R v Snowden

[2012] NZHC 604

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-085-7663

CRI-2012-485-1 [2012] NZHC 604

THE QUEEN

v

TREVOR WILLIAM SNOWDEN

Hearing:         7-10, 13 February 2012

15-16 February 2012

Counsel:         I Murray and J Ongley for the Crown

G King for Trevor Snowden

Sentence:       16 March 2012

SENTENCING REMARKS OF MALLON J

Introduction

[1]      Mr Snowden, you are here for sentence on 17 counts of sexual offending in the 1970s and 80s.  Fifteen of these counts relate to two brothers, the older of the two I will refer to as complainant A and the younger as complainant B.  The remaining two counts relate to a third complainant, who I will refer to as complainant C.  You were convicted on these counts following two jury trials in Wellington in February this year.   The first jury trial related to the offending on the two brothers.   The

second trial related to the offending on complainant C.1

1      This trial was heard separately from the trial relating to the two brothers as a result of a pre-trial ruling confirmed by the Court of Appeal: R v S [2011] NZCA 612.

R v SNOWDEN HC WN CRI-2010-085-7663 CRI-2012-485-1 [16 March 2012]

a)       Two  counts  of  sodomy  on  a  boy  under  16,  one  of  which  is representative: the maximum penalty that applies on each of these counts is 14 years’ imprisonment.

b)Two counts of doing an indecent act with a boy under 16 (namely performing oral sex on him), one of which is representative: the maximum penalty that applies on these counts is 10 years’ imprisonment.

c)       One representative count of inducing a boy under 16 to do an indecent act (namely to masturbate you): the maximum penalty that applies on this count is 7 years’ imprisonment.

d)Two representative counts of indecent assault (one for performing anal intercourse on the complainant and the other for performing oral sex on him): the maximum penalty that applies on these counts is

5 years’ imprisonment.

[3]      In relation to complainant B you are to be sentenced on the following:

a)        One count of sodomy on a boy under 16: the maximum penalty that

applies on this count is 14 years’ imprisonment.

b)Four counts of doing an indecent act with a boy under 16 (namely performing oral sex on him), one of which is representative: the maximum penalty that applies on each of these counts is 10 years’ imprisonment.

c)       Two counts of inducing a boy under 16 to do an indecent act (one for inducing the complainant to perform oral sex on you; the other a representative count for inducing the complainant to masturbate you): the maximum penalty that applies on these counts are 10 and 7 years’ respectively.

d)One representative count of indecent assault (namely performing oral sex  on him):  the maximum penalty that applies on this count is

5 years’ imprisonment.

[4]      In respect of complainant C you are to be sentenced on:

a)        One  count  of  indecent  assault  (namely  performing  oral  sex  on complainant C): the maximum penalty that applies to this count is

5 years’ imprisonment.

b)One count of indecent assault (namely performing anal intercourse on complainant C): the maximum penalty that applies to this count is

5 years’ imprisonment.

Historic nature of the charges

[5]      The nature of the charges reflects their historic nature.   You could only be charged with offences as they were at the time of the offending, and only if the act that constituted the offence at the time of the offending, was also an offence after the Homosexual Law Reform Act 1986.2   The maximum penalties for the offending are those that applied at the time of the offending, unless the penalty for that offending is now less and in which case you have the right to the benefit of the lesser penalty.3

I sought submissions on this issue and the above penalties I have referred to are in accordance with counsels’ views on that issue, which views I agree with.  I will set out in an appendix to these remarks, my reasons for the view I have taken on the maximum penalties in your case.  As a matter of fairness, the sentencing patterns at the time of the offending, rather than the sentencing patterns of today are to be

applied.4

2      Section 7(1) of the Homosexual Law Reform Act. This meant that sodomy of a male over the age of 16 years (an offence pre the 1986 reforms) had to be charged as indecent assault under s 141(1)(a) of the Crimes Act 1961: R v J CA426/92, 28 June 1993(followed by R v NT

HC Auckland CRI-2009-092-7402, 5 October 2010; compare with R v L (No 4) HC Invercargill T3/93, 12 August 1993); oral sex on a boy under 16 was charged as doing/inducing an indecent act (though now it would also qualify as sexual connection with a young person) under

ss 140(1)(b) and (c) of the Crimes Act 1961 ; and oral sex on a male over 16 was charged as indecent assault under s 141(1)(a) of the Crimes Act 1961.

