R v Shine

[2012] NZHC 2481

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

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-055-3357 [2012] NZHC 2481

THE QUEEN

v

IAN WILLIAM SHINE

Hearing:         25 September 2012

Counsel:         C Morris for Crown

P Borich for Mr Shine

Judgment:      25 September 2012

SENTENCE OF WINKELMANN J

Crown Solicitor, Auckland

Rice Craig, Papakura

R V SHINE HC AK CRI-2011-055-3357 [25 September 2012]

[1]      Mr Shine, you appear for sentencing on 24 counts of sexual offending and one count of theft. At a call-over on 1 August 2012 you pleaded guilty to 25 charges as follows:

(a)       Two  counts  of  sexual  connection  with  a  male  under  12  (Section

132(1) of the Crimes Act 1961).  That offending carries a maximum sentence of 14 years imprisonment.

(b)Nine counts of sexual connection with a male between the ages of 12 and 16.   (Section 134(1) of the Crimes Act 1961).   That offending carries a maximum sentence of 10 years imprisonment.

(c)       One count of doing an indecent act with a male aged between 12 and

16.    (Section 140(1)(b) of the Crimes Act 1961).    That offending carries a maximum sentence of seven years imprisonment.

(d)      12 counts of contract for sex with a male under 18.  (Sections 22 &

23(1) of the Prostitution Reform Act 2003).  That offending carries a maximum sentence of seven years imprisonment.

(e)       One count of theft over $1000.  (Section 219 of the Crimes Act 1961).

That   offending   carries    a   maximum   sentence   of   seven    years imprisonment.

[2]      The caption summary to which you have pleaded guilty describes offending which involved the systematic grooming of young men from a Pacifica background. Your victims were aged between 11-18 years and over a period of many years you ingratiated yourself into the lives of these young men and boys, and on occasions into the lives of their families, by providing money, groceries and other gifts.  You encouraged your victims to recruit other victims for you.   You paid these boys to allow you to perform oral sex on them, while you masturbated.  You showed them pornographic images played on your mobile phone while you did this.  On occasion,

you encouraged the young men to perform oral sex on you.   Two of your victims performed oral sex on you.

[3]      The  amounts  you  paid  the  young  boys  were  anywhere  between  $2  and hundreds of dollars.  Younger males were given smaller amounts so that their caregivers would not become suspicious where they were getting the money from. This offending continued over a period from 2003 until 2011.

[4]      In sentencing you I refer to your victims describing them as one, two, three and so on.  I do this because your victims are entitled to suppression of their names. Adopting false names would be difficult because of the sheer number of victims. There were 13 of them.

[5]      Your offending against victim one commenced in 2003 when he was 15 years of age. You approached him when he was walking home from school, offering him a part time job, which he declined.  On a later occasion you picked him up from school in your truck, took him into a park nearby the school and performed oral sex on him. You  continued  to  offend  against  victim  one in  this  way,  taking  him  to  various locations for this purpose.  There is one representative count (count 12) which covers the many instances of offending against victim one before he turned 16.  You have pleaded guilty to two counts under the Prostitution Reform Act which relate to you paying him to allow you to perform oral sex on him after that date and during the period when he was under the age of 18

[6]      Your offending against victim two occurred between April 2009 and April

2011 when he was 16 and 17.   As a prequel to the offending you befriended his family, supplying them with groceries and cash.  Between April 2009 and April 2011 you would regularly call the him or arrive at his home uninvited.  You would drive him to various locations including secluded parks, an abandoned house or a motel. On some occasions you would remain in your personal vehicle or work truck.  Your offending against victim two involved fondling his penis, performing oral sex on him, including on occasions when other victims were present in other rooms in your house where some of this offending took place.  Following each liaison you would pay victim two $60 to $80 in cash.  You also encouraged him to recruit other boys to

engage with you in sexual activity for payment.  In respect of victim two you have pleaded to two representative counts of entering into a contract for sex with a male under the age of 18.

[7]      Your offending against victims three, eight, nine and 11 follows a broadly similar pattern, although it is not suggested that you ingratiated yourself with these your men’s families.  You have pleaded guilty to paying these young men, all under

18, for sexual services.

