R v Rutherford

[2019] NZHC 1628

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-096-482

[2019] NZHC 1628

THE QUEEN

v

GRAHAME JOHN RUTHERFORD

Hearing:	12 July 2019
Appearances:	P K Feltham for Crown L A Scott for Defendant
Date:	12 July 2019

SENTENCING OF COOKE J

[1]        The defendant, Mr Rutherford, appears for sentence having pleaded guilty to one charge of doing an indecent act on a child.1

Summary of offending

[2]        At 10.20 am on Thursday 7 February 2019 Mr Rutherford was in the toy aisle of The Warehouse retail outlet in Upper Hutt. The victim was looking at toys in the aisle, and her mother was in another aisle out of sight. Mr Rutherford approached the victim and spoke to her. The victim told him it was her 10th birthday and she was off school to buy presents with her mother.

1      Crimes Act 1961, s 132(3), maximum penalty 10 years’ imprisonment.

R v RUTHERFORD [2019] NZHC 1628 [12 July 2019]

[3]        Mr Rutherford bent down towards her and placed his arm around her waist and grabbed her on the bottom.   The victim ran off to find her mother in the store.      Mr Rutherford attempted to leave the store but was stopped by store staff.

[4]        The victim impact statement notes the victim has suffered from ongoing emotional harm. She feels a lack of confidence in social situations. She is less comfortable giving affection to male family members. She reports seeing the offender when closing her eyes, nightmares, and is unwilling to walk anywhere alone.

Offending history

[5]        Mr Rutherford is 63 years old. He has five previous convictions, all for indecent acts on children.

[6]        In 1993 he was convicted and sentenced to nine months’ imprisonment for two charges of indecent assault on a female under 12 and 16 respectively. The victim was known to him.

[7]        In 2015 he was sentenced to two years of community detention for indecent act on a child under 12. That charge also arose from an incident at The Warehouse, where Mr Rutherford approached the victim in the toy aisle and put his hand up her dress and touched her in the middle of her back and on her hip. That gave rise to his first strike pursuant to s 86B of the Sentencing Act 2002.

[8]        In 2016 Mr Rutherford was sentenced to eight months’ imprisonment for indecent assault on a female under 12 and breaching his extensive supervision order by having contact with a person under 16. The indecent assault charge on that occasion arose from an incident at a playground. Mr Rutherford encouraged the victim to climb up a slide, and as she did, he put his hand on her bottom and pushed her from behind, moving with her to keep his hand in conduct with her bottom. Those charges gave rise to his second strike pursuant to s 86C of the Sentencing Act.

Three strikes regime

[9]        This is Mr Rutherford’s third-strike offence. In those circumstances, s 86D(2) of the Sentencing Act requires me to impose a sentence of the maximum term of

imprisonment for the offence. In Mr Rutherford’s case, that is a sentence of ten years’ imprisonment. There is no discretion to allow any discount for the circumstances of the offending, or for Mr Rutherford’s personal circumstances.

[10]      Pursuant to s 86D(3), the court must also order that Mr Rutherford serve the sentence without parole unless the court is satisfied this result would be manifestly unjust given the circumstances of the offending and Mr Rutherford’s personal circumstances.

[11]      A full Court of the Court of Appeal in R v Harrison outlined the approach taken in determining whether it would be manifestly unjust to impose a sentence without parole.2 The aim of the manifestly unjust exception is intended to avoid grossly disproportionate sentence outcomes. The case for a finding of manifest injustice must be clear and convincing, but such cases need not be rare or exceptional. The sentence that would have been imposed but for the three strikes regime is relevant to the assessment, as well as the purposes and principles of sentencing under ss 7, 8 and 9 of the Sentencing Act. Overall, the determination is an intensely factual one.

Appropriate sentence but for s 86D

[12]      As indicated, in order to assess whether it would be manifestly unjust to impose a sentence without parole it is relevant to assess what the sentence would have been without the impact of the three-strikes regime.

Starting point

[13]      There is no tariff case for indecent assault as the facts giving rise to the charge vary to a large degree. The following cases provide guidance as to an appropriate starting point:

(a)R v Parker:3 Here the offender was the step-father of the 11-year-old victim. While the victim was in her bed, the offender reached up under the blanket, and moved his hand up her leg to her underpants. An

2      R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [108].

3      R v Parker [2007] NZCA 534.

ultimate sentence of two years’ imprisonment was upheld on appeal, but the starting point is not clearly identified in the decision.

(b)R v Kenny:4 Here a starting point of one year, seven months’ imprisonment was adopted. The victim was five years old. The offender was in a relationship with the victim’s mother. In the hall of the victim’s home, the offender bent down to pick up the victim, and in doing so, placed his hand over her vagina outside her underwear, but under her dress, moving his hand between her legs as he did so. He then moved his hand onto her waist and on her bottom and rubbed his hand back and forward.

(c)Tini v Police:5 a starting point of 10 months’ imprisonment upheld on appeal. The offender offered the 12-year-old victim a ride to school. While sitting opposite the victim in the car, the offender reached out and rubbed her right breast on the outside of her sweatshirt.

[14]      I consider the offending in this case is less serious than the offending in Parker and Kenny and most comparable to Tini. On the basis of Tini, I would have been satisfied a starting point of 12 months’ imprisonment would have been appropriate.

Adjustments to the starting point

[15]      Mr Rutherford has five previous convictions for sexual offending, most recently for indecent assault charges in 2015 and 2016 for which he received first and second strike warnings. This offending is notable in that it involves approaches to children not known to him in public places.

[16]      The pre-sentence report assesses Mr Rutherford at a high risk of re-offending. On the defence’s application a s 38  psychological  report  has  been  compiled  by Dr Lomas.6 She identifies Mr Rutherford at risk of re-offending if he is not adequately supervised and treated, and recommends he complete a treatment programme targeting high-risk offenders. Mr Rutherford has reoffended in February 2019, despite

4      R v Kenny [2013] NZHC 2787.

5      Tini v Police [2013] NZHC 2143.

6      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38.

completing a six- month treatment programme for sexually harmful behaviour in December 2018. He is unable to control his impulses and continues to act on his sexual interest even when already facing sanctions for his behaviour. I would have considered an uplift of six months appropriate to reflect Mr Rutherford’s criminal history, and the need to protect the community. I do not consider a discount for rehabilitative potential would have been appropriate in the circumstances.

[17]      The pre-sentence report records Mr Rutherford is regretful for his actions. When asked about the effects of his offending on the victim, he agreed she would have felt upset and devastated, and commented on the impact on her family. The report author notes concern, however, that Mr Rutherford has not able to consider the consequences and control his impulses in light of previously completed treatment. I do not consider a discount of remorse would have been available here.

[18]      Mr Rutherford would have been entitled to a full 25 per cent discount for early entry of guilty plea however.

[19]      This would have resulted in an end sentence of approximately 14 months’ imprisonment.

Does the manifestly unjust exception apply?

[20]      Section 86D(2) compels me to order the maximum period of imprisonment for indecent assault — that  is  10  years.  Were  it  not  for  the  three  strikes  regime, Mr Rutherford  would  have   been   sentenced   to   14   months’   imprisonment.   Mr Rutherford would also have been entitled to apply for a sentence of home detention and there is a chance he might not have served a sentence of imprisonment at all.7 While the three strikes regime inevitably contemplates disproportionate sentencing outcomes, the resulting sentence is plainly disproportionate in this case. I accordingly need to consider whether the lack of ability to be considered for parole under the 10 year sentence is manifestly unjust.

[21]      Mr Rutherford’s earlier offending in 1993 was serious, involving a serious breach of trust and continued pattern of abuse against the same victim.

7      Parole Act 2002, s 4; and Sentencing Act 2002, s 15A(1)(b).

Mr Rutherford’s more recent offending is still serious and genuinely distressing for the victims, but it does sit at the lower end of the range for indecent assault. Indecent assault has a large maximum sentence to recognise the offence may cover a wide range of behaviour. The offending is minor compared to offending generating the maximum period of imprisonment.8

[22]      The Crown argue Mr Rutherford’s personal circumstances are distinguishable from other cases where the manifestly unjust exception has been held to apply. In R v Fitzgerald, the offender received a third strike conviction for low level indecent assault when he grabbed a woman in public and attempted to kiss her.9 A struggle ensued. Mr Fitzgerald’s previous convictions giving rise to his first and second strike were for comparable conduct. The offending would not attract a sentence of imprisonment otherwise. Justice Simon France considered it would be manifestly unjust to impose a full sentence without the possibility of parole in circumstances where the offender in that case suffered from significant mental health issues.10

[23]      In R v Campbell, the 25-year-old offender received a third strike for indecent assault on a female Corrections officer.11 Mr Campbell had impulsively grabbed and squeezed the victim’s bottom. The first and second strikes arose from robbery and aggravated robbery convictions. Justice Toogood held that imposing the full seven year sentence without parole would be manifestly unjust where the act itself was at the lower end of the spectrum of indecent assaults, the defendant was young, expressed remorse and had a strong prospect of rehabilitation.

[24]      Those cases clearly have differences, and I must consider the present case on its own circumstances. The key consideration here is Mr Rutherford’s risk of reoffending. Dr Lomas has addressed the prospect of rehabilitation if Mr Rutherford undertakes treatment directed at high risk offenders whilst serving a sentence of imprisonment, and the need for a focused treatment plan. The report describes acute life stressors as a risk factor for Mr Rutherford but noted the possibility of self- management of his impulses if he was supported to maintain contact with treatment providers in the community. Mr Rutherford himself expresses clear motivation for

8      Compare R v Nichol [2018] NZHC 2739.

9      R v Fitzgerald [2018] NZHC 1015, per Simon France J.

10 At [22].

11     R v Campbell [2018] NZHC 2817.

treatment and responds positively to authority. It seems to me that the availability of treatment programmes is critical in the attempts to rehabilitate Mr Rutherford.

[25]      In considering whether a sentence of 10 years’ imprisonment without parole is manifestly unjust I take into account the normal sentencing considerations, including the objective of protecting the community from the risk of reoffending. The deterrence contemplated by the three-strikes regime has not prevented Mr Rutherford reoffending. As Ms Feltham for the Crown acknowledged, Mr Rutherford has not previously been given the opportunity to undertake an intensive child sex offender treatment programme. Even if he is permitted to be considered for parole, this will not occur for a further three years as a consequence of the three strikes regime. But it seems to me to be of central importance that focused attempts at rehabilitation occur sooner rather than later in Mr Rutherford’s case. Imposing a sentence of 10 years without eligibility for parole will significantly delay the commencement of rehabilitation programmes, which may create adverse consequences for the community in the longer term.

[26]      Having considered all the factors, I am satisfied this is a case justifying departure from the full effects of the three strikes regime. Requiring Mr Rutherford to serve a full sentence of ten years without the possibility of parole would be a manifestly unjust outcome.

Conclusion and sentence

[27]      Mr Rutherford would you please stand. On the charge of indecent act on a child you are sentenced to 10 years’ imprisonment. I do not order that this sentence be served without parole under s 86D(3) as I am satisfied that to do so would be manifestly unjust.

[28]      I note that the defendant’s particulars are entered on the Child Protection Register given he has been subject to a sentence of imprisonment.

Cooke J