R v Shepherd HC Palmerston North CRI 2009-454-13

[2010] NZHC 1577

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2009-454-13

THE QUEEN

v

ELVIS DOBSON SHEPHERD

Counsel:         C J Shannon for Crown

P G Mabey QC for Accused

Sentence:       15 September 2010

SENTENCING NOTES OF DOBSON J

[1]      Mr Shepherd, would you stand up, and I say at the very outset that you will have to bear with me in the number of considerations I am going through.  I hope you will understand from the exchanges I have had with counsel that there are an unusually large number of legal considerations that bear on the final outcome.

[2]      I have to sentence you this morning on the four convictions that I entered in accordance with the jury’s verdict at the end of your trial in this Court on 30 July this year.

[3]      Your offending involved two complainants, the first occurred in 1990.  And I

should say that in reviewing the circumstances of your offending, I am conscious

R V SHEPHERD HC PMN CRI-2009-454-13 [15 September 2010]

that you disputed the version of events given by both complainants, and you still deny responsibility for the criminal conduct for which you have been found guilty. But you should understand that I am obliged to sentence you in accordance with the convictions entered, and in the circumstances of this trial that means accepting at least the essence of the evidence given by each of the complainants as to what occurred in relation to your offending against them.

[4]      So, just reviewing the circumstances of the 1990 conviction, I will refer to the victim there as simply G.   He was a 16 year old who had been a student at the college where you worked as a master, but he had left school at the relevant time. He had returned to attend a school gala, and after the gala a disco at which he drank too much alcohol and also smoked cannabis.  At a certain point in the evening, you volunteered to provide him somewhere to sleep for the night.  After taking him with you when you delivered others to points away from the school, you returned to the school and spent the night with him on a mattress within the administration block of the school.

[5]      You helped G undress.   After he had dozed off, he was awoken by having you performing oral sex on him.  That conduct has resulted in your conviction for sexual violation by oral sexual connection.  At the time, the maximum penalty for that was 14 years’ imprisonment.  In the same incident, you put G’s hand on your penis and appeared to have persisted with that, notwithstanding his attempts to pull his hand away, and that constitutes an indecent assault for which on conviction the maximum penalty is seven years’ imprisonment.

[6]      Then in 1994, you had recently returned to the same school, this time as a dormitory master, although your daytime occupation was as a teacher at another school.  This time, your victim was a 17 year old seventh former at the school whom I will call simply M.  He sought your help with Te Reo Mäori and one evening came to your room within the boarding establishment at the school.  You urged him to let you massage his shoulders in an attempt to relax him, leading to his lying down on your bed.  At a relatively early point in your handling of him, he objected that what was happening was not right.   Also at an early stage, his evidence was that you waved a small bottle emitting fumes under his nose, which had an effect making his

body feel heavy and relaxing what might otherwise have been his stronger resistance to what then occurred.  You touched M under his pants and around his genitalia, and then put your penis in M’s mouth and had him perform oral sex on you, resulting in your  ejaculating  in  his  mouth.    It  is  that  conduct  which  has  resulted  in  your conviction for sexual violation by oral sexual connection.  By 1994, the maximum penalty for that offence had increased from 14 to 20 years’ imprisonment.   Your touching of him constituted an indecent assault and again the maximum sentence for that conviction is also seven years’ imprisonment.

[7]      In sentencing you, there are two main sources of guidance from the law perspective that I have to take into account.  The first are the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002 (the Act), and the second are Court decisions considering the appropriate sentence in cases that have relevant similarities with your offending.

[8]      As to the purposes and principles set out in the Act, under s 7 I have to hold you accountable for the harm you have done to your victims, and to the community by your offending; to promote in you a sense of responsibility for, and hopefully an acknowledgement of, the harm that you have caused.   I have to provide for the interests of the victims, and it is my obligation to denounce your conduct so as to deter you and others from committing similar offences.  And also, of course, I must have regard to your rehabilitation and re-integration into society.

[9]      The principles require me to take into account the gravity of your offending and the extent of your culpability, as well as the seriousness of the type of offence in comparison with other types of offending in light of the maximum penalties prescribed by the law.  That process is complicated because your offending was 20 and 16 years ago.