[8]      Victim four was introduced to you by victims two and three.  This offending occurred when victim four was aged between 13 and 15 years of age.  You would drive him to an abandoned house, secluded parks, your home or in your work truck. On almost every occasion you asked victim four to perform oral sex on you but he refused.  On some occasions victim four was taken back to your home along with other victims.  Each person was asked by you to go into a particular bedroom and the young person then waited for you to visit that room.  You pleaded guilty to three representative charges in respect of victim four, the particulars of which are performing oral sex on a person under the age of 16.  This offending occurred during the period March 2009 – November 2011.

[9]      Your offending against victim five occurred was when he was 15 years old over about a six month period.  You would collect him from his home and take him to various locations where you paid him for allowing you to perform oral sex on him.  On regular occasions after you performed oral sex on him, you would tell him to perform oral sex on you, which he did.  After each sexual act you would pay him between $20 to $40.  You pleaded guilty to one representative charge in respect of that offending.

[10]     You offended against victim six when he was 13 years old. You have pleaded guilty to two counts of sexual connection with him involving oral sex.  You took him to various locations, performing oral sex on him while playing him pornographic images on your phone. You paid him money.

[11]     You met the seventh victim when he was 14 years old.  You pleaded guilty to one charge of sexual offending against him.  You drove him to an abandoned house, along with other of the victims and performed oral sex on him, paying him $20.

[12]     You met victim 10 when he was 15 years old.  He is a brother of one of the other victims.  You told him to come to your home when your wife was not expected to be at home and paid him to allow you to perform oral sex on him. You told him to bring other  friends  who  wanted  cash  in  exchange  for sexual  acts.    On  another occasion you drove him to a bush area and again performed oral sex on him.  You have pleaded guilty to a representative charge of sexual connection with a person under the age of 16 years.

[13]     Victim 12 was 15 years old at the time of the offending.  You picked him up from school with some of the other victims.   You took him back to your home, performed oral sex on him and paid him $30 before then returning him to school. You have pleaded guilty to one count of sexual connection with a person under 16 in respect of this victim.

[14]     The 13th  victim of your offending (involving the most serious offending by you) was 11 years old at the time of the offending and was a cousin of two of the other victims.  You have pleaded guilty to two counts of sexual connection with a child under 12 in respect of your offending against victim 13.  The first count relates to one act of performing oral sex on him.   The second count is a representative charge and relates to both performing oral sex upon him, and also to his performing oral sex on you.

[15]     On the first occasion of offending you picked him up from his home and drove him to your own home address where you performed oral sex upon him.  The second count is a representative count and relates to a number of occasions on which you placed your penis inside this victim’s mouth and made him lick your penis. After each sexual act you paid him between $2 and $5 in cash.   That offending occurred in the victim’s own home.

[16]     The last matter that you have pleaded guilty to relates to the theft of batteries from your employer, with a value of approximately $9,000.  I have assumed that this theft was connected with your offending as you would have required a significant amount of money to continue to pay the victims in the manner that you did.

[17]     I have received victim impact statements from a number of your victims. There are common themes that emerge from those.  Many have faced difficulty in their schooling, some leaving school prematurely because of learning and emotional difficulties which they connect to your offending against them.   Some report difficulties at work, with personal relationships and they report feeling shame connected with the experience.   One of them says he has contemplated suicide. There is also a victim impact statement provided by a mother of two of the victims who speaks about the feelings of hurt, anger and betrayal she feels in connection with what occurred.

[18]     I have read the pre-sentence report prepared in respect of you.  You are 59 years old and prior to your remand in custody you lived with your wife.  You are the father of four adult children and also a grandfather.  You acknowledge the hurt that you have caused to the victims and to their families.   You present as willing to engage in any available sex offender treatment programme to minimise any potential risk of reoffending.

[19]     I have also read the letters that your counsel has handed up today, and I am satisfied from those that you fully understand the seriousness of your offending and accept responsibility for it.

