The King v Bernard Raymond Stothers

[2022] NZHC 3456

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-063-2644

[2022] NZHC 3456

THE KING

v

BERNARD RAYMOND STOTHERS

Hearing:

15 December 2022

Appearances:

A McConachy for Crown

T Braithwaite for Defendant

Sentence:

15 December 2022

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Rotorua

R v STOTHERS [2022] NZHC 3456 [15 December 2022]

[1]                 Mr Stothers, you appear for sentence having pleaded guilty to representative charges of committing an indecent act on a child under 12 years of age,1 sexual violation by unlawful sexual connection involving digital and oral penetration (x 2)2 and two charges of sexual violation by rape.3 The maximum sentence on the first of those charges is ten years imprisonment whilst the maximum sentence on the remaining charges is 20 years imprisonment.

[2]                 You initially denied the charges and only entered your guilty pleas shortly before a trial was scheduled to commence in the District Court. You were committed to this Court for sentence because the Crown indicated it would seek a sentence of preventive detention.

The offending

[3]                 Your offending is summarised in a lengthy summary of facts. The victim of your offending was your stepdaughter. Your offending against her commenced in 1989 when you entered into a relationship with her mother. The victim was just three years of age at this time. From that time on you regularly committed numerous indecencies on the victim. I do not propose to traverse the nature of these. It suffices to say that they included both digital and oral sexual connection on numerous occasions.

[4]                 You sexually violated the victim by raping her for the first time when she was just eight years of age. Thereafter, you regularly raped her until she was 31 years of age. The only gap in the offending occurred when she moved away from home in 2001 at the age of 15 years. The offending resumed in 2007 when she was 21 years of age. Thereafter, you raped her on a regular basis for a further period of ten years. In 2009, she bore a son to you as a result of one of these incidents of rape. You used the birth of her son as a form of manipulation by threatening to take her son away from her if she did not comply with your sexual demands. You also threatened to post photographic material of your victim engaging in sexual activity on the internet if she refused to do what you wanted.

1      Crimes Act 1961, s 132(3).

2      Section 128(1)(b).

3      Section 128(1)(a).

[5]                 The victim ultimately went to the police in 2018 and underwent a detailed evidential video-taped interview. During this she described the manner in which you had initially groomed her as a child and then offended against her in numerous different ways both as an adolescent and an adult.

[6]                 The principal issue I am required to determine today is whether you should receive a lengthy finite sentence of imprisonment or the indeterminate sentence of preventive detention. The Crown contends a sentence of preventive detention is the only appropriate response to the culpability of your offending and the level of risk you pose of future offending. Your counsel contends that a lengthy finite sentence of imprisonment is sufficient to punish you for your offending and to encourage you to undertake rehabilitative steps.

[7]                 I propose to consider first the finite sentence that would be imposed. Having undertaken that exercise, I will determine whether a sentence of preventive detention is appropriate.

Finite sentence

Starting point

[8]                 Your offending involves numerous aggravating features. The most obvious of these is that you were prepared to sexually abuse a very young child who was a member of your household. This involved a gross breach of trust towards a defenceless and vulnerable victim. The fact that sexual abuse occurred on a regular basis for such a lengthy period is a further aggravating factor. In addition, you obtained sexual gratification by grooming your victim when she was a child and by threats and intimidation when she was an adult. The offending also took numerous different forms.

[9]                 Your actions have caused incredible harm to the victim and to members of her family. You heard the victim read her victim impact statement to the Court today. This was a heart-rending, yet measured, exposition of the effects that your offending has had on her. Amazingly, she seems to have come through this ordeal incredibly well, although she has detailed the numerous and serious long-standing and ongoing effects

your offending has had on her. Your offending has also caused enormous harm to the wider family. Victim impact statements from other members of the family reveal the distress, hurt and pain your offending has caused for all members of the family.

[10]              Both counsel agree that your offending falls within Band 4 identified in        R v AM, the guideline judgment of the Court of Appeal for sexual offending.4 This is not surprising given the fact that the Court of Appeal observed that the paradigm case in this band will be the repeated rape of one or more family members over a period of years.5 Offending within this band will attract a starting point of between 16 and 20 years imprisonment.6 Cases that involve a breach of trust of vulnerable victims and that lead to severe impacts on the victims are likely to fall at the higher end of the band.7

[11]              The Crown submits I should begin by selecting a global starting point on the first four charges, which relate to offending that occurred between 1989 and 2002. These include the representative charge of raping the victim when she was between the ages of eight and 15 years. The Crown submits a starting point of 19 to 20 years imprisonment is appropriate for this offending.

[12]              The Crown contends that the final charge of raping the victim between 2007 and 2017, when she was an adult, justifies a starting point of 14 years imprisonment on a standalone basis. Taking into account totality considerations the Crown says a global starting point of between 25 and 28 years imprisonment is warranted.