[10]     There has been a recent Court of Appeal decision, R v AM, which provides guidelines for sentencing for sexual offending.[1]  That decision stipulates that it is to apply to all sentencing after 31 March this year.[2]    However, notwithstanding what

Mr Shannon has said urging me to simply apply the guidelines in AM, I do not treat the directions from that case as altering the principle that for offending that occurred a long time before the sentencing, the offender is to be sentenced by reference to sentences comparable at the time of the offending, rather than when you are being sentenced.[3]    That means that if there has been a change in the tariff for the type of offending involved, then you are sentenced by reference to the going rate when you offended.

[1] R v AM [2010] 2 NZLR 750 (CA).

[2] See [125].

[3] See R v R CA 244/04, 2 November 2004 at [22]; endorsed by the Court of Appeal in R v B

[2007] NZCA 292 at [34].

[11]     I accept the Crown position that because AM deals with offences where the relevant maximum penalty is 20 years’ imprisonment, it cannot provide guidance in respect of your 1990 offending, when the maximum was lower.

[12]     Because the maximum penalty for sexual violation by oral connection had increased to 20 years’ imprisonment by 1994, I treat the conviction from that year in respect of the victim M as the most serious of your four convictions, and therefore consider an appropriate sentence for that offending first.  What I propose to do here is to consider the guidelines provided in AM and then, as a check on that, to compare the outcome with comparable sentences from the time of your offending to enable reconsideration in the event that there appears to have been a change in the level of

sentencing between 1994 on the one hand, and 2010 on the other.[4]

[4] In doing so, I respectfully adopt the same approach as used by Andrews J in R v Boyd HC Auckland CRI-2008-019-10238, 6 July 2010 at [34].

[13]     For the Crown, Mr Shannon has submitted that the 1994 offending falls near the higher end of rape band 1, or possibly the lower end of rape band 2, of four bands now guiding sentencing Judges from the Court of Appeal’s decision in AM.  That decision equates penile penetration of the mouth with other forms of penile penetration, so that sentencing for conduct like yours is to be equated with rape on the AM guidelines.   That is a change in sentencing practice when previously rape

was likely to be treated more seriously than oral sexual connection.[5]  In AM, the first

band being at the lower end of the spectrum attracted a starting point of between six and eight years’ imprisonment.   Band 2, which is more serious reflecting factors

such as the level of violence or pre-meditation, attracts starting points between seven and 13 years.   Applying those guidelines, the Crown suggests a starting point of between seven and eight years for the more serious of your convictions involving M.

[5] R v AM at [76].

[14]     Mr Mabey has submitted that the starting point should be seven years, at most.

[15]     In AM, the Court of Appeal identified a range of factors that may influence the view a sentencing Court takes of the culpability of an offender.  Not all of them will  apply  in  all  cases,  and  individual  circumstances  mean  that  the  weight  a sentencing Judge gives to any particular consideration will also vary.  The absence of any particular factor does not necessarily mean that the offending is to be treated as less serious than if that factor was present.

[16]     Here,  the  most  important  of  the  relevant  factors  are  the  breach  of  trust involved, the vulnerability of the victim, and the degree of violation.  Mr Shepherd, there are few situations that are more dependent on trust and integrity than the context of a boarding school dormitory.  Students trust implicitly that they will be cared  for  without  manipulation  or  any  degree  of  violation.    Parents  send  their children to boarding schools critically dependent on the integrity of the staff running a boarding establishment, and the wider school community depends fundamentally on the integrity of all staff able to have access to boys and girls up to the time when they are indeed young men and women, not to be exploited.  Any breach of that trust has to be treated most seriously, and this was a gross breach of that sort of trust.

[17]     Vulnerability of M as your victim is perhaps the other side of the same coin. Mention was made at trial that he was physically larger than you and, at 17, able to deal with you virtually on terms of equality.  But I am sorry, I do not accept that. You at, if my maths is right, then 32, were effectively a generation older in terms of age, experience and ability to influence others.  He was in a boarding establishment and vulnerable to control by all those whom the school system vested with authority to direct his conduct.  Having considered M’s victim impact statement, it is apparent that the breach of that trust, and his vulnerability at the time, have contributed in a very real way to the long-term torment that your offending has caused him, and I

fully accept that this offending has ruined that man’s life.   I take that view even although Mr Mabey has referred to a second occurrence of sexual conduct between you some little time later.

[18]     In terms of the extent of violation, once penetration by a penis of someone’s mouth is to be equated with penile penetration of a vagina or anus, then the degree of violation involved here has also to be marked as serious, given that it persisted until you ejaculated.

[19]     Accordingly, on the basis of the guidance in AM, I treat the more serious offending against M as attracting a starting point of seven years’ imprisonment.

