Threadgold v The Queen
[2021] NZHC 1539
•25 June 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-000053
[2021] NZHC 1539
BETWEEN CLIFFORD JOHN THREADGOLD
Appellant
AND
THE QUEEN
Respondent
Hearing: 15 June 2021 Counsel:
P J Morgan QC for appellant A McConachy for respondent
Judgment:
25 June 2021
JUDGMENT OF KATZ J
[Appeal against sentence]
This judgment was delivered by me on 25 June 2021 at 2:30 pm
Registrar/Deputy Registrar
Solicitors: Eastside Law, Hamilton
Gordon Pilditch, Office of the Crown Solicitor, Rotorua Counsel: P J Morgan QC, Thackery Chambers, Hamilton
THREADGOLD v R [2021] NZHC 1539 [25 June 2021]
Introduction
[1] Clifford Threadgold pleaded guilty to charges of sexual connection with a young person1 and meeting a young person following sexual grooming.2 Judge P W Cooper sentenced Mr Threadgold to two years’ imprisonment.3 The Judge refused, however, to commute Mr Threadgold’s sentence to home detention.
Mr Threadgold appeals his sentence. The issues raised by his appeal are:
(a)Did the Judge err by applying an uplift for the grooming offence?
(b)Did the Judge err by placing too much weight on the victim impact statement?
(c)Did the Judge err by refusing to commute the sentence to home detention?
The offending
[3] On 31 July 2020, Mr Threadgold met the victim on an online dating app. The pair began communicating with each other through one of the private messaging platforms available on the app.
[4] The pair continued to message one another the following day. The conversation was centred around their respective ages, and the logistics involved with meeting each other to engage in sexual intimacy. Their messages included the following exchanges in relation to the victim’s age:
Threadgold: You are online late or early. Are you really 18? Would you be intimate with an older guy like me?
Victim: Well I’d like to think so. If I was like 14 would you still be intimate with me? Most people wouldn’t…
Threadgold: I can understand that. Especially after the recent reports of men getting caught and being charged with underage. If I said yes I would, you
1 Crimes Act 1961, s 134(1).
2 Crimes Act 1961, s 131B(1)(a)(i) and (b)(i) or (ii).
3 R v Threadgold [2021] NZDC 7599.
would probably think I was a pedo. I am not but have often wondered about being with someone mid-teens. I would be keen to hook up whatever your age.
Victim: So if I was 14 you’d still hook up with me? I’m not saying it in a bad way. I’m genuinely curious. But I get the whole reports thing, there have been a lot recently.
Threadgold: I would like to.
Victim: Well do you think I’m 14?
Threadgold: I have no idea.
[Victim then sends a photo]
….
Threadgold: I don’t want to offend but you could be, I think you are younger than 18 for sure….
Victim: Would that be a bad thing if I was? Not saying I am but is it bad?
Threadgold: No it wouldn’t be bad.
Victim: Well then I admit I’m younger than 18….
…
Threadgold: My worry is about being caught…
…
Victim: …I wouldn’t tell anyone that would go and tell the authorities.
Threadgold: It would have to be our secret
…
Victim: I’m still in school so I’m mostly only available on weekends…
Threadgold: I am free at weekends and you are 18 aren’t you [smiley face emoji]…
Victim: Yup I’m 18 [smiley face emoji]…
[5] Several hours later Mr Threadgold travelled from his home in Hamilton to meet the victim in her hometown, in order to have sexual intercourse with her. He booked Airbnb accommodation for that purpose.
[6] After checking in at his Airbnb, Mr Threadgold drove to a Service Station where he had arranged to meet the victim, at about 5.00 pm. He then drove her back to the Airbnb accommodation. While they were in the car, Mr Threadgold asked the
victim about school and what year she was in. The victim replied that she was a year 10 student. Mr Threadgold replied “Oh, so you are 14”.
[7] Upon arrival at the Airbnb, Mr Threadgold offered the victim something to eat and drink, and asked her if she wanted to have a shower. The pair then made their way to the master bedroom. Mr Threadgold had previously laid a towel across the bed to protect the bedsheets.
[8] Mr Threadgold and the victim then performed oral sex on one another. The parties attempted sexual intercourse, but only achieved partial penetration as Mr Threadgold was unable to maintain an erection. He and the victim then put their clothes back on and left the bedroom.