3      Section 6 of the Sentencing Act 2002and s 25(g) of the New Zealand Bill of Rights Act 1990.

4      R v Fissenden CA364/95, 21 February 1996; R v R CA244/04, 2 November 2004; R v KJB

[2007] NZCA 292.

Complainant A

[6]      I turn now to the circumstances of your offending.  The offending in relation to complainant A began in about 1976 when he was aged about 13 years and ceased in about 1982 when he was aged about 18 years.

[7]      Complainant A recalled meeting you at a tennis club when he was about 12. You took an interest in his tennis and then, when he was about 13, offered him and a friend of his a cleaning job at one of the bars you owned at the time and also at your house.   You were kind  and treated him well and also became friends with his parents.  You often visited the apartment where complainant A and B lived with their father.

[8]      Complainant A remembers an occasion when he was 13 years old and was working at your bar when you asked him whether he and his friend were more than just friends and what did they do to each other.   Complainant A had never heard anyone talk like that before and said to you “No, doubt it” or something like that.

[9]      The first incident which was the subject of a charge occurred after this but when complainant A was still about 13, and you were in your early thirties.   The complainant had been at your house in Mount Cook, Wellington where you provided lots of alcohol to him, he thinks this was vodka and orange, and he became very drunk for the first time.  He passed out in your bedroom with his clothes on.  When he awoke, he was naked and you were performing oral sex on him.  The complainant was shocked and did not know what to do.  You continued to perform oral sex on him until he ejaculated, which was the first time the complainant had ever ejaculated. At some point the complainant vomited.  He later left but does not remember leaving or how he got home.

[10]     The next incident also occurred when complainant A was still about 13. Complainant A remembers little of the detail, other than that he was in his uniform at your house.  You performed anal intercourse on him for the first time and he recalls how much it hurt him.  He recalls you masturbating and ejaculating on his back.

[11]     Your offending on complainant A went on for years after this.  Complainant A continued to work after school as a cleaner at one of your bars and later he worked as a trainee manager.   You were also a regular visitor at his home and you also coached rugby when complainant A was playing in age group teams.  On numerous occasions,  you  performed  oral  and  anal  sex  on  complainant  A  and  had  him masturbate you.  You told complainant A you loved him and that you would leave him money when you passed on.

[12]     The  complainant  did  not  want  this  sexual  activity  to  occur.    From  the beginning he felt unable to tell you to stop, though he was saying “no, no, no” in his head.  He felt too embarrassed and ashamed to tell anyone or to do anything about it. As the complainant got older the offending happened less often.  At some stage, after the complainant had left school, he visited you.  He was drunk and called you names and made threats.  The bouncers at the pub pushed him out.  After that the offending ceased.

[13]    Your defence at trial was that consensual sexual activity occurred with complainant A when he was 16 years or older.   You denied ever having anal intercourse with him.  The jury rejected this.  They did not have to consider whether complainant A consented to the sexual activity when he was under 16.  For the two representative counts of indecent assault they did have to consider consent.  Their verdicts mean that they were satisfied that complainant A did not consent and that you knew he did not consent.  Given those verdicts, there can be no doubt that had the jury had to consider consent in relation to the offending when complainant A was under 16 they would have reached the same view – that is, that they did not consent and you knew that.

Complainant B

[14]     Complainant B was five years younger than complainant A.  As your sexual activity with complainant A was coming to an end you moved your attentions to his younger brother.  Like complainant A, your offending on him began when he was aged about 13 years and ceased when he was about 18 years.

