IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY CRI 2005-020-003954 THE QUEEN v ROBERT JOHN BROWN Hearing: 30 July 2008 Appearances: C R Walker for the Crown D H Quilliam for the Prisoner Judgment: 30 July 2008 SENTENCING NOTES OF ANDREWS J Solicitors: Elvidge & Partners, P O Box 609, Napier 4015 Counsel: D H Quilliam, P O Box 636, Napier 4015 R V BROWN HC NAP CRI 2005-020-003954 30 July 2008
[1] Mr Brown, you appear for sentencing today having been convicted on one charge of indecent assault on a young person under the 16, and two charges of indecent assault. You were found guilty by a jury in the District Court on 27 May 2008. [2] I note what you have said to me about your trial and your contention that the Crown has not proved the case beyond reasonable doubt, but that is not a matter that I can take into account when I am sentencing you today. I am sentencing you on the charges on which you have been convicted by a jury. [3] The victim of your assault on a person under 16, was 15 at the time of this offence. He had a summer job with your contracting company at the end of 2005. When you and he were driving to jobs together you asked him personal sexual questions which he tried to avoid. In about the third day of his job he went with you to a farm to do some work. He drove the tractor while you sat behind him. He said in his evidence that you kept resting your arm on his leg. He removed his leg away but you put your arm back a number of times. In evidence he said you then began rubbing his penis through his pants and asking him if it felt good. He said no, and shortly afterwards made the excuse that he felt sick so that he could leave work for the day. The next day he told his parents about what had happened and his mother called the Police. The second victim was a young lad you met when you were both in prison on remand in March 2006. He was 22 at the time. The first indecent assault charge related to an incident where, the evidence was, you rubbed his thigh and buttocks. The second decent assault charge related to an incident where, the evidence was, you took him in a bear hug from the side with a hug and rubbed your penis against him. [4] A victim impact statement has been received from both of the victims. [5] Your first victim said that the time it took for this case to go to Court was difficult for him emotionally. He said he has lost his trust in adults. He finds it stressful to be around older men and finds it hard to talk to new people. He has had trouble sleeping. He said he was scared to go out because he might be followed and
he has panicked every time he sees a blue 4x4 on the road. He said he has moved away from his home to avoid having to be near where this offending occurred. He has had difficulty talking to his family about things. He worries that people might believe what you have said and think that he has made the offending up. He is hurt by your continuing denial of the offending. [6] His mother said, in her victim impact statement, how her relationship with he son has been affected. She arranged the job with you and she continues to feel guilty for putting her son into the position where he was abused. She blames herself for what happened. She has struggled with your continued denial of what you have done and the feeling that you do not know, or care, about the damage that you have caused to her family. [7] Your second victim, in his statement, said that his experience has led to his feeling sick. He continues to be plagued by thoughts about the offending. He feels he has lost his innocence and the basic trust he had in people. He no longer trusts his own judgment. He said you tricked him into thinking that you were his friend. He said he did not want to say anything at first because he thought you were his friend. He did not want to be seen as a trouble-maker in prison. He then said that when the assaults continued and got more out of hand he had to tell someone. He said it took a lot of courage to notify the Prison Authorities because he was confused and embarrassed. He feels that you do not care about the effects of the offending has had on him. Pre-sentence report [8] I turn now to consider the pre-sentence report from the Probation Officer. [9] You are currently 46 years of age. You were living with your mother at the time of the offending against your first victim. You were operating a hay carting business with your father from 1990 until your father died and you continued to operate it until 2005. You told the Probation Officer that your father s death had a profound effect on you and caused you a lot of stress.
[10] You said you had a hard time at school because you disclosed your confusion about your sexual orientation to another boy and that information spread to other students and you were taunted. The Probation Officer said that you have held onto the resentment which you felt through to the present time. [11] It is reported that you have struggled to engage with others in a social setting and the Probation Officer said you have struggled with depression, particularly in the prison environment. [12] The Probation Officer commented that you exhibit exaggerated displays of anger at what you consider to be injustices perpetrated on you. Those displays appear to be linked to your inability to honestly acknowledge the extent of your offending behaviours. You have either claimed that your victims have lied or that they have led you on. You have said that you are prepared to undertake sexual offender treatment, but it is reported that you have not displayed the necessary acceptance of responsibility for your offending to quality you for entry into an appropriate programme. [13] The Probation Officer assessed you as being at high risk of further similar offending. This is because your motivation to address the factors contributing to your offending is low. As you are already in prison the Probation Officer does not, and could not, recommend a community based sentence. [14] You were sentenced to nine years imprisonment on 1 March 2006 on four counts of unlawful sexual connection on boys aged 12 to 16, and five counts of indecent assault on boys aged 12 to 16. Those offences were committed in 2004 and 2005. You also have a conviction for indecent assault on a boy aged between 12 and 16 but that dates from 1996. [15] Because preventive detention is sought reports from two appropriate health assessors have been provided. These addressed the likelihood of your committing a further qualifying sexual offence. I will leave those to address when I turn to consider whether to impose a sentence of preventive detention.
