R v Nielson
[2019] NZHC 685
•2 April 2019
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 AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2018-092-004250
CRI 2017-092-005984
[2019] NZHC 685
THE QUEEN v
JAMES ANTHONY NIELSON
Hearing: 2 April 2019 Appearances:
C Robertson for Crown G H Vear for Defendant
Judgment:
2 April 2019
Reissued:
6 June 2019
SENTENCING NOTES OF VAN BOHEMEN J
Solicitors:
Kayes Fletcher Walker, Manukau Public Defender Service, Auckland
R v NIELSON [2019] NZHC 685 [2 April 2019]
[1]Mr James Nielsen, you appear for sentence after pleading guilty to:
(a)Three charges, one being a representative charge, of sexual violation by unlawful sexual connection;1
(b)One representative charge of attempted rape;2
(c)Two representative charges of indecent assault on a child under 12 years of age;3
(d)One charge of knowingly making an objectionable publication;4
(e)One charge of knowingly distributing an objectionable publication;5 and
(f)One charge of knowingly possessing an objectionable publication.6
[2] I shall refer to the sexual violation, rape and indecent assault charges as the Crimes Act Charges. I shall call the other charges the publication charges in my sentencing notes.
[3] Each of the charges carries its own penalty, ranging from a maximum penalty of 10 years’ imprisonment for the rape and indecent assault charges and one of the publication charges, a maximum penalty of 14 years’ imprisonment for the other two publication charges, and a maximum penalty of 20 years’ imprisonment for the sexual violation charges. However, the Crown has asked me to consider imposing an indeterminate sentence of preventative detention because of the risk of sexual reoffending following your release from a finite sentence.
1 Crimes Act 1961, ss 128(1)(b) and 128B, maximum penalty 20 years’ imprisonment.
2 Crimes Act 1961, s 129(1), maximum penalty 10 years’ imprisonment.
3 Crimes Act 1961, s 132(3), maximum penalty 10 years’ imprisonment.
4 Films, Videos and Publications Classification Act 1993 (FVPCA), s 124(1), maximum penalty 14 years’ imprisonment.
5 Films, Videos and Publications Classification Act 1993, s 124(1), maximum penalty 14 years’ imprisonment.
6 Films, Videos and Publications Classification Act 1993, s 131A, maximum penalty 10 years’ imprisonment or $50,000 fine.
Facts
[4] Mr Nielson, you appear before the Court today for convictions arising out of the following circumstances. In 2014, you commenced a relationship with a woman I shall refer to as R. In May 2015, you began residing with R and her four children - two girls and two boys. You resided with R and her children until July 2016. During this period, you were often the only adult home alone with the children, while R was at work. During this period, you sexually abused C and K, the two girls, and accessed and shared objectionable material on line.
[5] The charges to which you have pleaded guilty occurred between 1 May 2015 and 7 July 2016. K was 7 or 8 years old at the time of the offending, and C who was 13 years old.
[6] Your counsel accepts the summary of facts annexed to the Crown’s submissions.
Crimes Act Charges
[7] I shall not go into all of the details of your offending as set out in the summary of facts. However, I need to describe the nature of your offending to put your sentence into context.
Charges relating to C
[8]I deal first with the offending in relation to C, the then 13-year old.
[9] In or around August 2015, C stayed home from school because she had sore hips. After you had brought her home from her appointment at the hospital, she went to sleep in the room you shared with R. C woke to find you penetrating her genitalia with your fingers and then your tongue.
[10] In May 2016, K and C stayed with you at the family bach. C went to sleep in one of the rooms and awoke to you penetrating her with your fingers. You told her not to tell anybody about this or you would both go to jail.
Charges relating to K
[11] The offending against K, who was 7 or 8 years old at the time, was more serious. On one occasion you put a set of drawers across the door of the bedroom in which you and she were present. Your purpose must have been to prevent anyone else coming in and to prevent K from leaving. You then attempted to penetrate her genitalia with your penis. You told K that what you were doing was normal and that she had to keep the incident a secret “or else”.
[12] On a second occasion, when K had fallen asleep after taking a shower, she awoke to find you attempting to put your penis into her vagina.
[13] On three or four other occasions during this time you indecently assaulted K. On each of these occasions you put your hands under her clothing and stroked the outside of her vagina for several minutes with your fingers. On another two occasions you masturbated in front of K to the point of ejaculation.
Charges relating to objectionable publication
[14] During this period, you also took 7 digital photographs of K using your smart phone. These photographs included:
(a)two images taken down K’s top;
(b)two images taken up K’s skirt which showed her underwear;
(c)two images of K lying on her back on a bed with her legs spread and raised in the air showing her underwear; and
(d)one image of K lying on her back on a bed with her legs spread and her underwear pulled to the side, showing her vagina.
[15] Each of these images is objectionable under s 2 of the Films, Videos and Publications Classification Act.
