R v Tatham
[2021] NZHC 815
•15 April 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2019-009-3256
[2021] NZHC 815
THE QUEEN v
GLYN DONALD TATHAM
Hearing: 15 April 2021 Appearances:
A McConachy for Crown
A J D Bamford for Defendant
Judgment:
15 April 2021
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Rotorua
R v TATHAM [2021] NZHC 815 [15 April 2021]
[1] Mr Tatham, you appear for sentence on two charges of indecently assaulting a boy between the age of 12 and 16 years.1 The maximum penalty for those offences is ten years imprisonment. You also appear for sentence on a charge of sexual violation by unlawful sexual connection.2 The maximum sentence for that offence is 20 years imprisonment.
[2]The convictions were entered after a jury found you guilty on the charges.
The facts
[3] The charges were laid as a result of two incidents that occurred during 1997. The complainant was a 12 year old boy who lived next door to you. He would visit your address along with other young persons. You gained his trust by allowing him to use electronic games and providing him with sweets and other things to eat.
[4] The first charge of indecent assault relates to an incident that occurred when the victim was staying overnight at your address. He awoke to find you pulling your pants down. You then took hold of the victim’s penis and fondled it for several minutes. The victim pretended to be asleep and brought the incident to an end by turning over in his bed.
[5] The remaining charges were laid as a result of a second incident that occurred approximately two weeks later when the victim was again staying overnight at your address. On this occasion his mother and stepfather had had an argument and he left his home address to stay with you for that reason. On this occasion the victim awoke to find you pulling his pants down. You then began stroking his penis back and forth. The victim reacted by freezing and pretending to be asleep. You continued to stroke his penis and did so with sufficient force that it caused him pain. He then rolled over on his stomach. You took that opportunity to insert your penis into the victim’s anus to the point where I am satisfied you ejaculated inside, or around, his anus.
1 Crimes Act 1961, s 140A(1)(a).
2 Crimes Act 1961, s 128(1)(b).
[6] You defended the charges on the basis that you had no recollection of these events. You denied, however, that you would have intentionally engaged in anal intercourse. You said that on a previous occasion you had accidentally engaged in behaviour of that type, but this was unintentional. You said that if the events that the victim described had in fact occurred, you would have merely been rubbing your penis against or between his buttocks. Any penetration of his anus would therefore have been unintentional. The jury’s verdict on the sexual violation charge means they did not accept your explanation, and found that you intentionally inserted your penis into the victim’s anus.
Approach
[7] The sentences to be imposed on you are complicated significantly by the fact that you are currently serving a sentence of eight years imprisonment imposed on 10 July 2014 in relation to further offending against young boys that occurred between 2006 and 2013. Counsel agree that, in order to fix an appropriate sentence for the present offending, it is necessary to consider all of your offending in its totality and to determine the sentence that would have been imposed had you been sentenced in 2014 on all charges at the same time.3
[8] The Crown submits, and I agree, that I need to attach some significance to the fact that the charges for which you were sentenced in 2014 occurred at least nine years after the present offending. In all likelihood you would have served your sentence in full had you been sentenced in or shortly after 1997.
Starting point for present offending
[9] The present offending occurred well before the guideline judgment of the Court of Appeal in R v AM.4 I am therefore required to consider the starting point that would have been selected had you been sentenced in or around 1997.
[10] Your offending obviously has several aggravating factors. The first is that the victim was just 12 years old and was therefore vulnerable by both his age and his
3 H (800/2012) v R [2013] NZCA 128 at [12].
4 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
troubled home life. Your house was a place of refuge for him and you breached the trust he showed in you by offending against him on two occasions. Secondly, there was an element of grooming and premeditation because you provided the victim with rewards such as sweets, food and access to electronic games. This made your house an attractive proposition for the victim.
[11] It was plainly evident at trial, and is again reflected in the victim impact statement, that your offending had a devastating effect on the victim. It has affected him deeply in many different ways over the last 24 years. You need to understand that he believes that you have effectively ruined his life.
[12] The Crown has referred me to a case involving a single charge of sodomy. This related to the anal penetration of a five year old boy in 1982. The starting point selected in that case was six years imprisonment.5 The Crown has also referred to a decision of the Court of Appeal in R v Castles.6 The facts of that case were very different to those in the present case but it is relevant for present purposes because the Court of Appeal observed that a starting point of around eight years imprisonment was appropriate for anal rape of a person of either sex if there were no particular aggravating features.7
[13] Based on these authorities the Crown submits I should select a starting point of eight years imprisonment on the lead charge of sexual violation and apply an uplift of around 12 months imprisonment for the charges of doing an indecent act on a child. I do not take your counsel to argue significantly with that approach because it ultimately becomes virtually irrelevant because of the manner of the sentencing exercise I must take. However, for what it is worth, I consider an overall starting point of eight years imprisonment adequately reflects the overall culpability of all your offending encompassed in the present charges.
