R v Pateman
[2017] NZHC 2401
•2 October 2017
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF VICTIM PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2016-043-2087 [2017] NZHC 2401
THE QUEEN
v
KEITH CHARLES PATEMAN
Hearing: 2 October 2017 Counsel:
C E Clark for Crown
N P Bourke for DefendantSentence:
2 October 2017
SENTENCING NOTES OF THOMAS J
Introduction
[1] Mr Pateman, following a sentence indication, you pleaded guilty to the following charges:
(a) four charges of sexual conduct with a child under 12, two of them representative;1
1 Crimes Act 1961, s 132(3), maximum penalty 10 years’ imprisonment.
R v PATEMAN [2017] NZHC 2401 [2 October 2017]
(b) one charge of sexual violation by unlawful sexual connection;2 and
(c) three charges of sexual violation by rape, one of them representative.3
[2] In sentencing you, I will outline first the summary of facts to which you pleaded guilty. I will then turn to the victim impact statements, your personal circumstances, and the pre-sentence and other reports. I will set a starting point for the sentence before making adjustments to reflect your personal circumstances and guilty plea.
Offending
[3] The victim is now 12 years old. You were her neighbour and an associate of her parents.
Charge one – sexual conduct with a child (representative)
[4] This charge relates to your conduct between 1 November 2014 and
9 February 2015. On one occasion, you approached the victim when she was in the bedroom with one of her sisters. Once her sister left, you told the victim you wanted to be with her and wanted to fuck her. You then kissed her on the lips.
[5] You at one stage asked the victim if you could take photographs of her. You kissed the victim on a separate occasion and told her you loved her.
Charges 2, 3 and 4 – sexual conduct with a child under 12, sexual violation by unlawful sexual connection and sexual violation by rape
[6] Between 25 July 2016 and 26 September 2016, the victim, who was 11 years old, climbed out of her bedroom window at around midnight to come to your house. You asked her to do so. When she arrived you led her into your bedroom and pulled down the boxer shorts she was wearing before pulling down your own pants. You
pushed the victim onto your bed, kissed her on the lips, rolled her onto her stomach
2 Sections 128(1)(b) and 128B(1), maximum penalty 20 years’ imprisonment.
3 Sections 128(1)(a) and 128B(1), maximum penalty 20 years’ imprisonment.
and lightly slapped her buttocks with your hands and a fly swat. You asked her if it felt nice and she replied yes.
[7] You then rubbed the victim’s genital area with lubricant and inserted a plastic
homemade penis into her vagina, removing it when the victim said “ow”.
[8] You then penetrated the victim’s vagina with your penis whilst kissing her.
[9] You asked the victim if she would be your girlfriend when she turned 16. You told her you loved her. The victim suffered some abdominal pain the following day.
Charges 5 and 6 – sexual conduct with a child under 12 and sexual conduct by rape
(both representative)
[10] The victim visited you on three further occasions around midnight between
25 July and 1 November 2016. You would slap her buttocks with your hand and/or the fly swat.
[11] On each occasion you led the victim to your bedroom, pulled down her pants and your own pants and then pushed her onto your bed, lifting her legs. On each occasion you applied lubricant to your penis and the victim’s genital area before inserting your penis into her vagina.
[12] On some occasions you gave the victim a cigarette and alcohol.
Charges 7 and 8 – sexual conduct with a child under 12 and sexual violation by rape
[13] On 1 November 2016, the victim celebrated her 12th birthday and you gave her two rings. At about midnight she climbed out of her bedroom window to come to your address. You slapped her buttocks and raped her. You asked her if she wanted to be your girlfriend.
Victim impact statements
[14] The victim’s parents on behalf of the family and the victim describe how they previously socialised with you and trusted you but you abused that trust. The victim has attended weekly counselling sessions and has become frightened and angry. They say you have taken away their daughter’s innocence. They say the victim did not understand at the time that what you were doing was wrong and that you manipulated her.
[15] They describe the victim as a simple, trusting girl who has learning difficulties and who suffers from epilepsy.
[16] They say it was your idea to put a gate between your property and that of the victim’s family to make it easier to come and go between the two. They say you were trespassed from their property for two years after you behaved inappropriately towards the victim. After that period expired, they chose to give you the benefit of the doubt.