[16] Between 15 and 26 May 2017, you accessed a website that is known to international law enforcement agencies to be a site used by paedophiles to join private chat rooms or to communicate privately and share material bearing on child exploitation. The site was monitored by a senior investigator from the Censorship Compliance Unit of the Department of Internal Affairs. During this time, you engaged with one of the Investigator’s on-line profiles and sent images and videos depicting adult and child sexual activity. Twelve videos and seven images were deemed to be objectionable under s 2 of the Films, Videos and Publications Classification Act.
[17] On 26 May 2017 the Police and the Department of Internal Affairs executed a search warrant at your home address. A number of electronic devices were seized and have subsequently been analysed by the Department of Internal Affairs. 1053 objectionable files were discovered. The imagery involved children of all ages. Some involved adults violating children, including digitally, orally and by rape.
Victim Impact Reports and Statements
[18] A victim impact report on the younger victim, K, has been prepared jointly by a Caregiver Therapist and a Child and Adult Psychotherapist. The report highlights the extent of the psychological harm caused by your offending. It says K experiences mood swings, high levels of anxiety and hyper vigilance, sleep disturbance, separation anxiety when away from her mother, guilt and self-blame for the abuse. She lives in fear that one day you will return from prison and find her.
[19] K has also developed problematic behaviours including watching ‘hard’ pornography, attempting to run away from home, difficulty maintaining peer relationships and falling behind academically at school. K’s relationship with her mother has also been significantly impacted. The Report describes these impacts on K as “long term dilemmas”.
[20] The victim impact statement of C further highlights the extent of the harm caused by your offending. C describes herself as an emotional wreck. She is always on edge and gets really angry. She experiences panic attacks, anxiety, anger and depression. She has engaged in self-harm and was placed on a suicide watch list. Her
relationship with her mother is also strained because they were separated after your offending came to light.
[21] Your former partner, R, has also made a victim impact statement that describes how her relationship with you and your abuse of her children has disrupted her ability to co-parent her children with their respective fathers who are understandably angry at what has happened to their children.
Pre-Sentence Reports
[22]Three pre-sentence reports, dated 17 November 2017, 22 December 2017 and
31 January 2019 have been prepared by the Department of Corrections. The Corrections reports record an increasing readiness on your part to acknowledge your offending and a willingness to take steps to address it. The most recent report states that you now acknowledge your behaviour was appalling and despicable, that you can no longer hide from the truth and you accept you are a paedophile. It also states you are ready to attend the Child Sex Offender Treatment Programme at Rolleston Prison and that you recognise that you face a lengthy term of imprisonment. It assesses your risk of re-offending as medium to high.
[23] Four reports have been prepared for the purposes of s 88 of the Sentencing Act which requires that a sentence of preventive detention must not be imposed unless the Court has considered reports from at least two appropriate health assessors about the likelihood of the offender committing a further qualifying sexual or violent offence. Two reports dated 1 March 2018 and 6 March 2019 were prepared by Dr Easden, a registered Senior Clinical Psychologist at the Mason Clinic. Two reports, also dated 1 March 2018 and 6 March 2019, were prepared by Dr Jacques, a Consultant Forensic Psychiatrist. The earlier reports by Drs Easden and Jacques were prepared before the Crimes Act charges were laid. I will address these reports more fully later in my remarks. For now, it is appropriate to note that the later reports of the health assessors also state that you are now more willing to accept responsibility for your actions, that you are remorseful, and that you are willing and motivated to attend treatment. However, they also state that you remain a high risk of sexual re-offending if you are released from prison without treatment.
Personal circumstances
[24] Mr Nielsen, you are 52 years of age. You were born in Hawkes Bay of Samoan and Norwegian descent. You have siblings and a range of other family members present in New Zealand.
[25] You say your childhood gave rise to many traumatic experiences. Your father was an alcoholic and frequently abused you, your siblings and your mother physically, emotionally and sexually. When you were aged 11 your father died in a car accident, in circumstances that led you to believe you bore some responsibility. After your father’s death, you continued to have a troubled childhood. You were expelled from school at the age of 13. You were then placed in a “boys home” from which you ran away. You spent some time living rough on the streets in Wellington.
[26] You have had three long term relationships. The first lasted about seven years and you had two children with that partner. The second was about 20 years in duration. You married that partner and also had two children. That relationship ended after you were convicted and imprisoned for indecently assaulting and taking indecent photographs of two young girls while they were in a drug induced sleep. The victims were 12 and 13. Your third relationship was with R.
[27] You have an extensive criminal record for theft and dishonesty offences and a history of substance abuse.
[28] Since leaving school you have had various types of employment, the most recent of these being in the construction industry, and which prompted you to start using methamphetamine to cope with the long hours and the stress. The use of methamphetamine seems to have coincided with your renewed sexual offending.
[29] You are currently awaiting surgery for a heart condition and have a diagnosis of prostate cancer. These conditions are being managed by the prison health team. They are no reason not to impose a prison sentence on you.