Process of sentencing [16] I turn now to the process of sentencing. I first talk to you about the general law relating to sentencing and the principles that I have to apply. I then have to decide what sentence is appropriate taking those principles into account. [17] I have to take into account the purposes of sentencing in particular to hold you accountable, to make you acknowledge your responsibility for what you have done, and to promote in you a sense of responsibility and acknowledgement of the harm that you have caused. I have to consider deterrence and protection of the community. I also have to denounce your offending, that is, to make it as clear as I can to you that your offending is not acceptable in New Zealand society. At the same time the purpose is to help you with rehabilitation and getting you back into the community as a useful member of it. Preventive detention [18] As you know, the Crown has asked the Court to consider imposing a sentence of preventive detention. The purpose of preventive detention is to protect the community from those who impose a significant and ongoing risk to the safety to members of the community. There are three requirements that must be satisfied before the Court can consider imposing preventive detention. [19] First, you must have been convicted of a qualifying sexual or violent offence. The offences on which you are before the Court today for sentence are of qualifying offences. [20] Second, you must have been 18 or older when the offences were committed. Clearly you were over 18 at the time of the offences. [21] Third, the Court has to be satisfied that you are likely to commit another qualifying offence upon your release at the expiry of a finite sentence. [22] When considering whether preventive detention should be imposed, the Court looks at whether there is a pattern of serious offending disclosed by your
history. The Court also looks at the seriousness of the harm to the community caused by your offending, at any information indicating that you have a tendency to commit serious offences in the future, and whether you have made or failed in any efforts to address the cause or causes of your offending. I also have to take into account the principle that a lengthy finite sentence is preferable and if that will provide adequate protection for society. [23] So the first issue is whether there is a pattern of serious offending. As you will recall, preventive detention was considered when Allan J sentenced you for sexual offending against three young male victims, on 26 June 2006. The Judge identified a distinct pattern of grooming behaviour by you. At an early stage in your relationship with each boy you raised questions relating to sex, and in particular sexual activity between males. You suggested that they try such activity. The Judge was satisfied that this was premeditated offending and that you set out to groom adolescent boys in order to facilitate your offending. You have followed that same pattern with the current victims. [24] The second question is as to the seriousness of the harm to the community caused by the offending. The victim impact statements that I have referred to today show the mental harm that your offending has caused your victims and their families. In 2006, the Judge was of the same view that that offending caused significant harm. [25] The third issue is to consider information indicating whether you have a tendency to commit serious offences in the future. To address this factor, I must return to the two health assessments and to the likelihood of your committing further qualifying offence. [26] The reports before the Court are from Dr Johnston, a Registered Psychologist, and Dr Barry-Walsh, a Forensic Psychiatrist. Both have emphasised your denial of most of your offending and your minimisation of the seriousness of the offending that you did admit. Dr Johnston concluded that you were at high risk of re-offending based on her interaction with you, and the result of several clinical psychological tests. She noted your willingness to participate in a sex offenders treatment programme but also said that your prognosis is poor because you are
unwilling to accept responsibility for your offending. Dr Barry-Walsh took what could be described as a more optimistic view about the possibility that appropriate treatment could reduce your risk of re-offending. He was reluctant to express any strong concluded opinion about the likelihood of your re-offending at the end of the sentence because the risk at that time is so dependent on treatment that you might undergo while serving a term of imprisonment. However, Dr Barry-Walsh said that without significant intervention or a personal change by you, you would be at a high risk of re-offending. [27] As to efforts to address the cause (or causes) of your offending, Dr Johnston recorded that after your April 2005 offending, you referred yourself to a local psychiatrist. However, you have offended since that treatment. You have indicated that you are willing to engage in sex offender treatment. However, both the probation officer and Dr Johnston expressed reservations that such treatment would be of any value until such time as you accept responsibility for your current and your past offending. [28] When considering whether a lengthy determinate sentence would be preferable, if it would provide adequate protection for society, in 2006 the Judge said that your case was finely balanced in respect of preventive detention. The Judge identified a number of factors that militated against a sentence of preventive detention. He concluded that you had never undertaken a formal course of treatment, that you have said you were prepared to accept help in addressing your sexual behaviour, and that the Court had available to it remedial weapons such as an extended supervision order at the end of the finite sentence. [29] Those factors remain relevant. You are currently serving a lengthy finite term of imprisonment. I note that that was imposed after the offending on which you have now been convicted and in respect of which I am to sentence you today. [30] I have concluded that significant weight should be given to the fact that you have still not had the benefit of intensive psychological treatment. I am advised that this will not be offered to you until you are nearing the end of your current term of imprisonment.