[13]              Your counsel submits there is no need to go beyond the range identified by the Court of Appeal in R v AM.8 He says the starting point of no more than 20 years imprisonment is appropriate.

[14]              I have concluded your counsel is correct on this point. Perhaps the most serious case of sexual offending on young people I have been able to find is that of

4      R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

5 At [109].

6 At [90].

7      At [111]-[112].

8      R v AM, above n 4.

Taimo v R.9 This involved sexual offending for approximately 30 years against no fewer than 17 young male victims. The sentencing Judge took a starting point in that case of 23 years imprisonment. The Crown points out that your offending occurred over a lengthy period, but that was also the case in Taimo.

[15]              The Crown has been unable to point to any other case involving a single victim in which a starting point of more than 20 years imprisonment has been applied. I acknowledge that the offending when you were an adult deserves recognition but I consider a starting point of 20 years imprisonment adequately recognises this. As the Court of Appeal said in R v AM, band 4 is reserved for cases of multiple incidents of offending against one or more members of a family. Your offending falls plainly within that description. I therefore take a starting point of 20 years imprisonment on all charges.

Uplift for aggravating factors

[16]              You have previous convictions for sexual offending against your sister in 1988 and against your daughter in 1998. Both were between the ages of 12 and 16 years when the offending occurred. You received a sentence of 12 months supervision on  4 November 1988 for the former and a sentence of 12 months imprisonment on 16 November 1998 for the latter. The Crown contends an uplift should be applied to reflect the fact that you continued to offend against the present victim after you had already served sentences imposed for similar types of offending. I accept this submission. I would apply an uplift of 12 months to reflect this fact.

Mitigating factors

[17]              If a finite sentence were to be imposed you would be entitled to credit for your guilty pleas, but these were entered at a late stage. However, I acknowledge they saved the victim the added trauma of giving evidence at a trial before a jury. The level of discount is also tempered to some extent to reflect the fact that it is evident that you still refuse to accept some responsibility for your offending. I would allow a discount of two years one month, or around ten per cent, to reflect this factor.

9      R v Taimo [2019] NZCA 427.

[18]              Your counsel has also provided me with a report tendered under s 27 of the Sentencing Act 2002. The report supplements the information contained in the two health assessors’ reports that I have obtained to assist in determining whether to impose a sentence of preventive detention. The s 27 report reveals that you had an extremely challenging childhood. Your mother was a heavy gambler and your father had issues with alcohol abuse. When he was intoxicated, he would inflict violence on you on a regular basis. Your mother did the same. These issues led to you and your two younger brothers being placed in a state-run institution when you were just nine years of age.

[19]              You remained in state care for a period of four years, during which time you were subject to violence regularly at the hands of both supervisors and other residents. You were also sexually abused yourself by another boy who was living at the institution. I have no doubt that these experiences played a considerable role in your psychological makeup in later years. They also resulted in you struggling to form relationships. This is reflected in the fact that, although you have fathered two children of your own, you have no relationship with them and have played no part in their lives. Apart from three early relationships in your teenage years, your only other relationship was that with the victim’s mother. This lasted for approximately 15 years.

[20]              You made little academic progress at school and were still in Year 9 at the age of 14 years. You were ultimately expelled when you were absent from school for a month following your grandmother’s death. After leaving school you drove trucks, worked as a bush contractor and obtained employment as a farm worker. A former employer noted your lack of motivation, responsibility and commitment to work. However, it does not appear that drugs and alcohol have played any significant role in your life or in relation to the present offending.

[21]              I would provide a further discount of two years one month, or approximately ten per cent, to reflect the challenges you faced in your childhood and youth. These were beyond your control and most probably contributed to your decision to become involved in the present offending.

End finite sentence

[22]              It follows that, if a finite sentence was to  be  imposed, it  would be one  of  16 years ten months imprisonment.

[23]              I would also require you to serve a minimum term of ten years imprisonment before being eligible to apply for parole. This is because I am satisfied your offending engages all of the factors listed in s 86(2) of the Sentencing Act 2002. If a minimum term was not imposed, you would be eligible to apply for parole after serving just over five and a half years of your sentence. I do not consider this would adequately recognise the sentencing principles of denunciation, deterrence and the need to hold you responsible for your offending. Nor would it adequately protect the community from further offending by you.

Preventive detention

Approach

[24]              You are eligible for a sentence of preventive detention because of your previous convictions and your convictions on the present charges.

[25]              There is an added complication to this issue because some of your offending occurred before the Sentencing Act 2002 was passed. A sentence of preventive detention may only be imposed for offending that preceded that legislation where a defendant qualifies for such a sentence under both the Sentencing Act and s 75 of the Criminal Justice Act 1985 (the CJA). This was the legislation in force when you committed the first four offences between 1998 and 2002.