Purposes and Principles of Sentencing
[30] In sentencing you, I am required to take into account the purposes and principles of sentencing as outlined in the Sentencing Act 2002. The Crown and your counsel agree that the relevant purposes in your case include those of accountability, denunciation, responsibility, deterrence and protection of the community.7
[31] I must hold you accountable for the harm caused and impose a penalty that reflects the extent of the harm not only to the victims but to the victims’ family and the wider community. It must also denounce your behaviour. Sexual offending of any kind must be denounced and deterred, particularly where it involves an abuse of trust of a young person in your care. I must also keep in mind that this sentence is to promote in you a sense of responsibility for the harm you have caused and to assist in your rehabilitation and reintegration.8
[32] The relevant principles I must take into account are the gravity of your offending, including both your culpability and the seriousness of the offending.9 The sentence I impose should be consistent with sentences engaging similar factual circumstances and if your offending is within the most serious of cases, I must impose the maximum penalty prescribed for the offence.10 I must also, however, impose the least restrictive outcome that is appropriate in the circumstances.11
Submissions
[33] The Crown submits that a finite sentence is inadequate. It says that that the Court can be satisfied that you are likely to commit another qualifying sexual offence if released at the end of a finite term sentence. The Crown submits that I should impose a sentence of preventative detention with a minimum term of 6 years’ imprisonment.
7 Sentencing Act 2002, ss 7(1)(a), (b), (e), (f) and (g).
8 Sentencing Act 2002, 7(1)(b) and (h).
9 Sentencing Act 2002, ss 8(a) and (b).
10 Sentencing Act 2002, s 8(e).
11 Sentencing Act 2002, s 8(g).
[34] In terms of any finite sentence I impose, the Crown submits that I should adopt a starting point of nine and a half to 10 years’ imprisonment, based on a starting point of eight years’ imprisonment for the Crimes Act Charges and a starting point of four years’ imprisonment for the publication charges, but adjusted to nine and a half to 10 years for totality and the need to avoid double counting of aggravating features. This submission takes into account the number, age and vulnerability of your victims, the significant breach of trust, the degree of premeditation and psychological coercion / grooming involved, the number and extent of your violations, the harm suffered by your victims and, in the case of the publication charges, the nature of the material and number of images seized. The Crown says there are no mitigating factors.
[35] The Crown also says a further uplift of nine months’ imprisonment is warranted to take account of your previous convictions and that you offended while subject to a sentence. The Crown further submits that a minimum non-parole period of at least 50 per cent is necessary in order to protect the public. The Crown accepts there should be a discount of 20 per cent to take account of your guilty pleas.
[36] Your counsel, Ms Vear, accepts that the Court needs to consider the appropriateness of imposing an indefinite sentence of preventive detention. She submits, however, that preventative detention is not appropriate or necessary in your case. In terms of calculating a finite sentence, your counsel agrees that a starting point of nine and a half to ten years’ imprisonment is appropriate for the totality of the offending. Your counsel further agrees that an uplift of nine months’ imprisonment is appropriate to take your prior offending into account and that a discount of 20 per cent for an early guilty plea is appropriate. Your counsel does not argue for any mitigating factors and agrees that a minimum non-parole period would be appropriate.
Approach
[37] Crown counsel and your counsel agree that that the appropriate approach is to determine a starting point for the Crimes Act charges and the publication charges respectively and then to adjust the starting point to reflect the totality of your offending. I agree that this approach best enables the determination of your overall culpability and I adopt it accordingly.
Aggravating and Mitigating Factors
Crimes Act charges
[38] R v AM sets the sentencing guidelines for sexual offending.12 The Court of Appeal sets out three bands of offending for circumstances where the lead offence is unlawful sexual connection.13 When determining into which band the offending falls, the Court must have regard to the aggravating features set out in s 9 of the Sentencing Act and may supplement these with the aggravating features discussed in R v AM. Ultimately the determination of which band the offending falls into requires an evaluative judgement that considers all the relevant circumstances.14
[39] I consider the following are relevant aggravating features of the Crimes Act charges. First, the scale and duration of your offending.15 It occurred over a period of about 14 months on numerous occasions with two victims - at least 8 occasions with K and two occasions with C. That said, I agree with your counsel that the number of victims goes to the scale and duration of the offending and should not be weighed as a separate aggravating factor. I also consider that the element of psychological coercion present also goes to the scale and extent of your offending.
[40] Secondly, the degree of violation involved in your offending is substantial. Your offending involved skin-on-skin contact between your penis and K’s genitalia, between your fingers and C’s genitalia, connection between your mouth and C’s genitalia and connection between your penis and K’s mouth.
[41] Thirdly, the Crown submits, and I agree, that your behaviour involved some premeditation.16 While the facts do not enable me to conclude that you sought out a relationship with R for the purposes of gaining access to her children, there are elements of your conduct that indicate a degree of premeditation to your offending. Placing a set of drawers across the door of the bedroom where K was asleep suggests a degree of planning. The continued nature of the offending over a 14-month period,
12 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
13 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
14 At [36].
15 At [47].
16 Sentencing Act 2002, s 9(1)(i).
where you engineered opportunities to groom and isolate your victims, also indicate your determination to take advantage of these young victims even if you may not have sought out their mother in order to create these opportunities.