[17] In their updated statement, they express concern that, despite pleading guilty, you continue to deny much of the offending, saying this shows your continuing manipulation and lies, and your obvious lack of remorse. They stress how deeply the victim has been hurt, how frightened she is of men, and how the ongoing stress from the offending and these proceedings has affected her schooling and problems with epilepsy.
[18] A letter from the victim’s counsellor confirms those impacts.
[19] Because of the proximity of your house to theirs, the victim’s parents are concerned that if you are released to your home, they will be forced to sell their home because they do not want you near their children.
[20] Your counsel, Mr Bourke, has today at your request conveyed your apologies to the family via the Court.
Personal circumstances
[21] You are 59 years old. You have one previous conviction in 1990 for unlawful sexual connection with a girl aged between three and 11. You were sentenced to four and a half years’ imprisonment for that offending, during which time you completed the Kia Marama Child Sex Offender Special Treatment Unit Rehabilitative Programme.
Pre-sentence report
[22] The pre-sentence report assesses you as having a medium to high risk of reoffending, and a high risk of harm to others.
[23] The report writer notes your conflict over what you described as separate minds, on the one hand being sexually aroused by the victim and on the other knowing it was wrong. You acknowledged the victim’s vulnerability but nevertheless perceived some of her actions as being sexual advances. You continued to deny aspects of the offending to which you have pleaded guilty.
[24] You expressed remorse and showed some insight into your offending, acknowledging the long-term harm to the victim and becoming quite upset when discussing it. You explained the knowledge you retained from the Kia Marama programme and stated you ought to have sought help but you did not know where to turn. You stated you are motivated to undertake further programmes in prison to ensure you do not hurt anyone else.
Preventive detention
[25] At your sentence indication, I noted the principle that a lengthy determinate sentence is preferable to a sentence of preventive detention if it provides adequate protection for society.4 I have considered the reports of the two health assessors as
required.5
4 Sentencing Act 2002, s 87(4)(e).
5 Section 88(1)(b).
[26] The psychologist’s report canvassed your problems with depression, your attempted suicide and that you yourself were subject to sexual abuse at the hands of a family member at a young age. You indicated a preference for pre-pubescent girls, yet have maintained intimate relationships with adult women without difficulty.
[27] When discussing both previous and present offending, you displayed considerable distress. You maintained that some of the detail of the offending is incorrect and shifted responsibility onto the victim, calling her behaviour promiscuous and the activity consensual. You did express concern for her future well-being and ongoing effects of your actions.
[28] Your progress in the Kia Marama programme was rated as moderate to high but you have a tendency to focus on other people’s problems rather than address your own. The report writer considered your current convictions indicate a cognitive distortion, an inability to disengage from situations of a high risk of re-offending, and treatment failure.
[29] In terms of general psychometric assessment, you scored highly on avoidant, anxiety and post-traumatic stress scales. In terms of the Automated Sexual Recidivism Scale (ASRS), you were in the low risk category. Eight per cent of offenders in that category reoffend within 10 years. The Violence Risk Scale: Sexual Offender (VRS-SO) assessment placed you in the medium-high risk category, a category with a rate of sexual reoffending of 10.5 per cent within five years. Particular aspects of high risk were identified and rehabilitation in those areas recommended.
[30] The psychologist concluded you have a moderate to high risk of reoffending. He noted you are sufficiently aware of the impact of your sexual offending to appreciate the need to undertake further treatment which the psychologist recommended as a means of reducing your risk of reoffending. He also recommended counselling in respect of the sexual offending which took place against you when you were a child.
[31] The psychiatrist caveated and concluded his report by noting ethical problems with using psychiatric risk assessments to influence punishment where they are intended to assess rehabilitation needs. He emphasised the inability of reoffending risk assessments to provide a likelihood of a particular offender reoffending, saying they can only ever be general rather than specific to an offender. In his opinion, actuarial tools may distort risk assessments by depicting an accuracy which is not real, particularly given potential treatment opportunities between now and release.