5 R v Hughes [2012] NZHC 3313.
6 R v Castles CA105/02, 23 May 2002.
7 At [22].
The sentence imposed in 2014
[14] You were sentenced in 2014 after pleading guilty to charges relating to sexual offending against several young boys between 2006 and 2013. I take the description of this offending from the sentencing remarks of the Judge who sentenced you at that time.8
[15]-[21] Redacted to preserve suppression orders made in relation to the 2014 offending.
[22] The offending came to light when your then partner viewed the contents of the memory card containing objectionable material. She contacted the police in December 2013 and the police investigation into your activities began at that point. You admitted your offending to the police and acknowledged you had done wrong. You also said you needed help. In addition, you told the police you knew your victims were easy targets due to their upbringing and lack of family support. You said you knew they were susceptible to your influence and you would groom them to engage in sexual acts with you.
[23] The Judge who sentenced you in 2014 took a starting point of 13 years imprisonment on all charges.9 The Judge reduced the starting point to one of ten years imprisonment to reflect totality considerations.10 He then applied an uplift of 18 months to reflect your previous convictions for further sexual offending against young boys during 1992 and 1993.11 In June 1995 you were sentenced to three years imprisonment on two charges of having unlawful sexual connection with a male between 12 and 16 years of age and four charges of indecent assault on a boy aged between 12 and 16 years. That offending involved three young male victims, one of whom was related to you. Your offending against those victims was very similar in nature to the charges for which you were sentenced in 2014.
8 R v T [2014] NZHC 1618.
9 R v T, above n 8, at [38].
10 At [39].
11 At [40].
[24] From the resulting sentence of 11 years six months imprisonment the Judge allowed a discount of one year to recognise that you were anxious to seek treatment to address the causes of your offending.12 He also applied a discount of two years six months to reflect your guilty pleas.13 This resulted in the end sentence of eight years imprisonment.
Appropriate starting point for sentencing on all charges
[25] I accept the Crown’s submission that, had you also appeared for sentence on the present charges when you were sentenced in 2014, it is likely the Judge who sentenced you would have taken the present charge of sexual violation as the lead, or most serious, charge. This is because it involved sexual violation occasioned by the penetration of the victim’s anus with your penis. This is much more serious than any of the charges on which you were sentenced in 2014.
[26] There is also the distinct possibility in my view that, had you been sentenced on the present charges in 2014, the Judge would have imposed a sentence of preventive detention. The Judge considered whether he should impose that sentence in 2014 and described the position as being “finely balanced”.14 He ultimately imposed a finite sentence rather than a sentence of preventive detention but “not without some hesitation”.15
[27] I accept the Crown’s submission that, had you been sentenced on all charges in 2014, it is likely the sentencing Judge would have selected an overall starting point in the region of 17 years imprisonment. Mr Bamford accepts on your behalf today that this is so. This means the Judge would have added an effective uplift of four years imprisonment to reflect the present charges.
[28] It is now necessary to consider the issue of totality. This requires the Court to ensure the sentence is not wholly out of proportion to the overall gravity of the offending. As I have already observed, the Judge who sentenced you in 2014 reduced
12 At [43].
13 At [44].
14 At [66].
15 At [71].
the sentence from one of 13 years imprisonment to one of ten years imprisonment to reflect totality principles. This amounts to a reduction of approximately 23 per cent. Mr Bamford submits on your behalf that I should apply the same proportionate reduction to the new end sentence to reflect totality principles.
[29] The Crown contends it is necessary to take into account the fact that the present offending occurred well before the offending for which you were sentenced in 2014. It says a starting point of 14 years imprisonment is appropriate having regard to totality principles. Your counsel submits, using the same calculations as were used in 2014, that a starting point of no more than 13 years imprisonment is justified having regard to those principles.
[30] I take a slightly different view to that for which Mr Bamford contends. The present offending is more serious in nature than the earlier charges. For that reason I do not consider the same proportionate reduction is required. Furthermore, there was a significant gap between the present offending and that which began in 2006.
[31] For these reasons I consider the Crown is correct when it submits that a starting point of 14 years imprisonment is appropriate having regard to totality principles.
Uplift to reflect previous convictions
[32] The Judge who sentenced you in 2014 applied an uplift of 18 months to reflect the fact that you offended against three young male victims in 1992 and 1993. You plainly did not learn from the sentence of three years imprisonment you received for that offending in June 1995. I say that because the present offending must have occurred a short time after you were released in 1997 after serving that sentence. I consider a slightly greater uplift is required to reflect this fact. I apply an uplift of two years to reflect the fact that you were prepared to offend again within a short time after serving a sentence of imprisonment imposed in 1995 for similar offending.
Discounts
[33] From the resulting sentence of 16 years imprisonment it is necessary to apply the discounts the Judge applied in 2014 to reflect your guilty pleas and desire to rehabilitate. These came to a total of three years six months imprisonment.