[20]     The Crown submits that your offending is towards the more serious end of the spectrum, given the nature of some of the acts, the number of victims, the age of some of your victims and because you used these victims to recruit further victims. It submits that an appropriate starting point is eight to nine years imprisonment.  It acknowledges  that  you  are  entitled  to  a  full  discount  for  your  guilty  plea  and suggests 25%.  It also seeks a reparation order of $9,000 in respect of the theft from your  employer  and  that  is  consented  to  by  you.    The  Crown  does  not  seek  a minimum period of imprisonment as it says the lengthy sentence of imprisonment

you  will  inevitably  be  sentenced  to  will  be  sufficient  to  fulfil  the  necessary sentencing purposes.  Although the Crown records that you are by reason of your serious offending, eligible for a sentence of preventive detention, it does not seek such a sentence.

[21]     Your  counsel   notes   that   you   pleaded   guilty   at   the   earliest   possible opportunity.  Your plea was delayed only by the need to resolve the form of charges with the Crown.  Your counsel submits you are entitled to some credit for previous good character as you have no previous convictions for this type of offending.  He also submits that you have shown genuine remorse and that you are motivated to rehabilitate and therefore some reduction in sentence is required to reflect that fact.

[22]     Your counsel refers to authorities also referred to by the Crown, including R v Lyttle[1]and R v Hulks[2]and says that in light of those a starting point of eight years imprisonment is appropriate.  He then submits that a discount of approximately 35% should be allowed given the lack of previous convictions, willingness to change and undertake treatment, excellent pre-sentence report, good prognosis for your future and genuine remorse.  This would yield a sentence it is said somewhere in the order

of five to five and a half years imprisonment.  Your counsel submits that in light of the sentence and because of your remorse and commitment to rehabilitation there is no need for a minimum term of imprisonment.

[1] R v Lyttle HC Rotorua CRI-2010-063-3910.

[2] R v Hulks\ HC Auckland CRI-2009-090-9262, 10 September 2010.

[23]     It is common ground that the sentences I impose upon you in respect of the sexual offending should be concurrent.  I have considered whether the sentence in respect of the theft should be cumulative.   Whatever approach I take, that is a relatively minor aspect of your offending, and so will not have a significant impact on your sentence.   I also have to ensure that any sentence I impose reflects the gravity of and your culpability for the totality of your offending.

[24]     It is common ground that the guideline judgment of R v AM[3]  for sexual violation in unlawful sexual connection cases does not apply as you are not charged

[3] R v AM [2010] NZCA 114; [2010] 2 NZLR 750.

with either of those offences.  Given the summary of facts which you accept as true, however your offending has many of the characteristics in relation to such charges. Moreover the Court of Appeal in AM canvassed aggravating and mitigating factors relevant to sexual offending.   Those factors and that analysis are of assistance in assessing the gravity of your offending and your culpability for that offending.   I have identified the particular aggravating features of your offending as follows:

(i)       The number of victims

[25]     There were 13 victims of your offending.

(ii)      Vulnerability of the victims

[26]     Given the nature of the charges, it is inevitable that the victims are vulnerable because they will be, by definition, young people.  However I also take into account however the disparity between your age and that of your victims, which is relevant when assessing the issue of vulnerability.  I also take into account that you knew that your victims were from relatively disadvantaged backgrounds and were likely to be attracted to the offers of money that you made.

(iii)     Duration or frequency of the offending

[27]     Your offending against most of the victims occurred over a lengthy period of time – months, and in some cases, years.  Moreover when viewed in its totality you were offending from the period 2003 through  to 2011.   Finally,  many of these charges are representative charges, so they represent multiple instances of offending.

(iv)       Premeditation

[28]     I take into account the extent of premeditation involved in your offending which I would characterise as nothing short of chilling.  As the Crown submits, your

offending became a lifestyle habit pursued almost daily.  You deliberately groomed your victims and perhaps the most shocking aspect of your offending is that you then used those victims to recruit further victims for you.

(v)      Harm to the victims

[29]     The extent of that harm is plain from the victim impact statements I have read.  You have offended against children and adolescents, and so your victims total a far greater number than 13.  The ripple effects of what you have done extends to their immediate families.  In some cases it may well extend to the future families that these young men will have.   We can only hope that can be avoided through the support they are currently receiving from their families and also from counselling services which have been made available to them.