[15]     When it began, complainant B was living with his father and complainant A. He knew you through your friendship with his father and because his mother and

brother worked as cleaners at bars you owned at the time.   He liked to help his mother in the weekend as it was a way of spending time with his mother.  He also sometimes cleaned your home for you.

[16]     The first incident occurred in about late 1981, when complainant B was about

13.  He had been working at your house, moving something, when he hurt his back. You told him to go lie down.  He did so, and then you began massaging his back. You then started rubbing him on his groin through his jeans.   You pulled off his jeans and started rubbing his penis and then you put your mouth on his penis as well. Complainant B remembers this hurting and that he was “freaking out”.   You continued until he ejaculated.   After that you took your clothes off, grabbed complainant B by the head and stuck your penis in his mouth.  In this way you made complainant B perform oral sex on you until you ejaculated in his mouth. Complainant B remembers being terrified and trying to pull away and gagging. Afterwards you drove complainant B back to his home.

[17]     About a month after this the second incident occurred.  Complainant B was in bed at home, when he heard his father, his brother and you come back from a night at the pub.  The three of you all sounded, he said, “really boozed”.  After a short time, you went upstairs to his bedroom, pulled back the covers, pulled down his pants and stuck your penis in his mouth.  This did not go on for long.  You laughed and joked and went back downstairs.

[18]    Like his older brother had done, despite your sexual offending on him, Complainant B continued to work for you at your home and at your bars, progressing in the responsibilities he was given at the bars.  When he got his drivers’ licence he also had access to your car and would drive you around when you needed him to. Your offending on complainant B continued.   On some occasions you would play pornographic movies, or show him pornographic pictures while you performed oral sex on him.  You would get complainant B also to perform oral sex on you.  As he got older he was able to resist doing this and instead would masturbate you.

[19]     Complainant B recalls that on one occasion, when he was 16 or 17  you performed anal intercourse on him.   He recalls this being massively painful and trying, unsuccessfully, to get you to stop.   He recalls feeling dirty, ashamed and disgusted, while you were smiling and saying how good it was.  Complainant B said

that he was massively determined never to let that happen again, and that there was no more anal intercourse after that.  The oral sex and masturbation continued though.

[20]     Complainant B remembers trying to stop it happening several times, but found it challenging and oppressive and that you would keep trying it on and that it took him a lot to get “the guts” to bring an end to it.  He recalls the last occasion being in about 1986 when you paid for him to go to Sydney for a week, with his friends who were in the school’s first XV rugby team when they had a rugby trip over there.

[21]     As with complainant A, your defence at trial was that sexual activity occurred only when complainant B was 16 or older and that it was consensual.  It was also contended that you did not ever have anal intercourse with him.  The jury rejected this.   Their verdicts mean that you did have non consensual anal intercourse with complainant B, and that when you sexually offended on him when he was a young boy it was in circumstances where you knew that he was not consenting.

Complainant C

[22]     The offending in relation to complainant C concerned one incident, which occurred in 1984 or 1985 when complainant C was about 19 and you were in your early 40s.

[23]     Complainant C met you in his late teenage years, through complainant B. Complainant C and his friends would regularly drink at the bars you owned and at which complainant B was working.  Complainant C and his friends were under the legal age of 20 years for drinking at a public bar.

[24]     The incident that gave rise to your convictions in relation to this complainant occurred in the early hours of one morning.  Complainant C was on his way home from a night out socialising and drinking with some friends.  He bumped into you on Willis Street in Wellington, outside one of the pubs you owned.  You invited him inside the pub for a drink.  The two of you went into the bar and you supplied 3 or 4 bottles of French champagne most of which the two of you consumed in the bar.  By this time the complainant was highly intoxicated.  You suggested that the two of you

go upstairs to your living quarters above the bar to arrange some prostitutes for the two of you.  While upstairs the two of you continued to drink the champagne.