[9] At around 8.30 pm, Mr Threadgold dropped the victim outside one of her friend’s addresses. He then returned to the Airbnb.
[10] About a month later, on 30 August 2020, Mr Threadgold messaged the victim on the dating app to ask how she was doing. The victim did not reply. There was no further communication between the pair.
[11] When contacted by police, Mr Threadgold said that he felt isolated and alone after the COVID-19 lockdown and was craving any form of intimacy with another person. He accepted responsibility for his actions and pleaded guilty at the first available opportunity.
District Court sentencing
[12] In sentencing Mr Threadgold, Judge Cooper noted his absence of prior convictions and the letters filed in his support. Those letters described the offending as entirely out of character and outlined Mr Threadgold’s otherwise good character and exemplary work record.
[13] Judge Cooper considered the victim impact statement provided by the victim’s mother. (The victim herself did not make a victim impact statement). The victim’s mother described her daughter’s behaviour as having changed significantly following
the offending, including flashbacks, nightmares, panic attacks, anxiety, self-harming (including a suicide attempt) and reclusive behaviour.
[14] The Judge recognised that there was no tariff case for this kind of offending. In setting the starting point, the Judge had regard to:
(a)the significant age discrepancy (47 years) between the parties;
(b)the infrequency of the sexual conduct, being one encounter;
(c)the serious nature of the sexual conduct between the parties, including oral sex and a partially successful attempt at sexual intercourse;
(d)the grooming involved in the offending, although it was of a relatively short duration; and
(e)the severe impact of the offending on the victim.
[15] Judge Cooper adopted a starting point of three years’ imprisonment for the lead offence of sexual connection with a young person. The Judge then applied an uplift of four months for the offence of meeting a young person after sexual grooming.
[16] The Judge then applied a 15 per cent discount for genuine remorse (as detailed in a psychologist’s report) and rehabilitative prospects. A further discount of 25 per cent was applied for an early guilty plea. This brought the sentence down to two years’ imprisonment.
[17] The Judge then considered whether the sentence of imprisonment should be commuted to one of home detention. He concluded, however, that a sentence of home detention would not meet the sentencing needs of deterrence and denunciation, nor hold Mr Threadgold properly accountable for his offending. The offending, involving a 61-year-old man having sex with a 14-year-old girl, was “simply too serious for a home detention sentence to be imposed”. The end sentence was therefore two years’ imprisonment.
Did the Judge err by applying an uplift for the grooming offence?
[18] Mr Morgan QC submitted that the Judge erred by imposing a four month uplift for the grooming offence. As the parties were strangers, they had to communicate over the dating app in order to arrange a meeting. Mr Morgan submitted that the Judge therefore effectively engaged in double counting, as the conduct constituting the grooming offence was inherent in the sexual connection offence.
[19] In R v Davidson, the Court of Appeal observed that the offences of grooming and sexual connection with a young person are designed to protect young girls against predatory behaviour by adults.4 This was reinforced by the enactment of grooming as a separate offence.5 The Court commented that:6
Where a man considerably older than a teenager makes contact with young girls [through Internet chat rooms] and this leads to sexual offences against the girls, it needs to be clearly understood that sentences will be to the top end of the range.
[20] Independent offending under s 131B will therefore normally be seen as an aggravating aspect of the s 134 offending leading to a significant uplift in the starting point which would otherwise apply for s 134 offences.7
[21] In this case the grooming occurred over a very limited time period – only about a day. This was not therefore a case involving an offender gaining a child victim’s trust over an extended period. Nevertheless, there was a clear grooming element to the message exchanges. Rather than immediately disengaging once he realised that the victim was under 18, and quite possibly as young as 14, Mr Threadgold set about flattering the victim, reassuring her regarding the proposed sexual activity, and winning her trust. He told her that he liked the picture she sent through and found her “appealing”. In addition, they exchanged the following messages (after the victim had disclosed that she was a virgin):
4 R v Davidson [2008] NZCA 484 at [25(a)]. See also R v Misileki [2008] NZCA 513 at [17].
5 At [25(a)].
6 At [25(c)] citing Attorney General's Reference No 39 of 2003 (Wheeler) [2004] 1 Cr App R (S) 79.
7 At [28].
Victim: I’m hesitant because I’ve never been intimate with someone before, but I’d like to try. But promise me that if I get scared when we start that you will stop if I ask you to?