[30]     Your counsel submitted, but to be fair not strenuously, the fact that the sexual activity was consensual was a point in your favour in terms of providing context for the offending.  But as I have observed, the fact that you paid these young men and boys was part of your mode of operation – you were preying upon their vulnerability and  the  attraction  that  money,  sometimes  pathetically small  amounts  of  money, would have.  As the Court of Appeal held in R v Boyd[4] the relevant provision of the Crimes are “prophylactic” and “quite deliberately put into place by our Parliament to protect young [people] against precisely the sort of thing which occurred in this

particular case.”

[4] R v Boyd (2004) 21 CRNZ 169 (CA) at [40].

[31]     In adopting a starting point, I have had regard to the cases referred to me by your counsel and counsel for the Crown.   It seems to me that your offending is considerably more serious than that in   Lyttle.   That case involved victims aged between seven and 12, so generally younger than your victims I accept, but over only a 16 month period to be contrasted with the lengthy period of time that your

offending extended.

[32]     The sexual acts in Lyttle ranged from kissing to touching under clothes and the offender rubbing his penis against the genital region of one of the seven year old victims.  It involved was less serious sexual offending than in some of the offending you have been charged with.   In Lyttle Lang J took a starting point of five years imprisonment for the most serious charge of indecent act with a seven year old girl, and then added a three year uplift to reflect the number of victims, bringing the end starting point to eight years imprisonment.  He then uplifted it a further two years to reflect previous offending by the offender, (such an uplift does not apply in your case).

[33]     I also regard the offending in Hulks as being less serious.  It involved fewer victims and fewer instances of offending.  Moreover in that case, the victims were not procured to perform oral sex on the offender.

[34]     Of some assistance is R v Turner.[5]   In that case Mr Turner had struck up a friendship with five boys aged between 11 and 16 over the course of two and a half years, using their mutual enjoyment in model aircraft as a pretext to get them alone. Their friendship then progressed to sexual conduct with them which culminated in two instances of oral sex.  Mr Turner pleaded guilty to two counts of sexual violation by unlawful sexual connection, (so that is more serious offending than you have pleaded guilty to), and nine counts of indecent assault.  An eight year starting point was regarded by the Court of Appeal as severe but appropriate in that case.

[5] R v Turner CA113/04, 4 October 2004.

[35]     In your case, the most serious offending is in respect of the youngest victim, victim 13.  It is the most serious because of his age and because of the sex acts you procured him to perform.  It involved several occasions of your performing oral sex upon him and multiple instances of you procuring him to perform oral sex on you. For this offending alone I adopt a starting point of six years.  There is then a need to uplift this to reflect the extent of the other offending against the other victims.  This included multiple instances of your performing oral sex upon young boys under the age of 16, and also included victim five performing oral sex upon you at your request and insistence.   It also involved 12 counts of unlawfully entering into a

contract for sex with young men under the age of 18.   In totality this offending

involved dozens of instances of unlawful conduct by you, occurring over nearly an eight year period.   In my view an appropriate uplift to ensure that the sentence reflects the totality of offending is three years.  I would also be inclined to sentence you to six months imprisonment on the theft charge, but bearing in mind the totality principle  I do  not  propose to  uplift  the sentence further in  light  of that.   That produces a starting point of nine years.

[36]     From that you are entitled to a 25% discount on account of your guilty plea. You are also entitled to some discount on account of your remorse and the commitment you are making to rehabilitate yourself.

[37]     I do not see your previous good character as something you are entitled to credit for.  You were, after all, offending for a period of eight years.  This was not a single impulsive act, but a course of conduct stretching over a lengthy period of time.

[38]   I therefore propose to give you a discount in sentence of three years imprisonment, which is a full third to reflect those mitigating factors.

[39]     The   next   issue   is   whether   I  should   impose   a   minimum   period   of imprisonment.  This is not an issue I have found easy.  Your counsel submits that given  your early guilty pleas, willingness to undertake treatment and a positive prognosis there is no need for a minimum term of imprisonment.  The purpose of a minimum period of imprisonment is to make sure that the sentence that is imposed (taking into account the statutory default minimum period of one third of the sentence) is sufficient to hold you accountable for the harm done, denounce your conduct, deter you or others from similar offending and to protect the community.  In my view the statutory minimum in this case will be sufficient for these purposes.  I have reached this view based on your counsel’s submissions, but also on the reports I have received in respect of the final phase of sentencing which I come to shortly, which is the issue of preventive detention.  I have concluded that I will not impose a minimum period of imprisonment on you.