[20]     Now, would that starting point have been different if I were sentencing you within, say, a year of it occurring in 1994?

[21]     A useful analogy from that period so far as the factual circumstances are concerned  is  a  Court  of  Appeal  decision  in  R  v  Donaldson.[6]      That  related  to offending at the end of 1994 and was a Solicitor-General’s appeal from a sentence of

18 months’ imprisonment for sexual violation of an 18 year old.  Being brought by the Solicitor-General, it means that it was the Crown considering 18 months was inadequate.   The offender had engaged in sexual activity with a youth while the youth was either comatose or unconscious.   The activity was videotaped by the offender and showed the offender having sexual connection between his own mouth and the penis of the youth.   He also masturbated the youth and placed his penis against the youth’s mouth.   The offender had befriended the victim and won his friendship and trust.

[6] R v Donaldson (1997) 1 NZ CrimC 640.

[22]     The decision in Donaldson is less helpful in that it does not identify a starting point, as has subsequently become the common practice on sentencing before addressing any aggravating or mitigating factors particular to the offender.  In that case,  the  respondent  had  pleaded  guilty, showed  remorse,  voluntarily undertook counselling and had no previous convictions.   The Court of Appeal agreed with a submission on behalf of the Crown that a sentence of between four and five years

would have been “unassailable on appeal”[7] and that the appropriate sentence was in a range between three to five years.  Working backwards from that end point to take account of the discounts appropriate for the numerous mitigating factors, grossing up a mid point in the range indicated by the Court of Appeal of, say, four years, to add back in a discount that I anticipate would have been between 33 and 40 per cent would get to a starting point, for what I treat as comparable 1994 offending, in a range between six years three months and six years seven months’ imprisonment. There can be no science in this comparison.  However, it suggests that sentences for like offending have increased somewhat since 1994.   I am also mindful that AM acknowledges a change in that it now equates oral penetration with rape and that change is also likely to result in an appropriate sentence today for offending such as yours against M at a somewhat higher level than it would have attracted in 1994.

[7] See 651.

[23]     Having identified that difference in starting point, I propose to modify the approach that would otherwise apply under AM by acknowledging that the age of the offending makes it appropriate to reduce the starting point from seven to six and a half years.

[24]     Next, I consider the conviction for your 1990 sexual violation by oral sexual connection of G, which  is four  years older and committed when the maximum penalty was 14 years’ imprisonment.  As the Crown acknowledges, the AM Court of Appeal decision cannot provide guidance here because there is a lower maximum penalty than that addressed in the guidelines provided in AM.  I therefore go directly to cases from around 1990 that provide illustrations of the sentence that would have applied, had  you been  dealt with at that time.   The Crown’s submissions have

referred to three cases.[8]  All of them involved sexual violation by males of females.

[8] R  v  Talataina (1991) 7  CRNZ 33,  R  v  Latu  CA439/92, 14 June  1993 and  R  v  Barnden

CA130/90, 15 April 1991.

[25]     In Talataina, the first of the cases the Crown referred to, the offender invited the victim into his car, struck her, sucked her breasts and put his finger in her vagina. The sentencing Judge adopted a starting point of between three and three and a half

years and a final sentence of two and a half years was upheld by the Court of Appeal. In Latu, the offender went to the victim’s apartment, removed her pants and digitally penetrated her.  The sentence of four years was upheld with the offender having been found guilty at trial.  Barnden, the third of the cases, involved the defendant twice putting his fingers into the victim’s vagina while she had passed out drunk.  She had no recollection of the events and the offender was entirely co-operative, including entering an early guilty plea.  The sentence of three and a half years was reduced by the Court of Appeal to two and a half years, it seems largely on account of the significant mitigating factors.

[26]     The elements of breach of trust that are also present in your offending against G, plus his vulnerability because he was so intoxicated, make this conviction somewhat more serious, in my view, than all three of the cases the Crown refers to. The Crown suggests a starting point of three and a half to four years.   Mr Mabey urges no more than three and a half years, and I agree that that is the appropriate starting point for the major 1990 conviction.

[27]     Next, I will set a starting point for the two convictions for indecent assault. They are substantially less serious than the major conviction in each of the 1990 and

1994  offending.    Relative  to  the  maximum  of  seven  years’  imprisonment,  and bearing in mind they are being dealt with together with far more serious convictions, I consider  they would  be appropriately dealt  with  by a  sentence of  12 months’ imprisonment on each of those convictions.