[32] His descriptions of your previous depression and suicide attempt, and current mood, cognitive abilities and levels of anxiety accorded with those of the psychologist. You have emphysema which leaves you unable to walk further than
100 metres without feeling breathless.
[33] You reported no offending between your previous and present offending. You again emphasised what you saw as the victim’s sexualised behaviour. You continued to deny components of the summary of facts and objected to the term “rape” because you said that was something someone forced another to do. You nevertheless expressed disgust at what you have done, saying you hate yourself.
[34] The psychiatrist noted the escalation in your offending and tendency significantly to diminish your culpability. He referred to your depression, problems with social relationships, lack of general criminality, and your manageability in terms of completion of the Kia Marama programme. He considered that, although your present offending could be viewed as treatment failure, it could equally reflect treatment decay.
[35] The psychiatrist was of the opinion there are multiple factors contributing to your offending which warrant further assessment following sentencing. He was concerned you may have planned the offending for some time. He found significant evidence that you struggle to deal with stress and to regulate your mood. He considered it likely the abuse you suffered as a child, your depression, and lack of social support contributed to your offending by limiting your ability to manage distress. He considered you would be a good candidate for further assessment and
sexual offender treatment programmes which would substantially modify your risk of reoffending when released. He was of the opinion the likely deterioration of your chronic health problems while in prison may substantially reduce your risk of reoffending.
[36] In conclusion, he stated that although there would be justifiable concern for reoffending if you were released unsupervised into the community at present, your risk may be substantially reduced with further assessment and intervention while in prison, and ongoing support, treatment and supervision when released.
[37] The Crown submits your offending represents a pattern of and escalation in offending, with grave consequences for your victim and to the wider community, and that you have a tendency to commit similar offences in the future. Ms Clarke points out that your participation in the Kia Marama programme did not prevent your reoffending, saying you continue to minimise your offending and dispute the summary of facts, and have a distorted perception of young girls and their behaviour. In those circumstances, she submits the Court ought to err on the side of caution and impose preventive detention.
[38] Mr Bourke acknowledges the significant harm to the victim and community but points to the substantial gap between your offending. He notes the variability of the actuarial tools analyses, particularly the variation between your low risk categorisation in ASRS and moderate-high risk categorisation in VRS-SO, and emphasises the psychiatrist’s opinion that further assessment and intervention can substantially modify your level of risk when released. In respect of your denial of some aspects of the summary of the offending, he points out that there was a degree of pragmatism in accepting the sentencing indication. He submits all these factors, along with your motivation to engage in further treatment, points away from the need for preventive detention to protect the community.
[39] I am cognisant, too, of the victim’s parents’ concerns when considering preventive detention. The purpose of preventive detention is to protect the community from ongoing risk, rather than punishing you for the present offending. I cannot, for instance, impose preventive detention as a means of preventing you
returning to your home upon your release from prison. Conditions as to where an offender lives on release fall within the remit of the Parole Board. The parents’ concerns are relevant to the seriousness of the harm caused by the offending. That level of harm is clearly very high. You have caused considerable ongoing harm to a young child and considerable harm to her wider family.
[40] While the reports indicate you are at risk of reoffending, they do not indicate that society would be inadequately protected by a determinate sentence if that sentence is accompanied by appropriate forensic assessments and rehabilitation programmes. You are open to having treatment and, despite the fact that you refuse to accept parts of the summary of facts, your lack of reoffending for almost 25 years points to treatment having worked for a considerable period of time. As the psychiatrist said, your reoffending could be seen as decay, rather than failure, of your previous treatment. If further assessment reveals additional concerns as he suspected, treating those will also be likely to improve public safety. When one considers your age, and the fact your emphysema will deteriorate, renewing your treatment via rehabilitation programmes and appropriate measures following release are likely to provide the community with sufficient protection for the remainder of your life.
[41] The possibility of imposing an Extended Supervision Order (ESO) is also relevant to the assessment of preventive detention, telling against preventive detention where the decision is finely balanced.6 Rehabilitation undertaken during your sentence may change your risk categorisation. An assessment of the need for an ESO at the time of release would address remaining concerns as to risk.
