Slater v The Queen

[2004] NZCA 313

IN THE COURT OF APPEAL OF NEW ZEALAND

CA211/04

THE QUEEN

v

JASON DOUGLAS SLATER

Court:Hammond, William Young and Chambers JJ

Counsel:P J Boylan for Appellant

G C de Graaff for Crown

Judgment (On the papers):     15 December 2004 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by William Young J)

Introduction

[1]       This appeal (now confined to sentence) has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions from the appellant and the Crown, have been received in accordance with rule 29 of the Court of Appeal (Criminal) Rules 2001 and considered by the members of the Court who have conferred and agreed upon this judgment. 

Background

[2]       On 25 March 2004 the appellant was found guilty by a jury in the District Court at North Shore on three charges of indecent assault.  The offences occurred on 20 July 2002, 28 July 2002, and 11 September 2002.  There were three separate complainants.

[3]       The offending followed a similar pattern.  In each case, the appellant purported to be a “model agent”.  Each complainant saw the appellant alone in premises which the appellant rented.  Each of them was encouraged to remove some or all of her clothing.  In each case the appellant unexpectedly touched the complainant in a sexual way.  The appellant picked at and later sucked on the nipples of the first complainant.  Throughout the process he also filmed her.  He pulled aside the underwear of the second complainant so as to expose her genitals (which he filmed), slapped her bottom and touched and squeezed her nipples.  He touched the bottom of the third complainant and then pushed her hips onto the desk saying words to the effect that “the only way to get on in this business is to give good head”. 

[4]       The impact of the offending on the complainants varied.  All were plainly upset at having being taken advantage of.  The first complainant, who was 28 at the time of the offending, would appear to have been the least affected. The second complainant, who was 17 at the time, has experienced anxiety, depression and lack of confidence.  She is particularly troubled by her belief that the appellant retains the film he took of her.  The third complainant, who was 18 at the time, was sufficiently upset by what was happened to run naked out of the room in which the offending took place to seek help.  She did not work for three months after the offence.  She has experienced (and at least until the time of sentencing continued to experience) adverse consequences associated with depression and anxiety and panic attacks.  As a result she has incurred significant counselling and medical expenses.  She has abandoned all hopes of a modelling career and is also cautious as to how she dresses.

[5]       The appellant is now 35.

[6]       He has no previous convictions other than for careless use of a motor vehicle. He has one child by marriage which has been dissolved.  He has worked in the banking industry and has also been a self-employed consultant providing advice and other services to retail business.  He has been an accomplished sportsman. 

[7]       At the time of offending he was on a sickness benefit; this for reasons associated with depression.  He suffers from a number of other medical conditions including diabetes.

[8]       The pre-sentence report writer assessed him at high risk of re-offending.  We will discuss this report in more detail later in this judgment.

The sentencing remarks of the Judge

[9]       In his sentencing remarks, Judge Wilson QC referred to the aggravating features associated with the offending:

[5.2]     I have no doubt that you deceived the complainants by leading them to believe that you were a legitimate model agent who would treat them professionally in the course of a genuine interview.  You played on their dreams of modelling success to entice them to remove their clothing.

[5.3]     I find there was a substantial degree of pre-meditation on your part.  You also breached their trust that you would treat them professionally in the course of a genuine modelling interview.  Prior to these offences you leased offices in different parts of town, you used false names, you placed advertisements and had business cards made out.  You obtained their co‑operation by speaking to them about non-existent, lucrative contracts and travel, which was never going to be made available to them.  You convinced each of them, contrary to the truth, that you were a real model agent and had only a professional interest in them.  You enticed them to undress under the guise of making them comfortable, naked, around other models when getting changed.  Once you had them in that vulnerable situation you carried out the indecent assaults, which in the case of these complainants was the real reason you had them there.

[10]     He noted mitigating factors as follows:

[7.1]     … I acknowledge at once that you have previous good character.  Your counsel has produced a number of references, which show that you are a person of some attainment.  They say you have achieved well at school and played sport at representative level, soccer and cricket.  You told the probation officer that you played handball and indoor soccer.  Your family say you have coached and led teams in the community and that you have achieved success in business.  The only direct confirmation of any of your business attainments is a letter showing you undertook customer satisfaction surveys satisfactorily between July 1999 and June 2001.