Threadgold: I promise. Honestly I am a very kind and caring person.
Victim: Ok, thank you. I just wanted to make sure.
Threadgold: I promise to treat you with respect.
Victim: Thank you. Then yes, I will be intimate with you.
….
Threadgold: It will be a wonder time for both of us.
Victim: I hope so, it’s definitely going to be an experience for me.
[22] The communications accordingly extended well beyond simply making practical arrangements, such as where and when to meet. The victim disclosed her youth, her sexual inexperience, and her hesitancy. This was met with reassuring responses from Mr Threadgold, which appear to have resulted in him gaining the victim’s trust to the extent that she was willing to engage in sexual activity with him. Without such reassurances it is quite possible that the subsequent sexual activity would not have occurred.
[23] I accept, however, that the grooming was of relatively short duration, as Judge Cooper acknowledged in his sentencing remarks. Taking these various factors into account, it is my view that a four month uplift for the grooming offending was within the available range.
Did the Judge err by placing too much weight on the victim impact statement?
[24] The victim did not herself provide a victim impact statement, but a statement was provided by her mother. Mr Morgan submitted that the Judge erred by placing too much weight on the victim impact statement. He submitted that this was a willing (albeit underage) victim who, from the victim impact statement, seems to have had pre-existing issues that are likely to have influenced her to engage in contact with Mr Threadgold. Her subsequent mental health issues are unlikely to be solely attributable to her brief interaction with Mr Threadgold.
[25] The respondent submitted that the Judge did not place improper weight on the victim impact statement. The purpose of s 134 of the Crimes Act8 is to protect girls and young women from predation by, usually, older men, the consequences of which are apparent from their victim impact statements.9
[26] I accept Mr Morgan’s submission (as did the Crown) that the victim’s mental health issues cannot be attributed solely to her sexual interaction with Mr Threadgold. Nevertheless, he must bear some of the responsibility for the subsequent deterioration in her mental health. Further, to the extent that the victim may have been mentally unwell prior to the incident, this increased her vulnerability. I accept that Mr Threadgold was likely unaware of any specific pre-existing mental health issues, but the fact that a sexually inexperienced 14-year-old was on a dating app and agreed to meet a stranger 47 years her senior for sex should have raised serious alarm bells.
[27] In my view it was appropriate for the Judge to take into account victim impact as one of the aggravating features of the offending. The Judge did not give disproportionate weight to this factor, resulting in a starting point that was too high. On the contrary, the starting point of three years’ imprisonment was entirely within the available range.
Did the Judge err by refusing to commute the sentence of imprisonment to home detention?
[28] The final (and key) issue on appeal is whether the Judge erred by refusing to commute the sentence of two years’ imprisonment to one of home detention.
[29] Mr Morgan submitted that the Judge failed to have proper regard to all of the principles and purposes of sentencing, instead focussing on the seriousness of the offending and the sentencing purposes of deterrence, denunciation and accountability. Countervailing considerations include that Mr Threadgold was aged 61 years; has no previous convictions at all; has been a contributing member of society all his life by means of his employment; has had a long-term marriage and brought up now adult
8 The offence of sexual connection with a young person.
9 R v Misileki [2008] NZCA 513.
children; was remorseful; pleaded guilty at the earliest possible opportunity; and has low prospects of reoffending.
[30] Section 16 of the Sentencing Act 2002 provides that when considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community. Further, the court must not impose a sentence of imprisonment unless it is satisfied that the sentence is being imposed for any or all of the following purposes, and those purposes cannot be achieved by a sentence other than imprisonment:
(a)holding the offender accountable for harm done to the victim and the community by the offending;
(b)promoting in the offender a sense of responsibility for, and an acknowledgment of, that harm;
(c)providing for the interests of the victim of the offence;
(d)denouncing the conduct in which the offender was involved;
(e)deterring the offender or other persons from committing the same or a similar offence; and
(f)protecting the community from the offender.
[31] The Court must also be satisfied that no other sentence would be consistent with the application of the principles in s 8 to the particular case.