[42] Finally, I note that you will be placed on the Child Sex Offender Register. This provides additional protection from the risk of future offending in that it will allow the police to monitor your whereabouts, your activities and your association with children for the remainder of your life.
[43] In those circumstances, preventive detention is not warranted.
6 R v Parahi [2005] 3 NZLR 356 (CA) at [59]–[60] and [87].
Starting point
[44] The guideline sentencing judgment for sexual violation offending is R v AM.7
In setting the starting point, I have taken into account the following aggravating features of your offending:
(a) Premeditation.8 You groomed the victim with the result she was compliant when you asked her to come to your house. I take note of the alcohol and cigarettes you gave the victim on occasion. There was a high degree of premeditation and the offending was predatory.
(b)Vulnerability.9 The victim was particularly vulnerable because of her age and the disparity in age between you and her. Her parents describe her as simple and trusting with learning disabilities. You exploited those.
(c) Extent of harm.10 The victim impact statement highlights the extent of harm suffered by the victim and the guilt suffered by her parents. The victim has attended counselling sessions and coping with the offending will be ongoing.
(d)Multiple incidents.11 The indecent acts of kissing the victim were in the nature of grooming and occurred approximately 18 months before the more serious offending. The lead charges arose over a period of approximately four months involving five rapes and one sexual violation on the same occasion as one of the rapes.
(e) Breach of trust.12 While you had no familial ties with the victim, having socialised with her parents and being 58 years old as against her age of 11, you were in a position of authority and your behaviour
involved a breach of trust to a moderate degree.
7 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
8 Sentencing Act 2002, s 9(1)(i); and R v AM, above n 7, at [37].
9 Sections 9(1)(g), 9A(2)(a); and R v AM, above n 7, at [42].
10 Sections 9(1)(d), 9A(2)(b); and R v AM, above n 7, at [44].
11 Section 9(4); R v AM, above n 7, at [47].
12 Sections 9(1)(f), 9A(2)(c); and R v AM, above n 7, at [50].
[45] Section 9A of the Sentencing Act 2002 requires the Court to take into account specified aggravating factors if applicable in a case involving violence against a child under 14 years. To the extent that sexual violation offending is inherently violent, s 9A applies. Although the factors are implicit in the aggravating factors I have already identified, I confirm I have taken into account the defencelessness of the victim, the serious or long term psychological effect on her and the magnitude of the breach of the relationship between you and the victim.
[46] The Crown submits your offending sits in the lower end of rape band four, where the starting point range is 16–20 years’ imprisonment, saying this case attracts a starting point of 16–18 years’ imprisonment. Mr Bourke says when your offending is looked at overall, it fits within rape band three and a starting point of 12–14 years
is appropriate.13
[47] I have referred to a number of comparable cases to determine the appropriate starting point for your offending.14 Your offending falls into the lower end of band three of R v AM, where the starting point range is 12–18 years. Contrary to the Crown’s submission, cases which sit at the upper end of band three and lower end of band four are even more serious than your offending. The Court of Appeal in R v AM, described band three as follows:
[105] This band will encompass offending accompanied by aggravating features at a, relatively speaking, serious level. Rape band three is appropriate for offending which involves two or more of the factors increasing culpability to a high degree, such as a particularly vulnerable victim and serious additional violence, or more than three of those factors to a moderate degree. Particularly cruel, callous or violent single episodes of offending involving rape will fall into this band as is demonstrated by R v
Singh,15 …
[48] For example R v R, referred to in R v AM as falling at the upper end of band three, involved offending against the defendant’s stepdaughter who was three years
old.16 He raped her and inserted an object into her anus. There was a significant
13 The rape bands are set out at [90] in R v AM, above n 7.
14 R v R [2017] NZCA 210; Lam v R [2016] NZCA 114; R v P [2015] NZHC 1686; R v Prasad [2014] NZHC 3014; R v Batey [2012] NZHC 3001; and R v R (1990) 6 CRNZ 370 (CA) referred to in R v AM, above n 7, at [106].