[26]              Under s 75 of the CJA a sentence of preventive detention could only be imposed where the Court was satisfied it was expedient for the protection of the public that the offender be detained in custody for a substantial period.

[27]              The remaining charge is governed only by the Sentencing Act, which requires the Court to determine whether it is likely the offender will commit another qualifying

offence upon release from prison.10 In considering whether to impose a sentence of preventive detention the Court is required to take into  account  the  factors listed in  s 87(4) of the Act. It must then determine whether to impose a finite sentence of imprisonment or the indeterminate sentence of preventive detention. The underlying concern the Court is required to address is whether the offender is likely to remain an ongoing risk to the safety of the community so that the imposition of a sentence of preventive detention is necessary.

[28]              A sentence of preventive detention is not, however, a sentence of last resort. In other words, it is not a sentence that can only be imposed after other sentencing options have been tried without success.

The factors listed in s 87(4) of the Sentencing Act 2002

[29]The factors I am required to take into account under s 87(4) are as follows:

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

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

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

(d)the absence of, or failure of, the offender’s efforts to address the causes of the offending; and

(e)the principle that a finite sentence of imprisonment is preferable if this provides adequate protection for the community.

Any pattern of serious offending?

[30]              Your criminal history includes the convictions in 1988 and 1998 for indecently assaulting your 12 year old sister and 15 year old daughter. You were 21 years of age in 1988 and 31 years of age in 1998. Your history now also includes the present

10     Sentencing Act 2002, s 87(2)(c).

offending, which occurred over a very lengthy period when you were between 22 and 50 years of age.

[31]              The nature and extent of the present offending is sufficient, in my view, to establish a pattern of serious offending even putting to one side the earlier offending against the other two victims. As the psychologist notes, your offending trajectory reflects a pattern of consistent and serious sexual offending with familial female child victims. The relevance of the earlier offending is that it demonstrates that the present victim is not the only person against whom you have offended. You have been prepared to sexually abuse no fewer than three members of your immediate family.

[32]              There is no question in my view that your history over the last 30 years discloses a pattern of serious sexual offending.

Seriousness of harm to the community

[33]              It goes without saying that sexual offending of this nature and magnitude causes incredible harm not only to the victims directly affected by the offending but also to the community as a whole. It leads to a breakdown in trust by persons responsible for the care of young females. The harm to the victims themselves is usually incalculable.

Information indicating a tendency to commit serious offences in the future

[34]              In considering this issue I have been assisted by detailed reports prepared by Dr Neeshi Singh-Pillay, a registered counselling psychologist, and Dr Julie Norris, a forensic psychiatrist. Both have concluded you are at high risk of reoffending in a sexual way upon your release from prison. They also note that you minimise the seriousness of the offending that occurred when the victim was younger than 16 years of age. You now say that no penetrative sexual activity occurred during this period.  It has also been suggested that I should take into account material not referred to in the summary of facts that may support an argument that the offending when the victim was an adult may have been consensual. These arguments are clearly inconsistent with both your guilty pleas and the summary of facts on which you entered those pleas. I decline to go beyond the summary of facts as a matter of sentencing principle.

Furthermore, it is a matter of obvious concern that you now appear to be minimising the gravity of your conduct towards the victim.

[35]The psychiatrist, Dr Norris, concludes as follows:

127.      At the time of this assessment, it was unclear what specific warning signs would indicate an increase in the likelihood of Mr Stothers sexually reoffending. Certainly, if he had contact with a younger female, either through friends or through another intimate relationship, there is a significantly high risk that Mr Stothers would again reoffend.

128.      In my clinical opinion, without treatment, Mr Stothers continues to present with a high risk of sexual reoffending against pre-pubertal children, pubertal girls, and adult women with whom he has regular contact, particularly when in a parental or adult leadership role.

[36]              Dr Singh-Pillay, the psychologist, used several actuarial instruments to assist in determining the ongoing level of risk that you present. The results suggest that you are at very high risk of sexual offending in the future. Dr Singh-Pillay notes that your persistent offending against several children over an extended period of time suggests that your motivating factor was not about opportunity or emotionality. Rather, it was driven by your covert proclivity and predilection for sexual offending against children.