[7.3]     Your referees speak of you as one who within the family, is loved and respected as a good husband and devoted father to your daughter and step children.  Your former wife acknowledges that despite the separation and divorce, you have provided her and the children with emotional support when it has been needed you are regarded by your family as trustworthy, honest and friendly and with good intentions.  Some people writing testimonials found it difficult to believe that you could have been guilty of the offences, but the jury heard the evidence and the jury convicted you.

[7.4]     Your counsel submits that you sincerely apologised to the complainants for your offending and that you are very much aware of the harm, anguish and humiliation you have caused them, their families and your own family.

[7.5]     I must say at once that I regard these expressions with reserve.  A man who had experienced those feelings would have made an offer to make amends and would have made it clear well before today, whether the videos in fact existed, but you took none of those steps.  Mr Boylan says that you would willingly attend any course of counselling and other course of education that may be directed.  But to the probation officer you denied that you were guilty of any offending.

[7.6]     Your counsel has produced evidence of your diabetic condition, diagnosed in 1986 and your doctor assesses your diabetes as more difficult to control than the average diabetic.

[7.7]     I am however, satisfied on the evidence of the charge nurse at Mt Eden prison, that inmates with similar conditions are managed well within that environment.

[11]     The Judge referred to the pre-sentence report in the following terms:

[8.1]     I turn to the probation officer’s report.  Your counsel submits that there was a grave misunderstanding between you and the probation officer during the course of the pre-sentence interview.

[8.2]     The report writer reviews your personal, family, educational and work background and notes that since you continued to deny the offences, supervision and counselling are quite unsuitable.  An acknowledgement must precede treatment.  You are assessed as being of a high risk of reoffending on the Departmental Statistical Risk Assessment Scale, given the sexual nature and repetitiveness of the offences and what is said to be your low motivation to change.  The probation officer who wrote the report is in my view, suitably experienced in supervising sex offenders, has relevant training from the Kia Marama Sex Offenders Unit and the SAFE Sex Offenders’ Programme.  I do not accept your counsel’s submission that he is not qualified to advance the conclusions stated in the report.

[12]     The Judge then referred to relevant sentencing authorities and continued:

[9.4]     The Crown submits an appropriate starting point in your case is three years imprisonment.  As previously indicated, Mr Boylan submits that I should deal with you by way of supervision.  For the reasons stated by the probation officer and because of the seriousness of the effects of your offending, supervision is entirely inappropriate.  I am satisfied that the least restrictive penalty that I can impose for these offences is a sentence of imprisonment.  In fixing the term of that sentence I cannot take into account the time you have actually spent.  That will be deducted administratively.

[13]     He then concluded:

[10.1]   In this case the circumstances of the offences with three separate women, involving unwanted skin on skin contact, in circumstances where you misled them into believing that your interest in them was professional, conveys to me on the light of the authorities, that a starting point of two years and eight months should be adopted.

[10.2]   Against that starting point I give you credit for your previous good character.  I take into account that you may find the management of your medical condition more difficult in prison.  I acknowledge that you have made expressions of remorse but I must balance that against the serious effects, which your offending has had on the victims.

[10.3]   I allow a deduction of four months imprisonment to reflect the mitigating circumstances.

[10.4]   Accordingly, I sentence you to two years and four months imprisonment.  Stand down please.

Grounds for appeal

[14]     The written submissions filed by Mr Boylan covered much ground and are extremely lengthy.  Much of what was said is of little assistance in the present context as we are not engaging in a re-sentencing exercise.

[15]     We see those submissions as giving rise to three particular questions which warrant attention in this judgment:

1.The findings of fact made by the Judge as to the appellant not being a legitimate model agent, having deceived the complainants, and having acted with a substantial degree of premeditation.

2.Criticisms of the pre-sentence report.

3.The contention that the sentence imposed was outside the acceptable range.

The findings of fact made by the Judge as to the appellant not being a legitimate model agent, having deceived the complainants and having acted with a substantial degree of premeditation.

[16]     Mr Boylan was very critical of the Judge’s findings of fact.

[17]     These criticisms seem to us to be misplaced. 

[18]     At all material times the appellant was a sickness beneficiary.  He nonetheless rented three separate sets of premises and incurred substantial advertising expenses.  On occasion he used a false name.  The police who searched the last set of premises rented found nothing which was consistent with the operation of a genuine modelling business.  His conduct with the three complainants might, in itself, be thought to be inconsistent with a genuine attempt to operate commercially as a modelling agency.