[28]     Having fixed the starting points on all four of the convictions, I am next going to consider whether sentences should be imposed cumulatively (which means you would serve one after the other) or concurrently (which means that you would one global sentence and serve it all at the same time).

[29]     The Crown has submitted you should serve cumulative sentences for the

1990 and 1994 offending, and Mr Mabey accepts that is appropriate.

[30]     This consideration is governed by ss 83 to 85 of the Sentencing Act.  Those sections suggest I should have regard to the time at which the various offending occurred, the overall nature of the offending and any other relationship between the offences that appear to be relevant.

[31]     Here, the two bouts of offending are of the same type, they occurred at the same location and in the same context of a position of authority being abused by you.   However, they are four years apart, and I do not consider the similarities to render it appropriate to impose a concurrent sentence on the two most serious convictions.  As noted by the authors of Hall’s Sentencing, where there are multiple victims it is important that each victim should see that the offending against them has received the appropriate separate penalty.  And that observation is subject to the

principles in ss 83 to 85 I have referred to.[9]

[9] Geoffrey G Hall Hall’s Sentencing (looseleaf ed, LexisNexis) at [SA84.5].

[32]     I therefore propose to sentence you to cumulative sentences on the two major convictions, but to sentences that will be served concurrently with the longer period for the lesser conviction in relation to each of the 1990, and also the 1994 offending. On this approach, I arrive at a cumulative starting point of six and a half years for the

1994 offending against M and then three and a half years for the 1990 offending against G, making a total sentence of 10 years.

[33]     When imposing cumulative sentences, I have to have regard to the so-called “totality principle” under s 85 of the Act.  That requires me to stand back and assess whether the total sentences would result in a period of imprisonment that is wholly out of proportion to the gravity of your overall offending.   That exercise is not a precise one and is complicated somewhat by the need to sentence you in 2010 on convictions as would have been appropriate in 1990, or more likely in 1994.  I have already taken into account that between 1994 and 2010 the approach to the appropriate sentence has hardened to a degree.   Putting myself in the shoes of a Judge sentencing in 1994 for what would then be repeat offending, and having regard to the cumulative impact of the 1990 convictions, I am left with a concern that

a 10 year starting point would be out of proportion, by a small margin, with the gravity of your overall offending as it would have been perceived at that time.   I consider the total cumulative starting point appropriate to the offending, having regard to its age, would be nine years and three months’ imprisonment.

[34]     I next consider what factors personal to you I should have regard to as either aggravating factors justifying any increase, or mitigating factors that warrant a reduction  in the  total  sentence  from  that  starting point  of nine  years  and  three months.

[35]   Of concern, as you have heard this morning, is your refusal to accept responsibility for your offending.   The pre-sentence report refers to that.   I accept what Mr Mabey has said that I cannot penalise you for that as an aggravating factor, and I accept also that it is a point more likely to be relevant for you from now on than this morning.

[36]     In your favour is the apparently outstanding quality of the work that you have done  in  promoting  Te  Reo,  Mäori  culture  and  Mäori  education.    I have  heard glowing praise  for  your  work  from  Professor  Black  and  I have read  all  of  the

26 testimonials that you have assembled.   I should say I acknowledge the trouble taken by all those supporters and I hope that their on-going support provides strength for you in your re-integration into society as Professor Black anticipated.

[37]     With the concurrence of counsel I have also considered a further testimonial that was sent directly to the Court by Mr Turuwhenua of Tuhoe and this morning I was handed five additional ones, one of which was a repeat of what was in the volume of testimonials, but I also had the opportunity to read all of them and I have considered all the very good things that are said about you in those.   I also recall from some of the witnesses at your trial that aspects of your work done at the schools was indeed exemplary.

[38]     To the extent that your supporters plead for some alternative to prison, then you must, by now, appreciate that that is impossible.  To the extent that they plead

for some vehicle by which you could continue to make the contributions that you have  so  far,  of  course  I  support  that,  but  effecting  it  is  out  of  my  hands, Mr Shepherd.