[40]     I then turn to the issue of preventive detention.  So serious is your offending that  you qualify for the imposition of a sentence of preventive detention.   The conditions for such sentence are that you are convicted of a qualifying sexual or violent offence, you are aged 18 years or over and I am satisfied that you are likely to commit another qualifying sexual or violent offence if released at the expiry date of the finite sentence.

[41]     The first two pre-conditions are clearly established here and the issue for me is whether you are likely to commit another qualifying sexual offence if released at the expiry date of your finite sentence.  In determining this, the Sentencing Act tells me a number of factors I have to have regard to which include:

(a)       Any pattern of serious offending disclosed by the your history;

(b)The  seriousness  of  the  harm  to  the  community  caused  by  your offending;

(c)       Information indicating a tendency to commit serious offences in the future;

(d)The  absence  or  failure  of  efforts  by  the  prisoner  to  address  the cause(s) of the offending; and

(e)       The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[42]     In undertaking this analysis I have had regard to reports provided by two health assessors. The first report is that by Sabine Visser.  She notes that you point to your suppressed homosexuality as accounting for your offending.  She recounts that you say you felt your offending got out of control as some of the boys were demanding money in return for keeping secret your offending.   She says you are

strongly motivated to attend a treatment programme.   There is evidence that you have an alcohol abuse problem which also needs to be addressed.  She has assessed you at being at a low to moderate risk of reoffending.  She recommends a custodial sentence of sufficient duration to enable you to address your rehabilitative needs.

[43]     The second report is provided by Dr Krishna Pillai.   Dr Pillai also records that you have a drinking problem, and records that you say that you had made a point of making sure that the victims were over 16 and that you were unaware the legal age for prostitution was 18.  But you accept that by the time you offended against the

11 year old boy, your offending had got out of hand.   Dr Pillai says that there is insufficient evidence to suggest that you have paedophilic tendencies, and identifies the main risk factors for you as alcohol consumption and an ability to overcome your empathy for your victims.   You are assessed as posing a low to moderate risk of reoffending, but if you undergo rehabilitative treatment, for which you are likely to be a good candidate, your risk of reoffending will be low.

[44]     From your perspective these are positive reports. You are assessed at being at low to moderate risk of reoffending and a good candidate for treatment.

[45]     I weigh alongside this information that you have not previously received a sentence of imprisonment for sexual offending, and you have not previously received any rehabilitative treatment in connection with that.  Moreover, you are to receive a lengthy sentence of imprisonment during which rehabilitative treatment will be made available to you.  I identify for those purposes that you have rehabilitative needs in relation to alcohol abuse and sexual offending.  On the basis of this information I am satisfied that it is not necessary to impose upon you a sentence of preventive detention.

[46]     Mr Shine, you are therefore sentenced as follows.   On the two counts of sexual connection with a male under the age of 12 years, you are sentenced to six years imprisonment.  On each of the nine counts of sexual connection with a male aged between 12 and 16 years you are sentenced to three and a half years imprisonment.  On the one count of an indecent act on a male aged 12-16 you are sentenced to two years imprisonment.  On each of the 12 counts of contract for sex

with a male under 18 you are sentenced to two years imprisonment.   On the one count of theft you are sentenced to six months imprisonment.  All of these sentences are to be served concurrently.  I further order that you pay reparation of $9,000 to HCB Technologies Ltd, 2 Mahanga Drive, Mangere Bridge.   That means that the effective sentence I impose upon you is six years imprisonment together with the order of reparation.

[47]     You  are  discharged  on  count  25,  the  Crown  having  elected  to  offer  no evidence on it.

[48]     To make clear, I think there are members of the media present.   There are statutory suppression orders in place in respect of this sentencing which means that no names of the victims – and I did not mention any – are to be reported, and also no identifying particulars.

Winkelmann J