[34] The Crown points out that matters have moved on in terms of rehabilitation since 2014. In 2017 you were exited from the Kia Marama therapeutic treatment programme because of inappropriate behaviour towards younger attendees of that programme. This means you now remain effectively untreated. I accept, however, Mr Bamford’s submission that this does not alter your willingness to be treated. Rather, it reflects the fact that treatment is likely to require significant efforts, not only on your behalf but also those of the persons or institutions providing the treatment. You still express a willingness to undergo treatment to address the underlying causes of your offending. Given that fact I see no principled basis on which I can interfere with the discount the Judge allowed you in 2014 to reflect your willingness to undergo treatment at that time. I therefore apply the full discount of three years six months as did the Judge in 2014. This produces a sentence of 12 years six months imprisonment.
[35] In addition, Mr Bamford contends on your behalf that you should receive a further discount to reflect the harsh treatment, isolation and deprivation you experienced during your formative years. These factors were not taken into account when you were sentenced in 2014. He suggests the sentence should be reduced by around 15 per cent to reflect them.
[36] The issues to which Mr Bamford refers were canvassed to some extent at your trial and also in the pre-sentence report prepared for sentencing today and in the psychological report prepared prior to your sentencing in 2014. In addition, your sister has sent an email to the Court outlining some of the issues you faced during childhood and adolescence. I do not propose to traverse them in any detail. You say you suffered physical abuse and that you were emotionally detached from your family. You had no real support network during your formative years when you were forced to confront emerging issues relating to your sexuality. Furthermore, you have had very few consensual sexual relationships. You say your offending has been driven by your
desire to re-create the positive feelings you experienced at the age of 12 or 13 years when you engaged in sexual activity with another boy who was the same age as you.
[37] I am satisfied that some aspects of your upbringing have had a causal influence on your offending over the years. Overall, however, I do not consider they were a substantial cause of your offending. I am prepared to reduce your sentence by 12 months to reflect those factors.
[38] The appropriate end sentence on all charges is therefore a sentence of 11 years six months imprisonment. Given that you are currently serving a sentence of eight years imprisonment this means a cumulative sentence of three years six months imprisonment is required to reflect your offending on the present charges.
[39] It is obviously a matter of significant concern, however, that the psychological report prepared prior to your sentencing in 2014 stated that you remain at high risk of offending again in a similar way in the future. The pre-sentence report indicates you remain untreated for a variety of factors. First, you were exited from the Kia Marama programme for the reasons I have already given. Secondly, once the present charges were laid in 2019 you were ineligible to receive treatment because you were on remand on charges to which you had entered not guilty pleas.
[40] The issue of further treatment is obviously an issue the prison and parole authorities will need to focus on over coming years. Depending on your response the Chief Executive of the Department of Corrections is also likely to give consideration to applying for an extended supervision order as the time for your release approaches.
Sentence
[41] On the charge of sexual violation by unlawful sexual connection you are sentenced to three years six months imprisonment. You are to serve that sentence cumulatively on the sentence of eight years imprisonment you are currently serving.
[42] On each of the remaining charges you are sentenced to two years imprisonment. You are to serve those sentences concurrently with each other and concurrently with the sentence on the sentence imposed on the charge of sexual
violation. The sentences are to be served cumulatively, however, on the sentence of eight years imprisonment you are currently serving.
Minimum term of imprisonment
[43] The Judge who sentenced you in 2014 made an order under s 86 of the Sentencing Act 2002 requiring you to serve five years of the eight year sentence he imposed before being eligible to apply for parole.16 The present charges relate to offending that occurred prior to the current version of the Sentencing Act 2002 that enables a minimum term of imprisonment to be imposed. However, it is clear that you are eligible for a minimum term of imprisonment by virtue of the principles discussed by the Court of Appeal in Robinson v R.17 It is not necessary for present purposes to analyse the statutory provisions that enable this to occur.
[44] Had a minimum term of imprisonment been of any practical effect, I would have imposed one simply to protect the community from further offending against you. I am satisfied, however, that you have already served a greater sentence than any minimum term I could impose. You would be eligible to apply for parole immediately notwithstanding any minimum term I might impose. I therefore see no utility in imposing any minimum term on the sentence of three years six months imprisonment. The focus from this point on should be how long you are required to serve of the overall sentence of 11 years six months imprisonment.
Suppression
[45] Up until now you have been subject to an interim order for the suppression of your name. That has remained in force because you indicated you wished to assemble material to justify a permanent order for suppression being made. This morning, however, Mr Bamford advises me on your behalf that he cannot realistically advance any material in support of an application for permanent name suppression. The interim order for the suppression of your name will accordingly lapse with immediate effect.
16 R v T, above n 8, at [45].
17 Robinson v R [2016] NZCA 188 at [13] – [19].
[46]Stand down.
Lang J
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