[25]     At some point complainant C was so drunk that he passed out on the couch. A short time later he awoke to find you trying to unzip his trousers.  He told you he was not interested but passed out again.  The next thing he recalls is waking up to find that he was naked on your bed and you were performing oral sex on him.  He told you he “did not want this”, “please don’t”, “you’re hurting me” and he tried to get you to stop.  You persisted until he ejaculated into your mouth.

[26]     You then tried to kiss him and asked him to masturbate you.  You threatened him if he did not do as you wanted and grabbed his hand and put it on your penis. Complainant C was made to taste his own semen and to masturbate you and after this you put him face down on your bed and performed anal intercourse on him until you ejaculated.  Complainant C recalls this as being very painful.  Afterwards he had a shower at your place, got dressed and made his way home.

[27]     At trial it was said that you had no recollection of complainant C.  The jury were satisfied that the incident occurred, that complainant C had not consented and that you did not honestly believe that he consented.

Circumstances of offender

[28]     I turn to your circumstances.  You are 68 years old, nearly 69.  You have no relevant previous convictions.  Before your imprisonment following the convictions for this offending, you were a pensioner and lived in rented accommodation in a small flat with a flat mate.

[29]     Prior to this you had a long career as a Wellington hotelier.  You owned and managed a number of the well known Wellington pubs in the 1970s and 1980s and were prominent in the industry.  Before this, you were a house master and teacher at a Wellington school.  You were also involved with Wellington rugby over the years as a player and a coach.  The probation officer has had contact with some of your support people who have described you as a charismatic person who has done a lot of good for many people.

[30]     This is confirmed by the letters of support that have been submitted to me.  A former student has written that you were an immensely important mentor to him. Your former accountant describes you as having been a generous and popular publican.  A past president of the Wellington Hotel Association says that there were many instances where you went “beyond the norm” to assist others in need which left you in a poor financial position.   Two long time friends refer to the personal support you provided to their families over many years.  Your brother and his wife have talked of your generosity and kindness.

[31]     According to the probation report you do not have an issue with alcohol and there are no physical and mental health issues.  However that does not appear to be an accurate position on the material before me and was not the picture presented at trial.   I note that the first trial started a day late because you had to be taken to hospital in an ambulance.  You were not present for closing addresses, the summing up and the verdicts in the first trial because you again had to be taken to hospital by ambulance

[32]     The probation officer reports you as saying that you “vaguely” remember incidents with some of the victims but that you consider they were “harmless”.  You continue to deny there was any anal sex.  You expressed the view that if the victims had any issue with your actions then they should not have continued to work for you. You are described by the probation officer as having a complete lack of empathy or remorse.

[33]   Your counsel has this morning made submissions about some of those comments being taken out of context and in particular, that where you referred to being “harmless”, he says that this was your view of how you are now.   Your counsel has also told me that you have read the victim impact statements and says that these made an impression on you.

Victim Impact Statements

[34]     Your actions were not of course harmless.  At trial each of the complainants gave harrowing accounts of what had occurred and their inability to stop what you were doing to them although they had wanted you to stop.  Complainant A’s victim impact statement makes for very sad reading.  I will read out a small piece of that

which captures some of the impact upon complainant A: He says: “I will live with this until I die.  I wish no boy would ever have to go through what I have.  The guilt. The pain.   The sadness.   The loneliness.   The trial.   The shame...smiling on the outside but crying on the inside.”  Complainant B described his feelings of terror and shame.  He says he hated himself and has had to live with many years of problems with sleep, depression and fear.  Complainant C refers to twenty years of suffering shame and indignation.  He refers to the impact this has had on his relationship with his father and the problems he has had in his life after the incident that occurred on him.

Starting point

[35]     I need to set a starting point for the offending.  The Crown submits that the offending against each of complainant A and B would justify around 5½ to 6 years’ imprisonment but, when looked at on a totality basis and including the offending against complainant C, an overall starting point of at least 9 years’ imprisonment is justified.   Your counsel does not submit what the overall starting point for the offending should be.   He submits that the starting point for each of the sodomy complainants when they were under 16 should be between three and four years. That is not too far off the Crown’s 5½ to 6 years for each of complainant A and B when  the  other  sexual  offending  against  those  complainants  is  also  taken  into account.

