R v Robertson
[2022] NZHC 3047
•17 November 2022
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IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2021-042-001679
[2022] NZHC 3047
THE KING v
TANDY GABRIEL BRYANT ROBERTSON
Hearing: 17 November 2022 Appearances:
J M Webber for Crown
A J D Bamford for Defendant
Judgment:
17 November 2022
SENTENCING OF GRICE J
[1]Mr Robertson, you appear for sentencing on the following charges:1
1 Mr Robertson was convicted on 4 October 2022 in the Nelson High Court.
R v ROBERTSON [2022] NZHC 3047 [17 November 2022]
(a)three charges of doing an indecent act on a young person aged under 16;2
(b)sexual connection with a young person under 16;3
(c)failing to assist a person exercising a search power;4 and
(d)breaching an extended supervision order.5
The offending
[2] I base the summary on an amended summary of facts provided by the Crown. No issue has been taken with those on your behalf.
[3] On 22 May 2021, the victim, who was then 15 years of age, hitchhiked to Nelson, where she met with some older friends at a park in the evening. She went with those associates to the defendant’s accommodation where she and the defendant, Mr Robertson, were introduced.
[4] Mr Robertson told the victim that he really liked her, and there was a conversation about their ages. Mr Robertson said he was 27 at the time, when he was in fact 40 years of age, and the victim told him that she was 15.
[5] Mr Robertson started to kiss and touch the victim’s neck and touch her leg. He then pulled his penis out and began masturbating in front of her. The defendant then grabbed the back of the victim’s head and guided her mouth down onto his penis, where she proceeded to perform oral sex on him.
[6] Someone entered the room, causing Mr Robertson to push the victim away and put his penis back into his pants. The third person asked the victim to leave the premises, and she left and began walking towards town. The defendant followed her
2 Crimes Act 1961, s 134(3) — maximum penalty seven years’ imprisonment.
3 Section 134(1) — maximum penalty 10 years’ imprisonment.
4 Search and Surveillance Act 2012, s 178 — maximum penalty three months’ imprisonment.
5 Parole Act 2002, s 107T — maximum penalty two years’ imprisonment.
and asked if she would like to go to his friend’s house. She agreed and they caught a bus there.
[7] At the friend’s place, Mr Robertson took his penis out and began masturbating again. He asked the victim if he could ejaculate inside her, but she declined as she did not want to get pregnant, and the defendant ejaculated on her face.
[8] Mr Robertson was arrested on 21 October 2021. The next day, he refused a request by a police detective under the Search and Surveillance Act 2012 to provide the lock code to his cell phone. Nevertheless, evidence before the Court, that is photographs of the victim’s cell phone, show that the defendant sent further text messages to the victim following the offending. He said he loved her and asked if she loved him and attempted to arrange further meet-ups.
[9] At the time of the offending, Mr Robertson was subject to an extended supervision order which required him not to associate with people under the age of 16.
Victim impact
[10] It is important to acknowledge that this offending has had a lasting and profound impact on the victim, who read out her victim impact statement. She has struggled with depression, anger and sadness as a result of the events. She has had thoughts of taking her own life. The offending has changed the way she looks at people and forced her to move in order to get her life back on track. She has found it difficult to regain motivation and she has found it difficult to move on.
Submissions on sentencing
[11] Mr Webber on behalf of the Crown submitted that the appropriate starting point for the sexual offending as the lead offence is three and a half years’ imprisonment, pointing to the Court of Appeal decisions in Faapuea v R and R v Misileki.6 He then submits that a discrete uplift of six months’ imprisonment is needed to reflect the breach of the extended supervision order and further uplift of six months for the two previous convictions for sexual offending in 2012 (indecent assault of a female 12-16)
6 Faapuea v R [2020] NZCA 20; and R v Misileki [2008] NZCA 513.
and 2014 (assault with intent to commit sexual connection with a female over 16). This results in a starting point of four years and six months’ imprisonment. A 15 per cent discount is then suggested for Mr Robertson’s guilty plea. Mr Webber also made some submissions on the cultural impact report which I will refer to later.