[42] I must also consider the severity of the harm resulting from your offending.17 As stated in R v AM, harm is inherent in all sexual offending but an escalation in psychological problems may indicate additional harm that renders it an aggravating factor.18 In this case, K suffers a number of ongoing psychological problems as I have described, as does C. There is no doubt that your offending has caused substantial harm to this family.
[43] Lastly, it is evident that your victims were both vulnerable and your offending involved a significant breach of trust.19 Both victims were young. Your offending often occurred when they were alone with you and when they were asleep or starting to fall asleep. This made them especially vulnerable. They had been entrusted to your care.
[44] Like counsel for the Crown and your own counsel, I find it difficult to identify any mitigating factors relating to your offending, notwithstanding your very difficult childhood. The psychological and psychiatric reports say that you have no major mental illnesses and that you are articulate and intelligent. You knew what you were doing. Your difficult upbringing may go some way towards explaining your conduct. It can never justify or excuse what you did to those defenceless young children.
[45] I have taken note of the letter you have handed up today, in which you take the opportunity to express deepest regret and sincere heart-felt apologies to your victims for the mental and physical harm you have caused them, as well as the emotional stress they have had to endure throughout these court proceedings. You accept there is no excuse for what you have done. You also except the hurt and betrayal your offending has caused both the children and their mother and to your extended families. I take note of those statements. I do not consider however, that a separate
17 Sentencing Act 2002, s 9(d).
18 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
19 Sentencing Act 2002, s 9(1)(f) and (g).
discount should be offered for remorse in your situation. Bringing together the various factors I have mentioned. Accordingly, vulnerability, breach of trust, scale and duration of the offending, the degree of violation and severity of the harm are aggravating factors that are present to a high degree in your offending. The final factor of premeditation is present to a moderate degree. The presence of six aggravating factors elevates your offending to the upper end of band two or lower end of band three of the R v AM bands, increasing your culpability to a high degree. This justifies a starting point between eight and ten years’ imprisonment.
Relevant Cases
[46] Counsel for the Crown has directed me to a number of relevant authorities involving circumstances similar to those of your offending. Defence counsel agreed that these cases were sufficiently similar and agreed with Crown counsel’s analysis, as do I.
[47] The Court of Appeal in T v R confirmed that a mechanistic approach to the bands set out in R v AM is not appropriate. The Court is to adopt an evaluative approach, taking into account all the relevant circumstances.20 In T v R the offender was convicted on three charges of unlawful sexual connection and one charge of indecent assault on a young person. The victim was the offender’s step daughter and the violations occurred six times over a 20-month period. The Court identified the aggravating features as vulnerability, breach of trust, scale and duration and a degree of premeditation. The offending was placed in the middle of band two and the Court adopted a starting point of six years’ imprisonment.
20 T (CA 131-2018) v R [2018] NZCA 481.
[48] Similar features were also evident in both Botha v R,21 A v R,22 and Duffy v R.23 In each of those cases, starting points between seven and nine years’ imprisonment were adopted. The Court of Appeal in T v R noted that in setting the starting point the primary considerations are the number of incidents and the extent of the violation. Circumstances where there is only one representative conviction, but a substantial number of incidents will justify a higher starting point of around seven to eight years’ imprisonment.24
[49] Your offending is more serious than that in T v R because it involved two victims and a greater extent of violation. A v R involved offending on more occasions but did not involve the same extent of violation as your offending which included oral sex and offending against a number of victims. I consider your offending is in line with that of Duffy v R, justifying a starting point at the upper end of band two or lower end of band three.
[50] For all these reasons, I adopt a starting point of eight and a half years’ imprisonment on the Crimes Act Charges.
Publication charges
[51] On the publication charges, I accept the aggravating features of the publication charges as submitted by the Crown. The nature of the material and the size of the
21 Botha v R [2015] NZCA 196. The offender pleaded guilty to one charge of sexual violation by unlawful sexual connection and a second charge of indecent assault on a child under the age of
12. The offending was described as happening ‘dozens of times’ against the daughter of a close family friend over a 9-month period. The Judge adopted a starting point of 7 years’ and 9 months’ imprisonment.
22 A (CA 41-2017) v R [2018] NZCA 136. The offender was found guilty of one charge of unlawful sexual connection with a female under 12. The offending involved kissing, touching the victim’s breast and trying to penetrate her bottom with his penis. The offending was against the offender’s stepdaughter and had most probably occurred on more than 20 occasions over a 6-year period. The Judge adopted a starting point of 7 years and 6 months’ imprisonment.
