’ imprisonment in respect of each charge;

(b)      On Counts 1, 2, and 3, indecent assault on a boy under 16, 3 years’

imprisonment on each charge;

(c)       On Count 5, indecent assault on a boy aged between 12 and 16, 3

years’ imprisonment;

(d)      On Counts 6 and 8, doing an indecent act on a young person, 3 years’

imprisonment in respect of each charge;

(e)       On Count 7, inducing a boy aged between 12 and 16 to do an indecent

act, 3 years’ imprisonment; and

(f)      On Count 4, doing an indecent act with intention to offend, 1 year imprisonment.

These sentences are all to be served concurrently with one another.  That means your

effective term of imprisonment is 5 years and 9 months’.

[28]     Normally, a conviction for sexual violation would attract what is known as a three-strikes warning.  However, because your offending occurred prior to the three- strikes regime coming into force, I am not required to give you such a warning.14

Please stand down.

Katz J

14     Sentencing and Parole Reform Act 2010, s 12.