[36]     For offending of this nature the approach the Courts have taken is to take a starting point which reflects overall the totality of the offending.  The sodomy counts are the lead offences and the other offending is treated as aggravating.  In respect of complainant A the lead offence is the representative count of sodomy on a boy under

16.  There are a number of aggravating features.  First, there is the vulnerability of complainant A.  He was just 13 and you were in your mid 30s.  You took advantage of his willingness to accept the attention you gave him through your interest in his tennis and his keenness to have some paid work to do at your bar.  You groomed him for anal intercourse, by – on an earlier occasion - performing oral sex on him only after you had plied him with alcohol until he was so drunk that he passed out.  After the first occasion of anal intercourse you were able to and did repeat the activity on a

number of occasions.   Throughout the period of the offending included the other indecencies.

[37]     The  grooming  through  offering  alcohol  and  work  and  kindness  was  a significant feature of the offending with complainant B as well.  You took advantage of his vulnerability as a young boy and your position as an older man who could provide him with work and alcohol.   As with complainant A you started by performing oral sex on him.   The anal intercourse occurred after you had gotten away with or had achieved having oral sex with him.  In complainant B’s case, he managed to stop you performing anal intercourse on him after the first occasion, but the other indecencies occurred.  Your offending occurred on many occasions over a five  year  period.    With  complainant  C  you  plied  him  with  alcohol  and  took advantage of his highly intoxicated state and his physical inability in that state to stop you.

[38]     The  sentencing  notes  will  include  references  to  the  cases  I  view  as comparable which include the cases that counsel have referred me to in their submissions.  As I have said at the outset you are to be sentenced according to the sentencing patterns at this time.  Guidance is therefore best obtained by comparing your case with sentences given in other cases of historic offending of this kind. Those cases indicate that a starting point of somewhere between 8 and 9 years

imprisonment is appropriate,5  although there are cases where lower starting points

have been taken.6

Personal mitigating factors

[39]     Sometimes when there is a lengthy period of time between the offending and

sentence, the offender’s conduct in the intervening period may count in his or her

favour.  Your counsel in his written submissions submits that you have demonstrated

5      R v Hibberd [2001] 2 NZLR 211 (CA) (similar offences, similar period, six complainants);

R v P-T HC Whangarei CRI-2009-088-002118, 14 May 2010 (similar offending, similar period, six complainants); R v Locke HC Wellington CRI-2007-091-1343, 5 September 2008 (similar offending, similar period, four complainants); R v NT HC Auckland CRI-2009-092-7402,

5 October 2010 (similar offending, similar period, five complainants); R v Darke CA225/88,

20 April 1989 (similar offending, similar period, five complainants).

6      R v H CA512/93, 15 March 1994 (seven years’ imprisonment, one complainant); R v Patterson

[2002] 1 NZLR 245 (CA) (seven years, 10 complainants); R v Wolland CA437/02, 3 June 2003

(six years’ imprisonment, one complainant); R v Davis HC Wellington CRI-2004-085-8899,

7 April 2006 (five years’ imprisonment, one complainant).

that you have overcome your earlier proclivities and have settled into a normal and law abiding life.  The absence of convictions after a period of offending does not of itself require a more lenient sentence.  It is a stronger point where there is something which actually demonstrates having overcome earlier proclivities.   The authorities refer  to  examples  where  an  offender  has  faced  up  to  their  offending,  sought treatment, demonstrated remorse or in some way sought to atone for their offending.7

There is nothing of this nature here.  Rather, as the probation officer says, you have

demonstrated no remorse or empathy to the complainants here although I note again that your counsel said today how you reacted upon reading the victim impact statements.  Further, the Court of Appeal has said:8

“the extent to which any allowance can be made for this factor must be balanced against the fact that the offender is being sentenced at the much lower sentencing levels which applied at the time of the offending and that to an extent it is fortuitous that the offending did not come to light at the time it occurred.  Had this happened the offender would not have had any opportunity to rely upon subsequent good character.