[12] Mr Bamford for Mr Robertson agrees that the starting point of three years and six months is in the range. He submits that any uplift for the breach of the extended supervision order should be limited to three months, being mindful of the need to avoid double counting. He does accept the defendant continued to contact the victim after the conduct giving rise to the charges. Mr Bamford then argues a discrete uplift of two months would be sufficient to reflect Mr Robertson’s previous convictions, noting again the risk of double counting. He highlights the fact that Mr Robertson served his last sentence without parole and suggests that had the s 27 report been available to the sentencing court, that sentence may well have been less severe. Those discounts would result in a starting point of three years and nine months.
[13] In terms of discounts, Mr Bamford suggested a 25 per cent discount be given for the guilty plea, and a similar discount should be provided for the factors identified in the s 27 cultural and personal report. Overall, it is submitted that an end sentence of two years’ imprisonment is appropriate in the circumstances, supported by release conditions directing further psychological assessment and some other conditions directed at rehabilitation.
Approach to sentencing
[14] There are two steps involved in sentencing.7 The first step requires the Court to calculate the starting point, incorporating the aggravating and mitigating factors of the offence. The starting point must have regard to all the circumstances, it must reflect the seriousness of the conduct and the culpability inherent in the particular offending.8 The second step is to adjust the starting point by reference to aggravating and mitigating factors personal to Mr Robertson together with any guilty plea discount to reach an end sentence.9
7 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
8 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [28] and [32].
9 Moses v R, above n 7.
[15] Counsel have taken the charge of sexual connection as the lead charge and I approach the sentencing on a global basis given that the charges arise out of the same events.
Pre-sentence reports
Provision of Advice to Courts (PAC) report
[16] I have also considered, in addition to the s 27 report before the Court, the Provision of Advice to Courts report (the PAC report). It notes that Mr Robertson’s history of sexual offending stretches back, he has a total of 66 previous convictions, although they are mainly for low-level dishonesty. It describes him as having an “entrenched pattern of non-compliance” with community-based sentences and Court-imposed bail.
[17] Mr Robertson advised the report writer that in the lead-up to this offending he had been experiencing difficulty obtaining suitable accommodation and managing his mental health. However, concerningly, Mr Robertson seems to have sought to minimise his culpability in the offending. Mr Robertson’s account of the events was essentially that he was helpless to resist as the victim pinned him to the sofa with her arms and performed oral sex on him.
[18] That version of events is, of course, utterly implausible. As the victim noted in her victim impact statement, “Tandy is bigger than me, I couldn’t really do anything about what he was doing to me”.
[19] Further, while Mr Robertson is said to have expressed regret for his offending, the writer considered the regret appeared to be more directed at being caught and held accountable for his actions, and notes that he “did not express specific remorse or empathy toward his victim”.
[20] Mr Robertson does acknowledge that he has unresolved issues around targeting young and vulnerable females and has engaged in further counselling while on remand. He says he plans to address his offending while in prison. He hopes to secure a place in the child sex offender treatment programme and be released into a
community home for sex offenders that would provide him with suitable housing and reintegrative support. However, the writer notes that the offending occurred despite Mr Robertson having completed the adult sexual offender treatment programme in 2018, and despite being subject to an extended supervision order. The offending was his fourth breach of a supervision order. However, I note that, as Mr Bamford pointed out, most of the breaches were in relation to drugs and alcohol, which of course lead to disinhibition of impulses which in turn is likely to lead to sexual offending, as in your case Mr Robertson.
[21]Overall, the writer recommended a sentence of imprisonment, concluding:
Mr Robertson presents as lacking pro-social influences, having a deficit in impulse control, a high level of sexual pre-occupation, a propensity to seek sexual intimacy with vulnerable females and those under the age of consent, a sense of entitlement and, a disregard for court imposed conditions. It is therefore my assessment that Mr Robertson is at an above average risk of further sexual offending and that he poses a very high risk to vulnerable females and females aged 12-16 years … Additionally, Mr Robertson’s general risk of re-offending is assessed as very high. On that basis, his risk of harm to others must also be considered very high.
Section 27 report
[22] Also before me is a report under s 27 of the Sentencing Act 2002 in relation to cultural and upbringing matters (the s 27 report). The s 27 report makes for sober reading. Mr Robertson had a turbulent and troubled upbringing, in which violence, sex and substance abuse featured from an early age. He frequently witnessed domestic abuse by his step-father against his mother as a young child. He reports that he began smoking cigarettes and drinking alcohol when he was aged 10 to 13, although he stopped drinking when he was about 15 or 16, but began using heroin and opium. Mr Robertson has long struggled with anxiety and mental health, and reports attempting suicide “countless times” since the age of 13. His mother told the writer that her son had experienced a severe psychotic breakdown when he was about 17.