23 Duffy v R [2013] NZCA 117. The offender was found guilty on three charges of indecent assault and two charges of unlawful sexual connection. There were two victims in this case. The first was the child of the family the offender was staying with, who was aged between 7 and 10 over the two-year period in which the abuse took place. The offending against the first victim involved kissing and licking the neck of the victim, touching her genitals and penetrating her vagina with his penis. The Second victim was the offender’s stepdaughter who was between 5 and six years old during the abuse. The offender made her suck his penis and on multiple occasions licked her vagina. Considering the vulnerability of the victims, the fact that there were multiple victims and two types of offending justified placing the offence in the upper end of band two. The Judge adopted a starting point of 9 years imprisonment.
24 T v R [2018] NZCA 481, at [25].
collection are an aggravating factor. As I have already noted, the imagery involved children of all ages with some involving adults violating children. A further aggravating feature is the organisation and maintenance of the material. As noted in Police v L, where an offender downloads or stores objectionable material there is an added aspect of premeditation which would not be present in simply viewing the material.25
Starting Point
[52] There is no guideline judgment for offending under the Films, Videos and Publications Classification Act. In the past, New Zealand Courts have adopted the sentencing guidelines of the United Kingdom, an approach that has been endorsed by the Court of Appeal.26 However, the UK guidelines have since been altered and it has been noted that the recommended starting points in the United Kingdom are now too low to be applied in New Zealand.27 In addition, in 2015 the maximum penalty for offending related to objectionable materials in New Zealand was increased from 5 to 10 years’ imprisonment.28 These factors indicate that the United Kingdom guidelines must be used with caution.29 As a result, I place greater reliance on the New Zealand decisions made following these legislative amendments.
Relevant Cases
[53] In R v Stevens the offender was convicted of eight charges of knowingly possessing objectionable publications.30 The offender possessed a total of 1,474 objectionable photographs and eight objectionable videos. Some of the content was of a more serious nature than in the present case. The relevant aggravating features included the size of the collection, the fact that the material was seriously offensive, a high degree of premeditation and the harm caused to the children depicted who are re-
25 Police v L [2016] NZHC 455 at [19(c)].
26 R v Zhu [2007] NZCA 470 at [15].
27 Stewart v DIA [2014] NZHC 2209 at [23]-[24].
28 FVPCA 1993, s131A amended by section 6 of the Films, Videos, and Publications Classification (Objectionable Publications) Amendment Act 2015.
29 See Tilyard v Police [2016] NZHC 1377 at [37], “ …this is a new era for sentencing associated with objectionable images and, somehow, the bar must be set to reflect that.”
30 R v Stevens [2016] NZHC 1574.
victimised every time the abuse is viewed. The Court adopted a starting point of two years’ imprisonment.
[54] The offending in R v Webb was more serious than R v Stevens; the offender pleaded guilty to making and distributing objectionable videos and knowingly importing, exporting and possessing objectionable publications.31 The offender possessed over 4,000 objectionable images and 200 video clips. The Court adopted a starting point of 7 years’ imprisonment.
[55] Your offending, Mr Nielsen, is more serious than that in Stevens as you not only possessed the objectionable publications but also made a number and distributed them. Your offending is less serious than Webb as your collection was much smaller and the files of a less serious nature. I consider an appropriate starting point for your offending is somewhere between two and seven years’ imprisonment. Accordingly, I adopt a starting point of four years’ imprisonment for the publication charges.
Adjusting for totality
[56] I acknowledge that there is some overlap between the Crimes Act charges and the publication charges. K was a victim in both sets of offending. Both sets of offending stemmed from your offending-related sexual arousal. However, there remain differences between the two sets of offending that justify a cumulative approach. Taking into account totality and the need to avoid double counting of aggravating factors, I adopt a cumulative starting point of ten years’ imprisonment.
Personal circumstances
Aggravating Factors relating to the Offender
[57] The Crown submits that an uplift of nine months is warranted to account for your history of offending.32 Your counsel agrees.
31 R v Webb [2016] NZHC 2966.
32 Sentencing Act 2002, s 9(1)(j).
[58] You have 82 prior convictions including sexual offences, dishonesty offences, violence, contravention of community-based sanctions, property offending and careless driving. The most relevant of these offences occurred in 2005 when you were convicted of wounding with intent to cause grievous bodily harm and indecent assault of two young girls. You administered a sedative to these young girls and then physically manipulated their bodies and clothing to obtain a better view of their genitalia. You then photographed the victims while they slept. For this you received a sentence of four years’ imprisonment for this offending.
[59] Also relevant is your conviction in 2016 for engaging in an indecent communication with a young person under the age of 16. This conviction relates to one of your current victims, C, to whom you sent inappropriate Facebook messages. For this offence you received a sentence of intensive supervision. While under this sentence, you committed a number of the publication offences, namely knowingly possessing and distributing an objectionable publication.
[60] I am satisfied that an uplift of nine months for your prior convictions is appropriate. This brings your sentence to 10 years and nine months’ imprisonment.
Mitigating Factors relating to the Offender
[61] It is accepted that you should receive credit for your guilty plea. I am satisfied that you pleaded guilty to each set of charges at the first reasonable opportunity. I agree with Crown counsel and your counsel that a discount of 20 per cent is appropriate. This results in a total period of imprisonment of eight years and seven months.