[37]Dr Singh-Pillay concludes:

42. Based on static and dynamic risk assessment, structured clinical judgment and his elevated scores on the ASRS-R and VRS-SO [actuarial instruments], Mr Stothers is assessed as being well above average risk of further sexual offending within five years of release from prison. Mr Stothers’ risk will likely endure in the medium to long term given the pervasiveness of his offending and that the context of the offending is most likely to be against known female child victims where he has unsupervised access and has groomed them. Mr Stothers is yet to complete any rehabilitation for his dynamic risk factors, but appeared motivated for intensive treatment which, if meaningfully and authentically engaged in, could result in a reduction in risk. Mr Stothers’ current presentations suggests that he may have expectations to complete treatment without significant effort. However, intensive treatment is likely to be challenging for him given his elevated personality features as well as his denial and cognitive distortions that have been entrenched over years of rehearsal. Post-treatment, Mr Stothers would need a considerable period of consolidation, working on a reintegration plan that stepped down to community placement, dependent on his progress. Given Mr Stothers’ persistent and enduring sexual deviance over an extended period of time, as well as his response to prior sanctions and offer of treatment, his ability to self-manage in the community in the absence of external monitoring, appears less positive and would need to be cautiously considered at a point when rehabilitation has been completed.

Efforts by the defendant to address the offending

[38]              To date you have undertaken no formal efforts to address the causes of your offending. This is no doubt because your previous sexual offending resulted in a sentence of supervision and a relatively short sentence of imprisonment. Your counsel submits that, until you are given an opportunity to address the causes of your offending, it would be wrong in principle to impose a sentence of preventive detention.

The principle that a lengthy determinate sentence is preferable if it provides adequate protection

[39]              This factor speaks for itself. It is an acknowledgement that, where the public can be adequately protected by a sentence short of preventive detention, it is preferable that a finite sentence to be imposed.

Conclusion

[40]              Without intensive treatment you are undoubtedly at high risk of sexual offending upon your release from prison. The targets of such offending are likely to be young girls with whom you come into contact. Having reached that conclusion it is necessary for me to determine whether I should exercise my discretion in favour of a finite term of 16 years ten months imprisonment or the indeterminate sentence of preventive detention.

[41]              The strongest argument against a sentence of preventive detention is that you have never had the opportunity to address the causes of your offending. Furthermore, you are now 55 years of age. By my calculations, taking into account the time you have already spent in custody, you will be 70 years of age at the expiration of the finite sentence. One would normally expect a male offender of this age to have less sexual drive than might be the case with younger offenders.

[42]              In this context your counsel refers me to Taimo.11 In that case the offender was 56 years of age when he was sentenced to 22 years imprisonment. This meant he would be 78 years of age when he was released. In addition, he suffered from poor

11     R v Taimo, above n 9.

health. In that case the sentencing Judge considered these factors, together with several others, justified the imposition of a finite sentence of imprisonment rather than preventive detention. The Court of Appeal was ultimately not persuaded this was wrong.12 Your counsel suggests I should follow the same approach in your case.

[43]                However, it is evident from the material contained in the reports that the underlying causes of your offending are likely to be complex and deep-seated. They will inevitably require considerable effort both on your part and that of the prison and health authorities to address. Without meaningful therapeutic intervention there is little or no prospect that the community will be safe from you in the future.

[44]               As I have already observed, you appear to minimise the seriousness of the present offending. This suggests to me that you do not possess genuine insight into the causes and effects of your offending. I acknowledge that it is early days so far as you are concerned. However, I am concerned that this approach to your offending suggests you are unlikely to engage in a meaningful way with such therapeutic measures as may be offered to you in prison. You may seek to serve any finite sentence that might be imposed on you without engaging meaningfully with those measures. In that event you would be released into the community at the expiry of your sentence without the underlying causes of your offending having been addressed.

[45]              Your counsel is undoubtedly correct when he says that you would be a candidate for an extended supervision order upon your release from prison. An extended supervision order would impose restrictions on you so as to minimise the risk of further offending. This would no doubt go some way towards preventing you from coming into contact with potential victims. However, it would not address the underlying causes of offending.

[46]              I have concluded the only way in which you will engage meaningfully with rehabilitative processes is to know that you will not be released from prison until this occurs. I consider that a sentence of preventive detention would therefore provide you with an incentive to engage with such therapeutic measures as may be offered to you in prison. I am therefore satisfied the safety of the community requires the imposition

12 At [55].

of a sentence of preventive detention rather than a lengthy finite sentence of imprisonment.

[47]              For the same reasons I am also satisfied in terms of s 75 of the Criminal Justice Act 1985 that you should be detained in custody for a substantial period.

Minimum term of imprisonment

[48]              If the Court imposes a sentence of preventive detention it must also specify the minimum term of imprisonment the offender is required to serve before being eligible to apply for parole.13 This must be the longer of the minimum term required to reflect the gravity of the offences and the minimum term required for the purposes of the safety of the community.14 The latter is to be assessed having regard to your age and the risk posed by you to the community.

[49]              In your case I consider the appropriate minimum term of imprisonment is ten years, being the minimum term I would have imposed if I was to impose a finite sentence.

Result

[50]              You are sentenced to preventive detention on all charges. You are ordered to serve a minimum term of ten years before being eligible to apply for parole.

[51]Stand down.

Lang J

13     Sentencing Act 2002, s 89(1).

14     Section 89(2)