Starting point
[23] I turn to the sentencing. Section 134 of the Crimes Act 1961 is part of a regime designed to increase protection of vulnerable young persons. There is no guideline
case for offending under that provision.10 There is no doubt this reflects a wide variety of conduct and circumstances in which it can arise. Section 134 encompasses both indecent acts and sexual connection, which have maximum penalties of seven and 10 years’ imprisonment respectively. The starting point is to be adopted by reference to cases with similar facts and taking into account aggravating factors of the particular offending.
[24] Counsel referred me to a number of decisions, including R v Johnson, where the Court of Appeal identified a range of aggravating factors in cases under s 134.11
[25] In Mr Robertson’s case I consider the following aggravating factors were present:
(a)Age disparity: there was an age gap of 25 years between Mr Robertson and the victim. Not only did Mr Robertson know the victim was 15, he also lied about his own age. It would seem he did so to make himself appear more attractive to the victim.
(b)Vulnerability: the victim had accompanied an associate to the defendant’s accommodation. She does not appear to have had a place to stay the night.
(c)Persistence: the offending occurred on the same night, but over two different occasions. After the third party interrupted the first instance of sexual conduct, Mr Robertson pursued the victim and invited her back to a friend’s house where he committed a further indecent act. There was a deliberate and sustained attempt to continue the sexual conduct with the victim.
(d)Degrading: the act of ejaculating on the victim’s face was degrading.
10 R v Johnson [2010] NZCA 168 at [14].
11 At [17], [21] and Appendix A. These factors included the existence of a breach of trust, full penetrative sex, a significant age gap between the offender and the victim, abusive and demeaning behaviour, repeated or frequent sexual contact, grooming or premeditation, a vulnerable victim, multiple victims, and adverse effects on the victim.
(e)Harm to the victim: the victim has suffered significant harm as a result of the offending heard from her today. As the Court of Appeal has observed, “young girls who consent to sexual activity with considerably older men frequently become disturbed when they reach an age where they have full understanding of what they have been involved in”.12
[26] In R v Johnson, the Court of Appeal noted the four-year starting point indicated in R v H is “still a useful reference point in relation to sentencing for sexual connection with young persons, where the offending shares features present in that case”.13 However, the Court continued to say that the result might different where there are a combination of different aggravating and mitigating factors and therefore, that starting point “should be seen as no more than a mid-range in the range of offending where there is moderate culpability”.14
[27] In Johnson, the 36-year-old offender had a sustained sexual relationship with the 15-year-old victim for about three months. The relationship was dominating and demeaning, with the defendant calling the victim derogatory names and treating her as his “sexual play-thing”. The victim suffered serious emotional harm as a result of the contact. The Court of Appeal noted a starting point of three years and nine months was at “the bottom of the range” given the number of significant aggravating factors.15
[28] In R v H, the 53-year-old defendant was responsible for looking after the victim of 15 years of age while her mother was overseas.16 The two formed a close relationship, which became sexual, and it is estimated that sexual intercourse occurred about 15 to 20 times before she turned 16. The Court of Appeal described the starting point there of three years and six months as “most generous”, commenting a starting point of at least five years (adjusted down for totality) might have been justified.17
12 At [13], citing R v Boyd (2004) 21 CRNZ 169 at [40].
13 At [17].
14 At [17].
15 At [22].
16 R v H [2008] NZCA 237.
17 At [19].
[29] In Faapuea v R, the defendant was a 20-year-old male and the victim 14 years of age.18 He sent persistent text messages to come and meet him. Mr Faapuea then took her to a secluded spot, although she had earlier indicated she wanted to be left alone and proceeded to digitally penetrate and perform oral sex on her. A starting point of two years and nine months was upheld by the Court of Appeal.
[30] In R v Misileki, there was an age difference of 12 years between the offender and the 14-year-old victim.19 In that case the offender persuaded the victim to come into his room, where he had oral sex and sexual intercourse with her. After, he sent her text messages in an attempt to persuade her not to tell anybody what had occurred. The Court of Appeal held the starting point of three years and six months was not excessive, although it was “toward the top of the range”.20
[31] I am of the view three years and six months as a starting point in this case is too high without more factors, given those authorities. I consider a different starting point is appropriate in this case and take the view that an appropriate starting point here is three years.
[32] If there had been further factors similar to those in Johnson and R v H, I would have agreed with the Crown’s submission about the starting point, but those factors are not present here to the same extent that they were in those cases.
[33] In those cases, starting points of three years and nine months’ imprisonment and three-and-a-half years’ imprisonment were adopted, and the sexual offending was ongoing over a number of months. By contrast, although Mr Robertson contacted the victim over the months subsequent to the offending, the sexual offending itself occurred on a single night, although there were a number of events throughout the night.
[34] In relation to Misileki, the offending in that case was of greater intensity and intrusiveness than here, and the Court of Appeal described the starting point of
18 Faapuea v R, above n 6.
19 R v Misileki, above n 6.
20 At [20].
three-and-a-half years as “toward the top of the range”.21 The offending in Faapuea, by contrast, was similar to the offending in this case, although the age difference was smaller there, and a starting point of two years and nine months’ imprisonment was adopted and upheld by the Court of Appeal.22 I note too that other single instances of sexual connection or indecent act, even where there was more than one victim involved, have resulted in starting points of three years’ imprisonment or less, and I refer to a number of decisions, including R v Mokalei, R v Vautier and R v De Reeper.23
[35]Therefore, I conclude the three-year starting point is appropriate.
[36]However, several uplifts to this starting point are warranted.
[37] Turning to Mr Robertson’s previous convictions, I note I must avoid double counting. Whether the outcome of the sentencing had been different or not because the earlier offending was sentenced without the benefit of a s 27 report, nevertheless the prior convictions include serious sexual offending, so the history shows that Mr Robertson has still not addressed his underlying issues. Accordingly, I consider that a discrete uplift of four months’ imprisonment is appropriate to reflect the previous convictions.
[38] In addition, an uplift for the breach of the extended supervision order is warranted. It is particularly concerning the conduct underpinning the present charges was the fourth such breach, but I do accept the fact that some of the earlier breaches were not directly related to sexual matters. However, in this case I also bear in mind that Mr Robertson continued to contact the victim for months after the offending had occurred. He therefore showed a persistent disregard for the extended supervision order. In the circumstances, I agree with the Crown’s submissions that a further uplift of six months’ imprisonment is warranted.
[39] Taken altogether, this brings the adjusted starting point to three years and 10 months’ imprisonment.
21 At [20].
22 Faapuea v R, above n 6.
23 See for example R v Mokalei CA322/00, 30 November 2000; R v Vautier [2009] NZCA 435;
De Reeper v R [2012] NZCA 617; and R v LTI [2014] NZHC 1125.
[40] I now turn to the aggravating and mitigating factors that are personal to the defendant.
Aggravating and mitigating factors personal to the defendant
[41] At this second step, I adjust the starting point by reference to personal factors relevant to Mr Robertson.
Previous convictions
[42] In view of the fact I have already determined a four-month uplift is warranted on the basis of previous convictions, I do not consider anything further is appropriate in that regard in relation to Mr Robertson’s previous offences.
Guilty plea
[43] The Crown submits a 15 per cent discount for the guilty plea is warranted here. It says the plea did not come “particularly promptly” after the prospect of resolution was raised and suggests that Mr Robertson would have been worried about the prospect of receiving a 10-year sentence, given that the lead offending was, at that stage, a strike offence. Mr Bamford, however, submits that the full 25 per cent credit is warranted here for the open acknowledgement of responsibility of the part of Mr Robertson, and the fact the vulnerable victim was spared the stress and trauma of giving evidence about a sensitive and personal matter.
[44] I am satisfied that in this case there was an early plea and that an appropriate discount for that is 20 per cent to acknowledgement the guilty plea and the fact that it did save the victim having to go through a traumatic trial. Hopefully she can now move on from this matter.
[45] As Mr Bamford correctly points out, the most serious charges and the narrative was altered to a reasonable degree. However, I do not think that the plea was sufficiently early enough to award the full 25 per cent discount.
[46] Allied to this is the lack of remorse shown by Mr Robertson and in addition Mr Robertson has attempted to minimise his responsibility for the offending,
suggesting to the PAC report writer that he was “helpless” against the victim. That was plainly not the case. It will be imperative to any rehabilitation that Mr Robertson accepts his responsibility for this type of offending and does not attempt to diminish his role in it.