15 R v Singh CA348/05, 26 April 2006.
16 R v R (1990), above n 14.
degree of violence and brutality which is absent in your case. Other cases referred to at the upper end of band three involved offending spanning a longer period of time, significant violence, multiple victims, home invasion and abductions, and degrading sexual activity, thus warranting higher starting points.17
[49] There are some similarities with a 2017 case also known as R v R, where a
15 year starting point was upheld on appeal.18 That case involved the offender’s
11 year old daughter. The offending involved sexual violation by rape, sexual violation by unlawful sexual connection, indecency with a child under 12 and breaching a protection order. The offending took place at least weekly over a
10 month period. In contrast, you are not a family member and your offending, involving five rapes and one sexual violation on the same occasion as one of the rapes, over a period of months took place comparatively few times. Present in your case, which was not present in R v R, was the grooming behaviour, which includes the indecency charges. Overall, however, the offending in R v R was significantly more serious than your offending.
[50] In my assessment, your offending attracts a starting point of 12 and a half
years’ imprisonment.
Uplift
[51] Your previous conviction for unlawful sexual connection warrants an uplift. Your counsel submits any uplift ought to be minimal due to the almost 25 year time lapse between the offences. Your previous offending is, however, of a very similar nature. An uplift of six months is appropriate.
Personal mitigating factors
Remorse
[52] Any indications of genuine remorse may attract an additional discrete discount.19 You have expressed remorse, insight into your offending, and a genuine
17 For example R v Batey, above n 14 and R v P, above n 14.
18 R v R [2017], above n 14.
19 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
desire to undertake rehabilitation. Your remorse, however, must be considered with some circumspection as the two health assessors note. As I have already said, you continue to deny components of the offending, despite your guilty plea. You project onto the victim behaviours you say encouraged your offending. I decline to make any additional discount for remorse.
[53] Mr Bourke submits a discount might be appropriate to reflect some six and a half months spent on restrictive bail. You were subject to a curfew from between
7.00 pm and 7.00 am. You were confined to Lower Hutt City and required to report to police three days a week. There were no issues with your compliance. I am not satisfied those conditions of bail were to the restrictive degree required to entitle you to a further discount.
Guilty plea
[54] Given it was entered immediately following the sentence indication, I allow the full 25 per cent discount for your guilty plea.
[55] That discount results in an end sentence in respect of all the offending of nine years and nine months’ imprisonment.
Minimum period of imprisonment
[56] The Crown submits I should impose a minimum period of imprisonment (MPI). MPIs have been imposed in cases involving similar offending.20 I consider such a period appropriate in this case. The relevant factors I have taken into account are:21
(a) holding you accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which you were involved:
20 For example Lam v R, above n14; R v Batey, above n 14; and R v AM, above n 7.
21 Sentencing Act 2002, s 86.
(c) deterring you and other persons from committing the same or a similar offence: and
(d) protecting the community from you.
[57] Mr Bourke accepts an MPI is not uncommon in cases similar to yours. However, he submits mitigating factors such as your remorse, genuine desire to undertake rehabilitation and guilty plea ought to result in an MPI of no more than half your sentence.
[58] With the exception of remorse, I accept those reasons go some way to addressing the factors I am required to take into account. I would add your health may be similarly considered, as it has been in previous cases where a 50 per cent MPI on a 15 year sentence was imposed.22 Nevertheless, there remain concerns for deterring others from similar offending and denouncing your conduct. Having reviewed cases of a similar nature,23 I consider an MPI of five years is appropriate.
Child Sex Offender Register
[59] One further consequence for you today is your registration on the Child Sex Offender Register. This imposes reporting obligations on you and you will be given written notice of those obligations and penalties.24
Result
[60] Mr Pateman, please stand. Mr Pateman, I sentence you to nine years and nine months’ imprisonment which I impose in respect of the charges of sexual
violation by rape. On the charge of sexual violation by unlawful sexual connection
22 R v AM, above n 7, at [159].
23 For example R v AM, above n 7; and R v Gordon [2009] NZCA 145.
24 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, ss 4 and 7, and sch 2.
you are sentenced to five years’ imprisonment and on the charges of sexual conduct with a child under 12, three years on each, all concurrent. I impose an MPI of five years’ imprisonment.
Thomas J
Solicitors:
Crown Solicitors’ Office, New Plymouth
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