[40]     I   acknowledge   the   absence   of   previous   convictions   and   the   good characteristics that those who support you have referred to.  There is no doubt that you do have many good characteristics but in offending of this kind previous good character is somewhat of a “hollow concept” when the offending is frequent and occurs over a prolonged period.9

[41]     I have considered though whether your sentence should be reduced because of your age and poor health.  That is because I am required to take into account any circumstance that means that the sentence that would otherwise be appropriate would be disproportionately severe.10   A deduction for age is not automatic.  It all depends on the circumstances.  In your case I consider the appropriate thing to do is to take the bottom of the sentencing range that I have earlier referred to and discount that slightly to recognise that you, at this stage in your life, that the sentence does not need  to  incorporate  any  particular  allowance  for  individual  deterrence  for  re-

offending risk and also because I accept that the rigours of prison will be more

7      R v Tutty [1998] 3 NZLR 165 (CA); R v Accused (1998) 15 CRNZ 602 (CA); R v R CA181/99, CA182/99, 1 September 1999; C v R [2010] NZCA 537.

8      R v Seiuli [2009] NZCA 315 at [28].

9      R v NRW CA 482/05, 1 March 2006 at [17] cited in C v R [2010] NZCA 537 at [50].

10     Section 8(h) Sentencing Act. Examples of reductions in sentence for age and ill health are

R v Fahey HC Christchurch T75/99, 1 June 2000 affirmed by R v Fahey CA184/00, 2 November

2000; R v McL CA5/96, 14 November 1996.

difficult for you at this age and stage and in your health than had you been sentenced when you were a young[er] man.

[42]     I am therefore going to sentence you to an overall sentence of 7½ years’ imprisonment.    I need  to  allocate  this  to  the  particular  sentences.    I  do  so  by allocating 7½ years’ imprisonment to count 5.  I impose a concurrent sentence of 7½ years’  imprisonment  on  the  other  sodomy  counts  and  concurrent  sentences  of

3 years’ imprisonment on all the remaining counts.

[43]     Please stand down.

Mallon J

APPENDIX

[1]      In advance of sentencing I issued a minute which said:

This minute is to advise counsel that, as well as the usual written submissions addressing starting points and personal aggravating and mitigating factors, the submissions will need to address the issue of the maximum penalty that applies to each charge.  This issue arises because Mr Snowden was charged with offences as they were at the time of his offending; but only if the act that constituted the offence also constituted an offence after the commencement of the Homosexual Law Reform Act 1986; and in the light of s 6 of the Sentencing Act 2002 and s 25(g) of the New Zealand Bill of Rights Act 1990.

[2]      My minute then set out my preliminary views on the applicable penalties.  To some extent the correct maximums that apply are academic though they may affect whether a combination of concurrent and cumulative sentences are necessary to reflect the totality of the offending.i   The important thing is that the overall sentence reflects the totality of the offending whether that is achieved through a lead sentence and concurrent sentences, or a combination of concurrent and cumulative sentences.

Sodomy of a boy under 16

[3]      The charge as it was at the time of the offending carried a maximum penalty of 14 years’ imprisonment (s 142(1)(b)).  In the period between 1986 and 2005, for a charge of sodomy on a boy aged between 12 and 16 years, the maximum penalty was 7 years’ imprisonment (s 142(3)(b)).   From 2005 the maximum penalty for sexual connection with a young person is 10 years’ imprisonment (s 134(1)), and for sexual violation is 20 years’ imprisonment (s 128B).