[31] Mr Quilliam has submitted to me in his written submissions that you have made it clear to him that you are willing to undergo whatever counselling is thought appropriate. Both Dr Johnston and Dr Barry-Walsh were of the view that you are unlikely to change your ways without such treatment. If you do undergo treatment, there is at least a chance that you would significantly reduce your risk of reoffending. I consider it appropriate that you be offered the appropriate psychological treatment. [32] As it was in 2006, the question whether you should be sentenced to preventive detention is finely balanced. However, in the end I have concluded, essentially for the same reasons as applied in 2006, that preventive detention is not appropriate. For me, the most significant factors are that the offending I am considering today occurred before you were sentenced in 2006, that you are at present serving a lengthy term of imprisonment, and that you have not yet been offered the appropriate psychological treatment. Finite sentence [33] I turn therefore to consider a sentence other than preventive detention. Although it is generally desirable to keep offenders in the community if that is practicable, it is clearly not practicable or indeed at all appropriate in your case. [34] There are general principles of sentencing that must be considered. I consider the gravity of your offending including the extent of your responsibility, the seriousness of your offending in comparison with other types of offences, and I take into account information provided about the effects of the offending on the victims. I also take into account the general desirability of maintaining consistency in appropriate levels and another factor I will have to take into account in your case is the fact that I am sentencing you today for offences that occurred at about the same time as offences for which you are already serving a term of imprisonment. There is therefore what has been referred to as the totality principle to take into account. [35] I have to consider whether there was anything in particular about your offending that is an aggravating factor, which would lead me to impose a more harsh
sentence, or whether there are any mitigating factors which would point to a lighter sentence. [36] In relation to the aggravating factors, I note that the offending against your first victim occurred while you were on bail in respect of the offending for which you were convicted in March 2006. The offending against the second victim occurred while you were in custody awaiting sentence in relation to that offending. [37] I also take into account the particular emotional harm suffered by your two victims, as shown in their victim impact statements. Also in relation in particular to your first victim, you were abusing your position of trust or authority as his employer and he was particularly vulnerable because of his age. I am in no doubt that your offending was premeditated and not spontaneous. [38] Those are the aggravating factors. I have not identified any mitigating factors in relation to your offending. [39] In deciding what is the appropriate sentence I select the most serious of the charges and impose sentence on that charge first. In your case, that is the charge of indecent assault on person under 16. [40] I have considered the sentence imposed in a case where the circumstances were somewhat similar to yours, although of course no two cases are ever exactly the same. I refer to the case of Bailey 1 considered by the Court of Appeal in July 2003. Mr Bailey had appealed against a sentence of preventive detention imposed after pleading guilty to one count of indecent assault on a 13 year old boy. Mr Bailey had offered work to the complainant and subjected him to sexual assault Mr Bailey had offended while on parole for a similar offence, and was subject to a condition preventing unsupervised actions with children under 16. He had seven previous convictions for indecent assault or similar indecencies. The Court of Appeal held that his offending at that level did not warrant a sentence of preventive detention without there first having been a lengthy finite sentence as in effect a final warning. In the end, a sentence of five years imprisonment was imposed. 1 R v Bailey CA 102/03 21 July 2003
[41] There are some similarities between your offending and Mr Bailey s. Both he and you were employers and therefore in a position of trust and in both cases the victim was given alcohol. Also in both cases the sexual assault was by touching the genital areas through the boy s clothes. Mr Bailey was in parole at the time of his offending and you were on bail, then on remand in custody. [42] There are also differences. Mr Bailey pleaded guilty at an early stage. His offending history was more serious and he had previously been sentenced to a term of imprisonment and had previously participated, with a poor response, in sexual offender programmes. [43] Mr Walker confined his written submissions as to today s sentencing to the question of preventive detention and that was what he addressed orally before me today. In relation to a finite sentence of imprisonment, which is what I intend to impose, Mr Walker submitted that taking all of the appropriate principles into account, including the totality principle, the end result should be that you would be sentenced to six months imprisonment to be served in addition to the term you are serving at present. [44] On your behalf, Mr Quilliam submitted that the focus should be on rehabilitative initiatives available which, he says, you seek, and that to a large extent the offences on which you are being sentenced today could be regarded as washing up charges that perhaps could have been dealt with at the same time as the offending for which you were sentenced in March 2006. [45] Were I to be sentencing you today on the three counts on which you were found guilty by the jury, without taking into account the sentence of imprisonment and the offences on which you were sentenced in March 2006, I would have sentenced you to imprisonment for two years in respect of the first victim and 12 months in respect of each of the charges involving the second victim. [46] However, what I now have to consider is what should be the total sentence that you should serve taking into account both the sentence that you are currently serving and the matters on which I am sentencing you today.
[47] I have concluded that it is appropriate to adopt the submissions made both by Mr Walker and by Mr Quilliam on your behalf and that is to impose a short period of imprisonment which is to be served on top of, that is in addition to, the sentence that you are currently serving. [48] Would you please stand. [49] Mr Brown, on each of the three charges on which you appear for sentencing today, you are sentenced to six months imprisonment. [50] Those three sentences are to be served concurrently but they are in addition to the sentence that you are currently serving. [51] The minimum period of imprisonment to which you are currently subject, remains unchanged. [52] Would you please stand down. Andrews J