[32]Counsel referred to the following cases in their submissions:
(a)In Bird v Police, the defendant was sentenced to seven months’ home detention on one representative charge of doing an indecent act on a
young person, and one charge of grooming.10 Mr Bird’s offending was considerably less serious than that in this case, involving touching the victim’s stomach with his hand on two separate occasions, and kissing her by giving her a “peck” on the lips. He was therefore charged with the lesser offence of doing an indecent act, rather than sexual connection.
(b)In Stewart v Police, the defendant pleaded guilty to seven charges of sexual connection with a young person, one of which was a representative charge.11 There were 10 or 11 occasions when sexual intercourse occurred, including one incidence of anal intercourse. The defendant was 43 years old, while the victim was 14 years old. A starting point of three years’ imprisonment was adopted, reduced to 18 months for mitigating factors. Home detention was refused. On appeal, Wylie J considered that the only appropriate sentence was one of imprisonment. The offending in Stewart was clearly more serious than in this case (although there was no grooming charge).
(c)In Berry v Police, the defendant pleaded guilty to one charge of sexual connection with a young person.12 Mr Berry was 19 years old and the victim was 13 years old. They made contact through Facebook. Shortly after, the two met in person and had consensual sexual intercourse in the victim’s bedroom. The day after they met at the house of a mutual friend and had sexual intercourse again. Ellis J imposed a sentence of nine months’ home detention. Berry v Police is similar to the present case insofar as the parties met via online messaging and engaged in consensual sexual intercourse. As Ellis J recognised, however, the six-year age gap “is at the lowest end of the spectrum.”13 The 47 year age gap in the present case renders it considerably more serious. Further, there was no grooming charge in Berry.
10 Bird v Police [2017] NZHC 1296 at [2] and [53].
11 Stewart v Police HC Rotorua CRI-2009-470-28, 16 September 2009 at [1].
12 Berry v Police [2014] NZHC 2852 at [1].
13 At [23].
(d)In Fowler v R, the 23-year-old defendant was sentenced to 12 months’ intensive supervision and four months’ community detention on three charges of sexual connection with a young person.14 Mr Fowler met the victim and her friend at a public library. He asked them to come back to his house. While at his house, the victim performed oral sex on Mr Fowler and they had sexual intercourse. They had sexual intercourse again the following day. Mr Fowler had mental health difficulties and was significantly closer in age to the victim than in the present case. There was also no charge of grooming. In addition, the sentencing response was tailored, at least in part, to reflect Mr Fowler’s mental health challenges.
(e)In R v Burdett, the 44-year-old defendant pleaded guilty to one charge of sexual connection with a young person.15 For a couple of months, Mr Burdett communicated with the 15-year-old victim by text messaging. The content of the text messages gradually took on a sexually provocative tone, including sexually explicit photographs. One night, Mr Burdett drove the victim to a speedway, where the parties had sexual intercourse in a secluded grassy area. The Court of Appeal held that an end sentence of two years and four months’ imprisonment was within range. Burdett has some similarities to this case, although Mr Burdett groomed the victim over a longer period.
(f)In R v Misileki, the 14-year-old victim was staying at her aunt’s property, where Mr Misileki (who was 26) also lived. 16 One evening, he woke her up and persuaded her to come to his room where he had sexual intercourse with her. Over the following days and weeks Mr Misileki sent the victim numerous text messages trying to persuade her not to disclose what had occurred. A starting point of three and a half years’ imprisonment was adopted on one count of sexual connection with a young person, with the end sentence imposed being
14 Fowler v R [2017] NZHC 1892 at [1].
15 R v Burdett [2009] NZCA 366 at [1].
16 R v Misileki [2008] NZCA 513 at [1].
one of two and half years’ imprisonment. Again, Misileki has some similarities to this case, in that it involved only one incident of sexual connection. On the other hand, the defendant was much closer in age to the victim and he attempted to persuade her not to disclose the offending over an extended period.
(g)In Fairbrother v R, the 19-year-old defendant was convicted of sexual connection with a 12-year-old girl.17 When staying on a marae the defendant lay next to the victim one night and, when everyone was sleeping, placed her hand on his penis for approximately 30 seconds. The following night the defendant took the victim to a secluded place, told her to take her pants off and bend over, and engaged in intercourse with her for a few minutes. On appeal, the defendant submitted that his young age, his lack of previous convictions and most especially his mental impairment made home detention the least restrictive appropriate sentence. The Court of Appeal held that the defendant’s two-year sentence of imprisonment, which the Judge imposed giving priority to the purposes of general and specific deterrence, was not manifestly excessive. However, due to a calculation error by the Judge, the sentence was reduced to one year and 10 months’ imprisonment.