[19]     The appellant did not give evidence at trial and exercised his right of silence when interacting with police.  There was thus not a scintilla of evidence originating from him to suggest that he was a genuine modelling agent.

[20]     The circumstances established by the Crown meant that, in the absence of evidence to the contrary - and as indicated there was no such evidence - the findings in question were inevitable.

Criticisms of the pre-sentence report

[21]     The pre-sentence report contained the following passages which are material to this head of Mr Boylan’s argument:

Mr Slater’s counsel suggested that these offences were not viewed in a serious category by the Court and that Mr Slater might benefit from a sentence of supervision with counselling conditions.  While lacking direction from the Court as to the Court’s position on seriousness, it is notable that the offences were repetitive.  As to supervision and counselling, treatment for sex offending commonly begins with acknowledgement of the actual offending.  Mr Slater’s denial of the offending by implication means that he does not consider that he has such a criminogenic need in need of intervention.

Mr Slater was assessed as a high risk of re-offending on the departmental statistical risk assessment scale given the sexual nature and repetitiveness of the offences and as having low motivation to change.  A term of imprisonment is considered appropriate.

It is noted that the Court has requested emotional harm reparation reports.  Contradictory to his denial of the offending, at interview Mr Slater stated that he wanted to apologise to the Court and to the victims about the current situation before the Court, and that he expressed remorse for any harm that the victims might have felt or suffered.

[22]     At the end of the report the following assertion was made:

… The report writer is experienced in supervising sex offenders, has relevant training from the Kia Marama sex offenders unit and the SAFE sex offenders programme, as well as over three years prior experience as an assessor and group facilitator for the SAFE programme.  Professional knowledge and experience specific to the area of sex offending was applied in this assessment process.

[23]     We were told by Mr Boylan in his written material that the pre-sentence report writer told the appellant at interview that he was a “serial (or similar) sex offender” and that he was going to go to prison, that the appellant in response denied the appropriateness of the “serial (or similar) sex offender” label and that this denial led to the “interview relationship” deteriorating.  Mr Boylan referred to an affidavit from the appellant which was to follow the submissions but which in fact has not been received.

[24]     Under s 28(3) of the Sentencing Act 2002, it was open to the appellant to “tender evidence on any matter referred to” in the report.  The appellant did not do so.

[25]     In those circumstances, it is too late to challenge in this Court what happened at the interview.  We might add that whether he likes it or not, the appellant is a serial sex offender and comments to that effect, if made, would not be unjustified.

The contention that the sentence imposed was outside the acceptable range.

[26]     There is one subtle aspect of the offending which requires mention. 

[27]     If the appellant had not engaged in the precise conduct which was directly the subject of the charges, the complainants would nonetheless have been extremely upset about what happened.  In each case, the complainant was tricked into removing her clothes, and in two of the cases, into acquiescing in being filmed.  As it turned out, and as the complainants soon recognised, this was simply for the sexual gratification of the appellant.  The appellant did not face charges associated with this aspect of his conduct.  In that context, it may be that the actual touching which led to the indecent assault charges added comparatively little to the overall impact of the appellant’s conduct on the three complainants.

[28]     It seems to have been considerations of this sort which led Mr Boylan to suggest that the criminality of the appellant’s offending was comparatively minor.

[29]     We think that this is an artificial way of looking at the appellant’s culpability.  In each of the incidents, there was an indecent assault.  In each case, that occurred in a context in which the appellant had, by tricking the complainant, put her in a position of real vulnerability.  It does not seem likely that the appellant intended to limit his sexual gratification to the purely voyeuristic.  In that context, the indecent assaults were not merely incidental to other objectionable, but not necessarily criminal, conduct but rather were an integral part of that conduct, all of which is therefore relevant to an assessment of his culpability.

[30]     In his submissions Mr Boylan referred to a significant number of sentencing decisions and, for the Crown, Ms de Graaff referred to some other decisions as well.  None of the cases to which we were referred dealt with offending which was similar to the present, the significant features of which were:

(a)The element of pretence and premeditation associated with the appellant claiming to be a modelling agent.

(b)The serial nature of the offending.

(c)The filming of two of the complainants (particularly the filming which was associated with, and part and parcel of the indecent assault on the second complainant).

[31]     The offending was plainly serious and premeditated.  Given its serial nature and the element of skin on skin contact, the sentence imposed by the Judge was well open to him.

Result

[32]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington