R v Shanaghan HC Auckland Cri-2004-092-8648

[2005] NZHC 1312

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S.139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2004-092-008648

THE QUEEN

v

ANDREW PAUL SHANAGHAN

Charge:Sexual intercourse with female 12-16 years (representative) Indecent assault with female 12-16 years

Anal intercourse with female 12-16 years

Plea:               Guilty

Appearances:  Simon Mount for Crown

Mark Edgar for Prisoner

Sentenced:     25 February 2005

15 months imprisonment on each charge (terms concurrent); leave to apply for home detention

SENTENCING NOTES OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown Mark Edgar (Auckland) for Prisoner

R V SHANAGHAN HC AK CRI-2004-092-008648 [25 February 2005]

Introduction

[1]    Mr Shanaghan, you appear for sentence today having pleaded guilty to one representative charge of unlawful sexual intercourse, one charge of doing an indecent act with a girl aged between 12 and 16 years, and one charge of anal intercourse with a girl under 16 years. All of those charges carry eligibility to a maximum term of imprisonment of seven years.

[2]    Before I deal with the circumstances of your offending, I wish to express my appreciation to both Mr Mount and Mr Edgar for their balanced submissions, and to acknowledge the presence in Court today of the mother of the complainant and her two supporters.

[3]    I shall deal first with the facts and then with the starting point for your sentence.

Facts

[4]    Despite the statements made by you to the probation officer, Mr Edgar has responsibly confirmed that the summary of facts presented by the prosecution is undisputed. In essence, you struck up a relationship in 2003 with a 13 year old girl. You were then aged 34 or 35 years. I accept that the girl initiated the first contact through an online chat room. I also accept that she was for a number of reasons particularly vulnerable in an emotional sense. It is clear to me that she saw you as a source of comfort and friendship but that the relationship evolved into a sexual one.

[5]    You did not meet until some months after you first made contact through the chat room. You visited her at her home in South Auckland on a number of  occasions. When you met on the fourth time, which was just after her 14^th birthday, the two of you went to an area of bush in Papakura. It is adverse to you that she had consumed wine which you had purchased. You then had sexual intercourse more than once. Over the following four months you had sexual intercourse on a regular basis. The girl consented throughout. Also you engaged in other forms of sexual contact and one at least of anal intercourse.

[6]    During this time, Mr Shanaghan, you learned of the victim’s age. Nevertheless, you elected to continue the relationship. In objective terms that was an aggravating factor, even though I understand that by then the two of you had formed a distinct emotional bond. I accept Mr Edgar’s submission that the relationship was not merely carnal or predatory but that it operated at a deeper level.

[7]    You should know that teenage girls are very vulnerable. You should also know that the vulnerability is aggravated where a child strikes up a relationship with a grown man. The degree of dependence and trust is  compounded.  The  law prohibits sexual relations with a girl under 16 for the very reason that it acknowledges that young women require protection. While you may  not  have known her true age at the beginning, you could have inquired or found out. But in any event, as you acknowledge, you knew that fact during the course of your contact.

Starting Point

[8]    I turn now to the starting point for your sentence. The starting point is the appropriate term of imprisonment based purely upon the circumstances of the offending before I take into account any aggravating, or worsening, circumstances in your own background or any mitigating, or favourable, circumstances (R v Terewi [1999] 3 NZLR 62 (CA), para 12).

[9]    You are aware that the sentence I impose must reflect society’s denunciation for what you have done; it must make you accountable for your crime; and it must also deter you and others from repeating this type of activity. Also, on the other side of the ledger, it must be designed to assist in your rehabilitation and reintegration  into the community.

[10]   I have already outlined what are a number of aggravating features about your crimes, principally of course the age disparity and the victim’s vulnerability. I also take into account the effect of the impact reports which Mr Mount has submitted to me today.  One is from the girl; the other is from her mother.  They reveal a degree  of dysfunctionality in the relationship between the two, for which you are not entirely responsible. But the essence of the girl’s complaint is that her mother

betrayed her trust in making a complaint to the police. I do not accept that; nor does Mr Edgar. She acted entirely properly. I have no  doubt that your relationship with the victim has caused a serious breach in her relationship with her mother and stepfather and other members of her family. As I say, you are not entirely to blame, or even in my view the principal cause of it.  Nevertheless, you are the catalyst, and  it is a matter of distress to read of the differences that have arisen as a result of the victim’s mother’s discovery of this relationship. I can only express my hope that the schism between mother and daughter is healed in time.

[11]   Both counsel have cited to me a number of authorities from the High Court and Court of Appeal. In your favour relating to the circumstances of the offending is that there was a degree of, as I say, initiation from the complainant and her consent throughout. I must, of course, note that a 14 year old girl’s ability to consent to events of this nature is limited. She was not aware of the full consequences of her conduct.

[12]   However, I am spared from having to analyse the authorities because both  Mr Mount and Mr Edgar appear to be in accord about a starting point. Having read those cases, I am satisfied that the appropriate starting point for your sentence on all three charges, taking into account the totality of your offending, is two years imprisonment.

Personal Circumstances

[13]   I come now to your personal circumstances. Fortunately there is nothing to aggravate that starting point. To the contrary, all the factors go the other way in your favour.

[14]   First and foremost, Mr Shanaghan, I acknowledge your pleas of guilty. I do accept that it is a reflection of your remorse and a recognition of your responsibility for your offending. It also has saved your victim and her family, particularly her mother, the trauma of a trial. While Mr Mount has properly drawn attention to the fact that some aspects of the probation report show a lack of insight into your

offending, I am comforted by the probation officer’s conclusion that your risk of re- offending in this area is low.

[15]   Second, there are your personal circumstances. You have a number of previous convictions, but apart from some minor cannabis offences in the 1980s they are principally of a traffic nature. They reflect your abuse of alcohol and your inability to tolerate it. To your great credit, you do not drive in recognition of the dangers it presents to you.

[16]   You are otherwise of good character. You have made the best of the opportunities available to you. I accept that you have had a close and loving relationship with your adoptive mother and that you have developed your employment chances to the fullest possible.

[17]   I must impose a term of imprisonment. However, taking all of those factors into account, I am prepared to reduce the starting point from two years to 15 months imprisonment. You are sentenced to a term of 15 months imprisonment on each of the three charges. All those terms are to be served concurrently; that is, together, not cumulatively or additional to each other. In fixing that figure I have also been influenced, I should record, by your victim’s statement, which I accept is genuine, that she does not want you to go to prison. My knowledge of human relationships tells me that the longer the term of imprisonment I impose upon you, the greater would be her degree of resentment and bitterness towards her family. I am anxious  to avoid that.

Home Detention

[18]   Mr Edgar has applied for an order granting you leave to seek home detention. I grant that application. For what it is worth, I record for the benefit of the Parole Board my conclusion, based upon the probation report and Mr Edgar’s submissions, that you are a suitable candidate. I intend to grant you bail today for a term of two months or until the Parole Board makes a decision on your application for leave to apply, whichever occurs the sooner.

[19]   Accordingly, you are bailed to  appear  again  in  this  Court  at  9 a.m.  on  26 April 2005. In the event that you are granted home detention you will be, of course, excused from appearing that day. In the event that your application is declined, you will have to surrender yourself to the custody of the authorities.

[20]   Mr Shanaghan, you have committed serious offences. Your offending has aggravated quite seriously natural differences that might arise between your victim and her family during the growing process. Nevertheless, I trust that you take the opportunity to reflect upon what you have done and to ensure that this never happens again. Please stand down.

Rhys Harrison J