Minimum Period of Imprisonment
[62] Because I have determined that a determinate sentence of imprisonment of more than two years is appropriate, the court may order that you serve a minimum period of imprisonment.33 This minimum period must be greater than one-third of the
33 Sentencing Act 2002, s 86(1).
length of the sentence, which operates as the default minimum,34 but no greater than two-thirds of the length of the sentence.35
[63] The court may impose a minimum period of imprisonment where it is satisfied that the default minimum is insufficient either to hold the offender accountable for the harm done, denounce the conduct, deter the offender or others, or to protect the community.36
[64] Counsel for the Crown submits that a minimum period of imprisonment is warranted to fulfil the purpose of protecting the community because your offending is serious and occurred over a prolonged period. Secondly, the Crown submits that a minimum period of imprisonment is necessary to denounce your conduct. The Crown provided a range of authorities which establish that in cases of prolonged sexual offending against a relative, a minimum period of imprisonment will typically fall between 50-64 per cent of the sentence length.37 The Crown submits that I should impose the maximum minimum period of imprisonment in your case.
[65] Your counsel acknowledges that the conditions for imposing a minimum period of imprisonment have been made out.
[66] Given your history of offending and the fact that a prior prison sentence failed to deter further offending, I am satisfied that a minimum period of imprisonment should be imposed to protect the safety of the community and that that period should be set at the statutory maximum of two-thirds of your sentence. This results in a minimum period of imprisonment of five years and eight months. A minimum period of this length should also facilitate the necessary and extensive rehabilitation and treatment you clearly require.
34 Parole Act 2002, s 84(1) (the default period).
35 Sentencing Act 2002, s 86(4)(a).
36 Sentencing Act 2002, s 86(2).
37 R v I (CA70/08) [2009] NZCA 101 an MPI of 63% was upheld by the Court of Appeal. Pomare v R [2015] NZCA 191 an MPI of 60% was upheld by the Court of Appeal. Z v R [2012] NZCA 607 an MPI of 64% was upheld by the Court of Appeal.
Preventive Detention
[67] As you know, the Crown has applied for a sentence of preventative detention to be imposed on you in order to protect the community from the risks of your reoffending if you were to be released following a finite period of imprisonment.
[68] The purpose of preventative detention is to protect the community from those who pose a significant and ongoing risk.38 Under s 87(2) of the Sentencing Act, I may impose a sentence of preventive detention where, as in your case, an offender has been convicted of a qualifying sexual offence and was 18 years of age or over at the time of committing the offence, if I am satisfied that the person is likely to commit another qualifying offence if the person is released at the sentence expiry date.
[69] In determining whether you are likely to commit another qualifying offence if released at the expiry of your sentence, I must have regard to the following factors:39
(a)Any pattern of serious offending disclosed by your history;
(b)The seriousness of the harm to the community caused by your offending;
(c)Information indicating a tendency to commit serious offences in the future;
(d)The absence or failure of efforts by you to address the causes of your offending; and
(e)The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[70] In making that assessment, I must consider reports from at least two appropriate health assessors.40 As I have already noted, four reports by a senior clinical psychologist and a consultant forensic psychiatrist have been prepared for this purpose. The key question is whether the Court is satisfied that if released on a finite
38 Sentencing Act 2002, s 87(1).
39 Sentencing Act 2002, s 87(4).
40 Sentencing Act, s 88(1)(b).
sentence you are likely to commit a qualifying offence. I must come to a judicial decision on the matter. Proof beyond reasonable doubt is not required.41
Pattern of serious offending (s 87(4)(a))
[71] Crown Counsel, your own counsel and the health assessors agree that there is a pattern of serious sexual offending spanning from your 2005 offending which involved the indecent assault of two young girls, through to your offending against C in 2016 and the offending for which you are currently being sentenced. These offences are evidence of a proclivity or pattern for sexual offending, with a marked escalation in severity. I consider this first factor of pattern of serious offending is made out.
Seriousness of the harm to the community caused by the offending (s 87(4)(b))
[72] Counsel and the health assessors also agree that your offending has caused significant emotional harm, psychological harm, educational harm, sexual harm and financial harm, as is apparent from the victim impact reports and statements to which I have already referred. I consider this factor is also made out.
Information indicating a tendency to commit serious offences in the future (s 87(4)(c))
[73] Your counsel submits that Dr Easden’s most recent report provides the most reliable risk assessment as it utilises the greatest volume of information and engages actuarial instruments to assist with the assessment. Counsel for the Crown has provided excerpts from both Dr Easden and Dr Jacques’ reports, distilling commonalities in their assessment of the risk you pose.
[74] Dr Easden concludes that you pose a high risk of reoffending. This risk is particularly pertinent given your repetition of offending in the face of numerous adverse consequences including incarceration, loss of relationships and loss of employment. In his more recent report, Dr Easden says that given the extent and versatile nature of your risk of sexual offending, the Court would be justified in considering a sentence of preventive detention in order protect the community.