[4]      In  some  cases  the  view  has  been  taken  that  the  7  year  penalty  is  the appropriate maximum for a charge under s 142(1)(b) relating to offending pre-1986.ii In other cases the 14 year maximum has been referred to without elaboration.iii Counsel for the Crown submits that the 14 year penalty is the correct one.  Counsel for Mr Snowden agrees that the correct penalty is 14 years.  As the Crown points

out, pre-1986 the absence of consent was an aggravating feature rather than an element of the offence.  Between 1986 and 2005 the lesser maximum of 7 years for anal intercourse on a boy between 12 and 16 was available, but at the same time

sexual  violation  was  created  as  a  distinct  offence  with  a  maximum  penalty  of

R v SNOWDEN HC WN CRI-2010-085-7663 CRI-2012-485-1 [16 March 2012]

14 years and which was available for non-consensual anal intercourse.   It follows from the jury verdicts on the later counts that the earlier offending was non- consensual.  Before 1986 it was offending that was subject to a 14 year maximum. After 1986, as non-consensual offending, it was offending that would have been subject to a 14 or 20 year maximum.  It is not a situation where Parliament’s view of the seriousness of the offending has diminished such that a lesser penalty should be applied to Mr Snowden.

Doing an indecent act with a boy under 16

[5]      The charge, as it was at the time of the offending, carried a maximum penalty of 10 years’ imprisonment (s 140(1)(b)).  In the period between 1986 and 2005, for indecency  with  a  boy  between  12  and  16,  the  maximum  penalty was  7  years’ imprisonment  (s 140A(1)(b)).    From  2005,  for  sexual  connection  with  a  young person, the maximum penalty is 10 years’ imprisonment (s 134(1)), and for doing an indecent act on a young person the maximum penalty is 7 years’ imprisonment (s 134(3)).

[6]      The Crown submits that the maximum penalty where the indecent act would now amount to sexual connection should be 10 years’ imprisonment (ie oral sex) and for  the  other  indecent  acts  (masturbation)  it  should  be  7  years’  imprisonment. Mr Snowden’s counsel agrees with this and so do I.

Inducing a boy under 16 to do an indecent act

[7]      The  charge  at  the  time  of  the  offending  carried  a  maximum  penalty  of

10 years’ imprisonment (s 140(1)(c)).  Between 1986 and 2005, for inducing a boy over the age of 12 years and under the age of 16 years to do an indecent act, the maximum  penalty  was  7  years’  imprisonment  (s 140A(1)(c)).    After  2005,  an indecency on a young person (which includes inducing a young person to do an indecent  act)  has  a  maximum  penalty  of  7  years’  imprisonment  (s 134(3)  and s 2(1B)).

[8]      The Crown position is that the maximum penalty where the indecent act (oral sex) would now amount to sexual connection should be 10 years’ imprisonment and

for  the  other  indecent  acts  (masturbation)  it  should  be  7  years’  imprisonment.

Mr Snowden’s counsel agrees with this and so do I.

Indecent assault

[9]      The charges of indecent assault are for offending when the boys were older than 16.   Some of the indecent assault convictions relate to anal intercourse and others relate to oral sex.  They were amended to charges of indecent assault (from charges of sodomy and doing an indecent act) because of s 7 of the Homosexual Law Reform and the decision in R v J.iv

[10]     At the time of the offending the maximum penalty for an indecent assault was five  years’  imprisonment  (s 141(1)(a)).    Between  1986  and  2005  the maximum penalty for an indecent assault was 7 years’ imprisonment (s 141(1)(a)).  From 2005 the maximum penalty for an indecent assault is 7 years’ imprisonment.  Mr Snowden is entitled to be sentenced on the basis of the lesser maximum penalty, ie. 5 years’

imprisonment.  The Crown and defence counsel agree with this.

i       R v Afeaki HC Auckland T198/94, 20 December 2005.

ii      R v NT HC Auckland CRI-2009-092-7402, 5 October 2010; R v Davis HC Wellington

CRI-2004-085-8899, 7 April 2006.

iii     R v PT HC Whangarei CRI-2009-088-002118.

iv     R v J CA426/92, 28 June 1993.