Personal circumstances
[47] I now turn to personal circumstances and cultural issues. I have before me a detailed s 27 report which Mr Bamford in particular addressed me on at some length.
[48] The s 27 report outlines a dysfunctional and abusive upbringing involving drugs and physical and psychological abuse from an early age. Given the trauma Mr Robertson experienced from a young age, Mr Bamford suggests it is “entirely unsurprising” that Mr Robertson has ended up here today.
[49] Mr Bamford submits that further specialised assessment as well as PTSD counselling and therapeutic interventions might provide more assistance to Mr Robertson and enable him to deal with his trauma and its effects.
[50] Mr Bamford did not seek a specific percentage discount in relation to the trauma and other personal circumstances but contended at the end of the day an overall two-year sentence of imprisonment with a special condition of release that Mr Robertson attend a psychological assessment, engage in treatment for trauma-related conditions and perhaps be supervised in his accommodation, would support the rehabilitation.
[51] Discounts the courts have awarded for personal circumstances in relation to s 27 report issues have ranged between about five per cent and 30 per cent at the upper end. As this Court has recently stated in Nathan v R, in sentencing a defendant for charges of sexual offending, “decisions of the High Court and Court of Appeal suggest that discounts for childhood trauma … will often sound in a discount of around 10 per cent.”24 The personal circumstances and cultural or background trauma can be taken into account in one discount in this case as they are difficult to separate — the
24 Nathan v R [2022] NZHC 2830 at [20]; and see the cases cited at n 28 of that case.
present lifestyle that Mr Robertson has been living and the risk he poses appear to be related to his upbringing.
[52] I agree with Mr Webber concerning the difficulty involved in drawing a clean line or a distinct line between the upbringing factors and the sexual offending. Nevertheless, when a child lacks any feeling of being able to control his own destiny and what happens to him, the later exercise in adulthood of power and control over those more vulnerable may often follow. However, we have no expert evidence on that in this case. I also note that sadly the traumatic childhood recounted in the s 27 report is not at the higher end or the more serious end of the scale when it comes to upbringings that are often before this Court. In these circumstances, I am of the view a 15 per cent discount is appropriate. I consider this takes into account the effect that Mr Robertson’s upbringing may have had, and the effect his childhood trauma may have had on the offending.
[53] I note on a positive note that Mr Robertson has been addressing the childhood trauma through mental health services. Mr Bamford says this may well be a key part of rehabilitation. I note Mr Robertson has also been engaged in a tikanga programme, recently being awarded a certificate of completion which was handed up to me today. Mr Bamford said, candidly, that a sentence of two years would enable Mr Robertson to be released without coming before the Parole Board. Mr Webber also explained that, and Mr Bamford said that Mr Robertson had been making enquiries about supported housing connected to Corrections facilities, as part of his problems leading him to the reoffending has been his inability to gain suitable accommodation. This is partly caused through the limitations as to where he can live, given his sexual offender status. Mr Webber pointed out, however, that given time served, Mr Robertson would be immediately released and have no time to make those supervision arrangements in any event.
[54] However, either way I do not consider that at the end of the day that is a factor I should consider in reaching my final determination.
Overall sentence
[55] In this case, I took a starting point of three years and 10 months’ imprisonment, and, as I indicated earlier, I am of the view that a 20 per cent discount is appropriate to recognise the defendant’s guilty plea as well as a 15 per cent discount for the personal circumstances. This results in an end sentence of two years and six months’ imprisonment.
[56] Despite the process I have stepped through to reach the final sentence, the final sentence is not a precise arithmetical calculation. The sentence must reflect the seriousness of the offending as well as the personal factors. Standing back and considering the overall sentence as a whole, I am of the view that the sentence of two years and six months’ imprisonment is proportionate to the gravity of the overall offending.
[57] I consider that further psychological assessments and treatment as suggested by Mr Bamford would be of great benefit to Mr Robertson and to the wider community as a protective factor. It is hoped that Mr Robertson you will continue to address the difficulties and problems you have in a way that will ensure that you will not be before the Court again.
Conclusion and result
[58] Mr Robertson, you are sentenced to a term of imprisonment of two years and six months.
[59] You will automatically be registered as a child sex offender on the Child Sex Offender Register.
Grice J
Solicitors:
O’Donoghue Webber, Nelson Tony Bamford Barrister, Nelson
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