[39]     Mr Mabey’s written submissions included a suggestion that I should sentence you as a first offender.  That suggestion was opposed by the Crown for reasons it is now unnecessary for me to go into.  The reality is that you are being sentenced for two instances of very serious sexual offending against young men that occurred four years apart.   Whenever the matter was dealt with, that pattern of offending would not,  in  my  view,  entitle  you  to  material  credit  as  a  “first  offender”  in  the conventional sense.   The real strength of Mr Mabey’s argument, and I think he acknowledged this, on the mitigating factors available to you is that, apart from your offending, you have led a selfless life of service to the Mäori community and to Mäori education in particular.   That entitles you to material credit.   The Crown would urge me not to get carried away about that, and they make the point that many of your supporters while dwelling on the good parts, perhaps understandably do not acknowledge the harm that has been done to your victims.  And my responsibility in sentencing is to keep my feet on the ground and have to take that into the balance as well.

[40]     Mr Mabey has invited me to adopt the approach of the sentencing in R v Field[10] where a reduction of 20 per cent was considered for a range of mitigating factors that appear to have been dominated by Mr Field’s public service.

[10] R v Field HC Auckland CRI-2007-092-18132, 6 October 2009.

[41]     I am certainly satisfied that you are entitled to credit for your many years of good work.  Each case must be considered in its own context.  Justice Hansen, with respect, was explicit in acknowledging that a 20 per cent discount was generous. Given the sequence of the earlier considerations I have gone through in your sentencing, and having given it a great deal of careful consideration, I am unable to give you more than a 10 per cent discount from the cumulative starting point of nine years and three months.  That discount would be 11 months, although my maths is

never particularly accurate, and means that I would arrive at a final cumulative sentence of eight years and four months.

[42]     Mr Shepherd, there are considerably more steps in the reasoning getting me to this conclusion than would often be necessary in a sentencing exercise.   Other Judges might undertake the considerations in a different sequence, and obviously give different weighting to some of the individual factors that have influenced me. For instance, other Judges might not be prepared to recognise a discount for the time differential.  And on the totality principle, we are given relatively little guidance and some might not have given you any credit on that.  Others, having taken that attitude, may have adopted Justice Hansen’s 20 per cent on the discount.

[43]     I have given you the figures involved in my thinking at each stage and have used percentages at some points.   That is, please, not to be seen in any way as reducing  sentencing  to  a  matter  of  mathematics.    I  have  given  the  appropriate outcome very considerable thought and tested the sequence of considerations I have now relied on by going through a range of alternatives.  In the end, what matters for you, what matters for the victims and what matters for the community are the end sentences, and I am ultimately satisfied on the appropriateness of the total sentence and the breakdown that I will now have to provide between the 1990 and the 1994 convictions.

[44]     I accordingly sentence you on the 1990 conviction for sexual violation by oral connection to two years and 11 months’ imprisonment, with a concurrent sentence of one year on the 1990 conviction for indecent assault.  Cumulative upon that longer sentence, for the 1994 conviction for sexual violation by oral connection I sentence you to a term of five years and five months.   A sentence of one year’s imprisonment on the 1994 indecent assault conviction is to be served concurrently with the longer sentence for the more serious 1994 conviction.  The difference in the lengths of the two longer sentences is contributed to by the increase in the maximum penalty between the two years, and the fact that the 1994 offending is worse because it followed earlier offending.

[45]     The  Crown  has  requested  that  a  minimum  period  of  imprisonment  be imposed  on  you.    Predictably,  Mr Mabey opposed  that  as  unnecessary  on  your behalf.  For a man of your age and your occupational contribution to society thus far, you are now sentenced to what is a lengthy period of imprisonment.  I take the view clearly that that achieves the principles of sentencing to which I must adhere, and I do not consider that imposition of a minimum term is warranted.

[46]     Mr Shepherd, I fully expect that you will be an exemplary prisoner and I take on board what Mr Mabey has said about approaches already made to you whilst you were on remand, and I urge you to pursue those towards a constructive re-integration into society.

[47]     Crown counsel have constructively suggested that before parting with the case, I ought, in one place, to confirm the full extent of permanent suppression orders  that  have  applied  at  the  various  stages  to  proceedings  involving  you.    I propose setting those out in an Appendix to the written form of these sentencing notes (*) that I will have produced as soon as possible, and if the media are in any doubt in anticipation of those being available, I would urge you to be in touch with Mr Shannon because I am simply replicating the form that he provided with his sentencing submissions.

[48]     So far as I am concerned, Mr Shepherd, that’s the end of the sentencing.  You may stand down.  I understand you may return to Court after I have retired.

Dobson J

Solicitors:

Crown Solicitor, Palmerston North

* The Appendix is not to be published with these sentencing notes, but is to be made available by the Registry to any interested media with genuine concerns as to the scope of permanent suppression orders.