41 R v White [1988] 1 NZLR 264 (CA) at 268.
However, he also says that it is possible to protect the community through a lengthy prison sentence followed by an Extended Supervision Order.
[75] Because of the methodology he adopts, Dr Jacques does not state what level of risk you pose but identifies the most important risk factors linked to potential future offending. He says that it will be necessary for you to complete treatment for sexual offending and address these risk factors before you are released into the community. Dr Jacques further says that a sentence of preventative detention would be appropriate given your risk profile.
[76] I am satisfied from the information that you pose a high risk of reoffending and that this factor is also made out.
Efforts by the offender to address the cause of the offending (s 87(4)(d))
[77] Mr Nielsen, you have not yet successfully completed any sex offender treatment. The pre-sentence reports of 17 November 2017 and 22 December 2017 note that while imprisoned for your 2005 offending you refused to take part in the relevant sex offender programme. In contrast, Dr Easden’s report notes that in 2005 you self-referred to the SAFE programme but did not finish the programme due to receiving a prison sentence. The report further states that while in prison you were unable to take part in treatment as you moved prisons for employment purposes. Both sets of counsel have addressed me on this matter as well. It remains unclear which version of events is correct, although I acknowledge the strength of the submission by your counsel that a refusal to engage in treatment is not consistent with your self- referral and with your voluntary presentation and admission to the Police in regard to that offending.
[78] The Department of Corrections has confirmed that in 2009 following your release from prison you were referred to the SAFE programme. However, the request to take part in this programme was declined by Corrections and no reasons for this were recorded.
[79] The reports of both Dr Easden and Dr Jacques say your attitude towards rehabilitation and treatment appears positive and constructive. You have an overall
acceptance of your sexually deviant behaviour even if, as as the Crown submits, you continue to deny certain aspects of your offending.
[80] I conclude, particularly from the most recent health assessor reports that you are willing to undergo treatment but that this has yet to be put to the test. Which is also in your letter.
Does a lengthy determinate sentence provide adequate protection for society? (s 87(4)(e))?
[81] The Sentencing Act states the principle that a lengthy determinate sentence is preferable to an indeterminate sentence if this provides adequate protection for society. It has also been recognised, as defence counsel has submitted, that in some circumstances a finite sentence in combination with an extended supervision order will be sufficient to protect the community and that the availability of such an order can be taken into account when determining whether to impose a sentence of preventive detention.42
[82] As I have already noted, Dr Jacques says that a sentence of preventative detention would be appropriate given your risk profile. Dr Easden, however, says that while the Court would be justified in considering a sentence of preventive detention given the extent and versatile nature of your risk of sexual offending, it is also possible to protect the community through a lengthy prison sentence followed by an Extended Supervision Order.
[83] The Crown accepts that in some cases it has been found that a finite prison term, together with the availability of an extended supervision order, is sufficient to mitigate the risk of future offending. However, the Crown also submits that the availability of an extended supervision order is only one factor among many to be considered and that a finite sentence with an extended supervision order as a ‘backstop’ should not be viewed as an alternative to preventative detention.43 The Crown also says your case is similar to that in Strootbant v R where the Court of Appeal upheld a sentence of preventative detention stating the offender’s lack of
42 R v Mist [2005] NZLR 791; (2005) 21 CRNZ 490 (CA).
43 R v H [2007] NZCA 55 at [19].
insight into his offending and lack of empathy towards his victims.44 Crown counsel further submits that the age of the offender at release although relevant is not a determinative factor in considering whether preventative detention should be imposed.
[84] Your counsel refers me to the Court of Appeal’s decision in R v Mist in which the Court held that a sentencing Court must take into account the possibility of an extended supervision order when considering whether or not to impose a sentence of preventive detention.45 In difficult cases an ESO may tip the scales against preventative detention. You counsel disputes the comparison the Crown draws with Strootbant v R. She says you have evinced sympathy for your victims and you have considerable insight into your offending, your sexual proclivities and the damage you have caused to your victims, and that you are willing to engage in rehabilitation. Your counsel submits that a combination of oversight by the Police and Probation Services, alongside registration on the sex offenders’ list would be sufficient to prevent you from engaging in the high-risk behaviours identified in your psychiatric reports. Further imposition of 12 months of intensive monitoring could also be enforced.46 Counsel points to your likely age upon release as a factor that further reduces the likelihood of your reoffending.
[85] Mr Nielsen, as discussed you pose a high risk of reoffending. You have however, shown progress in your insight and willingness to engage in rehabilitation. I, therefore, do not see this case as falling into the category of Strootbant v R. I give weight to the fact that a lengthy prison sentence would give you the time to engage in the necessary rehabilitative programmes. I also give weight to the point made in Grant v R that the availability of an ESO has the advantage of allowing the risk assessment to be made at the time the prisoner is to be released.47
[86] On the other hand, I must also keep in mind the point made by the Court of Appeal in R v Mist that notwithstanding the availability of the imposition of an extended supervision order at the end of your sentence, ultimately I must apply the test set out in s 87(2)(c) of the Sentencing Act, which focuses on the risk of offending
44 Strootbant v R [2018] NZCA 10.
45 R v Mist [2005] 2 NZLR 791 (CA) at [102].
46 Parole Act 2002, s 107IAC.
47 Grant v R [2017] NZCA 614 at [52].
if you are released at the sentence expiry date for the possible determinate sentence.48 The clear conclusion I draw from the health assessor reports is that you pose a serious risk of serious sexual reoffending upon your release unless you successfully undertake appropriate rehabilitative treatment programmes. What no-one can say at this point is whether you will follow through on your commitment to undertake treatment or how successful those programmes will be if you complete them successfully.