[33] I assess Mr Threadgold’s offending as more serious than the three cases in which either home detention or intensive supervision were imposed (Bird, Berry and Fowler). I also note that one of those cases (Bird) did not include a sexual connection charge. Rather, the charge was of doing an indecent act on a young person. Of the two sexual connection cases (Berry and Fowler), the defendants were both relatively young. Mr Berry was 19 and Mr Fowler was 23 and suffered from mental health issues.
[34] As the Court of Appeal observed in Fairbrother, when the end sentence reached is one of two years’ imprisonment or less, the Court must make a considered and principled choice between the two forms of sentence (imprisonment and home
17 Fairbrother v R [2013] NZCA 340.
detention), recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.18 The Court noted in that case, however, that as the appeal before it involved the sexual abuse of a child the Judge was obliged to consider carefully the appropriateness of a sentence of home detention.19 In particular, the Court referred with approval to its earlier observation in Kennedy v R that:20
All sentences that are potentially in the range should be considered on their merits, although it will be recognised that the likely sentencing outcome for sexual offending against children is imprisonment.
(Footnote omitted)
[35] That does not mean, of course that there is a presumption that sexual offending against children will result in imprisonment (as the Court of Appeal confirmed in Masei v R), although it may frequently be required in such cases.21 Home detention is a significant sentence in its own right, being the second most restrictive sentence able to be imposed.22
[36] Here, the offending is obviously very serious, as the Judge noted. It involved sexual connection (sexual intercourse and oral sex by both the victim and the offender) between a 61 year old man and a somewhat troubled and vulnerable 14 year old girl, following a brief period of grooming. Even accepting that not all of the victim’s mental health issues can be attributed to the offending, there can be little doubt that the offending has had a detrimental impact on her mental health.
[37] Mr Threadgold had multiple opportunities to withdraw from further engagement with the victim, once he realised she was underage. However, he somewhat doggedly disregarded all the “red flags” (her youth, her inexperience, her hesitancy) in pursuit of his own sexual gratification. Mr Threadgold fully appreciated that his conduct was not only morally wrong, but criminally so, as evidenced by the messages that were exchanged. Rather than this causing him to reconsider his planned
18 At [30].
19 At [32].
20 At [32] citing Kennedy v R [2011] NZCA 569 at [8].
21 Masei v R [2016] NZCA 481 at [10].
22 Fairbrother v R [2013] NZCA 340 at [28].
course, he instead emphasised to the victim that they would need to keep their interaction secret.
[38] Against this, Mr Threadgold has led an exemplary life prior to the offending. At the age of 61, he has no previous convictions. He is genuinely remorseful and pleaded guilty at the earliest possible opportunity. I accept that he is at low risk of re-offending and imprisonment is not therefore necessary for the purposes of community protection.
[39] Nevertheless, in my view, the Judge did not err in declining to commute the sentence of imprisonment to one of home detention. Sexual crimes against children offend against the norms of a civilised society. They are accordingly viewed most seriously by Parliament, the courts and the community generally. This kind of offending requires a strong need for deterrence, which accords with the legislative intention to protect young people (if necessary, from themselves). That legislative intention underpins offences such as those of sexual connection with a younger person and meeting a person following sexual grooming.23 Sexual offending against children must be denounced in the strongest terms. Although each case will turn on its own facts, the Court of Appeal has made clear that the likely (but not inevitable) sentencing response to this type of offending will be imprisonment. This is reflected in the various cases I have summarised above. A sentence of imprisonment in this case is in line with the sentences imposed in those cases.
[40] I am satisfied that the seriousness of the offending is such that imprisonment is the only sentence that appropriately holds Mr Threadgold accountable for the harm done to the victim and the community, provides for the interests of the victim, adequately denounces his conduct, and meets the purposes of general and specific deterrence. I therefore consider that it was open to the Judge to impose a sentence of imprisonment, and that such a sentence cannot be said to be manifestly excessive.
23 R v Burdett [2009] NZCA 366 at [23].
Result
[41]The appeal is dismissed.
Katz J
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