[87] Dr Easden considers that mitigating factors that work in favour of a finite sentence followed by the possibility of an extended supervision order are the fact that you have not had treatment for your paedophilic interests in the past and that you are willing to undergo treatment now, the fact that you were able to contain your paedophilic interests for a period of almost 10 years (although I note that you were in prison for a good part of that period), that you are currently 52 years of age and are likely to be close to 60 by the time you are released and your sexual drive is likely to have reduced markedly, and that your access to children can be curtailed and monitored, and that you will be potentially serving an extended supervision order.
[88] I add to those factors the fact that an extended supervision order can apply for up to 10 years which would mean that your conduct could be kept under intensive supervision until you are 70 and that you are unlikely to pose a risk to the victims who have suffered so much at your hands. They will have grown past an age which is likely to attract your interest. They at least should not be at risk.
[89] Given the factors discussed above and having regard in particular to the principle that a finite sentence is preferable, I do not consider that preventative detention is necessary to protect the community. A lengthy prison sentence, plus the availability of an extended supervision order and intensive supervision upon release should be adequate to address the risks you pose.
[90] However, as will have been apparent, I have found this a very difficult decision to make. It is a case where the availability of an extended supervision order has tipped
48 R v Mist [2005] 2 NZLR 791 (CA) at [104].
the scales in favour of a finite sentence. For that reason, I strongly recommend that an extended supervision order be considered before you are released.
[91]Accordingly, I shall impose a finite sentence that is calculated as follows:
(a)A starting point of ten years’ imprisonment to reflect the totality of the Crimes Act charges and the publication charges;
(b)An uplift of nine months to reflect your prior convictions; and
(c)A deduction of 20 per cent to reflect your guilty plea;
[92]This results in an end sentence of eight years’ and seven months’ imprisonment.
[93] As discussed earlier, I shall also impose a minimum period of imprisonment of two-thirds of that term, being a minimum period of five years and eight months in prison.
Other orders
[94] As requested by the Crown and consented to by defence counsel, I make orders suppressing the following details of Mr Neilson’s offending:
(a)Mr Neilson’s relationship to the two victims (step father);
(b)The location of the offending (Waiake / North Shore); and
(c)The date of the offending against the victims (2015-2016).
[95] As also requested by the Crown, I make orders, which defence counsel does not oppose, for the destruction of all electronic images and videos that were seized from Mr Neilson and for the forfeiture of the electronic devices seized from Mr Nielsen, namely a Samsung Galaxy s7 Edge smart phone and accessories, a Samsung Tablet and a Samsung watch.49
49 Sentencing Act 2002, s 142N.
Imposition of sentence
[96]Mr Nielsen, please stand.
[97] Mr Nielsen, on the nine charges of sexual violation by unlawful sexual connection, attempted rape, indecent assault on a child under 12 years of age, knowingly making an objectionable publication, knowingly distributing an objectionable publication and knowingly possessing an objectionable publication, you are sentenced to imprisonment for eight years and seven months with a minimum period of imprisonment of five years and eight months.
[98] I also issue you with a clear warning that if you offend again in a similar manner, you are likely to be sentenced to preventive detention.
[99] Mr Nielsen, because you have committed a qualifying offence under the Child Protection (Child Sex Offender Government Agency registration) Act 2016 and are classified as a registrable offender. Accordingly, your name will be entered on the Child Sex Offender Register as soon as is practicable.50
[100]You may stand down.
Addendum
[101] As is apparent from my notes, I imposed a global sentence on all nine charges. Upon reflection, I have realised that I should have imposed the sentence of eight years and seven months with a minimum period of imprisonment of five years and eight months on the Crimes Act offences, which I consider to be the lead offences, and imposed a separate concurrent sentence on the publication charges.
[102]Accordingly, I amend my sentence as follows:
(a)On the three charges of sexual violation by unlawful sexual connection, one charge of attempted rape, and two charges of indecent assault on a child under 12 years of age, I sentence Mr Neilson to a term of
50 Sections 7 and 12.
imprisonment for eight years and seven months, with a minimum period of imprisonment of five years and eight months.
(b)On the charges of knowingly making an objectionable publication, knowingly distributing an objectionable publication, and knowingly possessing an objectionable publication, I sentence Mr Neilson to a term of imprisonment of three years and two months to be served concurrently with the sentence above.
G J van Bohemen J
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