THE QUEEN v ALEXANDER IAN CLARK [2003] NZCA 156 (23 July 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA144/03

THE QUEEN

v

ALEXANDER IAN CLARK

Hearing: 15 July 2003

Coram: Keith J

Hammond J

Paterson J

Appearances: T W Fournier and G Ferguson for the Appellant

M F Laracy for the Crown

Judgment: 23 July 2003

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

[1]

Mr Clark pleaded guilty, after depositions on presentation of an amended indictment, to one charge of indecent assault on a boy aged 16 years, and three charges of causing a poison or other noxious substance, namely isobutyl nitrite, to be taken by three young men including the victim of the indecent assault.He was sentenced to concurrent terms of two years three months imprisonment on the poisoning charge and a concurrent term of six months for the indecent assault and now appeals against that sentence.

[2]

It was submitted that the sentence was manifestly excessive because the Judge erred when he adopted a starting point of two years six months against a maximum sentence of three years.This was because this period was out of line with other comparative sentences and the Judge erred both in finding that Mr Clark was sexually motivated, and that there had been a breach of trust on the basis of victim impact statements which should not have been taken into account.

Background

[3]	Isobutyl nitrite is commonly called “Rush.”The sentencing Judge had read various reports relating to this substance, and noted it was described by experts as being popular among homosexual males.Ingestion or inhalation of Rush produces rapid highs during foreplay, can produce anal sphincter dilation and can heighten or prolong sexual climax.Those boys who gave evidence said it made them feel drowsy or dizzy or relaxed.
[4]	One of the young men who took Rush boarded at Mr Clark’s home and one has since died.The second youth was a friend of another boarder, and was also the victim of the indecent assault.This occurred on a hunting trip when Mr Clark, the victim and his brother, slept in a tent.The victim awoke to find Mr Clark hugging him in an inappropriate sexual manner.The third youth was a friend of the victim and he too was invited to the address by the appellant.All youths were 16 or 17 at the time of the offences.
[5]	As Mr Clark disputed the summary of facts, it was necessary for the Judge to make factual findings.He did this by reading the deposition statements and conducting a disputed facts hearing in accordance with the provisions of the Sentencing Act 2002.One of the victims and two other youths who had also taken isobutyl nitrite at Mr Clark’s house gave evidence.
[6]	The Judge made several factual findings;Rush was used in Mr Clark’s home; he encouraged the use of it; his continuous supply of Rush over a number of months came from a Christchurch sex shop;his encouragement for the boys to use it was generally after they had consumed significant amounts of alcohol which he supplied to them; on some occasions during the consumption of both alcohol and Rush he displayed pornographic videos;on the first occasion one of the victims used the drug it was administered against his will with a degree of physical coercion; Mr Clark explained the sexual effects of the substance to one of the victims; and when Mr Clark and others were affected by alcohol and Rush, he would make inappropriate sexual advances.
[7]	The Judge took into account victim impact reports, including statements from the parents of the deceased victim, notwithstanding Mr Clark’s counsel’s submissions that they should not be taken into account because the parents were not properly victims under the Act.
[8]	The probation report before the Judge noted that Mr Clark continued to deny both the sexual offence and that he went beyond the bounds of appropriate behaviour with the young men.It noted that Mr Clark denied coercing the youths, had no empathy for the victims, and did not accept responsibility for his offending.
[9]	The Judge stated the aggravating features included the number of victims, the coercion of one of them at least, the vulnerability of the victims, a breach of trust, Mr Clark’s sexual motivation, and the supply of copious quantities of alcohol.The breach of trust arose because the parents of one of the victims had gone to great lengths to ensure that Mr Clark was a suitable person to take over control of their son, and had meetings with him to satisfy themselves of this.As the parents had entrusted Mr Clark with their son’s care, the supply of alcohol and Rush to him was seen as a breach of trust.
[10]	In mitigation, the Judge gave some credit for Mr Clark’s guilty plea.He noted however that it had come “after far more sexual matters were withdrawn from an amended indictment”, and that Mr Clark was still, in the probation report, not accepting the indecent assault.The Judge said:

Any credit you have got must be tempered with the view that you do not exhibit any remorse and you also put three of the younger men through the further trauma of giving evidence yesterday.

[11]

The Judge assessed Mr Clark’s culpability as considerable and found that his motivation and resultant behaviour were insidious and reprehensible.A starting point of two and a half years was adopted and a three months credit given for the mitigating factors.This credit would have been greater had not Mr Clark put the boys through the trauma of giving evidence.The structure of the sentence was concurrent terms ofimprisonment of two years three months on each of the isobutyl nitrite charges, and a term of six months on the indecent assault charge.

Comparable cases

[12]	Counsel for Mr Clark submitted that a starting point of two and a half years is out of step with R v Accused [1991] 1 NZLR 275, and Akurangi v Police (HC Gisborne, AP15/97, 17.12.97, Tompkins J).Both these cases were prosecutions under s197 of the Crimes Act 1961, which makes it an offence where a person “wilfully and without lawful justification or excuse, stupefies or renders unconscious any other person.”The maximum term of imprisonment is five years.The relevant charges in this case were brought under s202(2) of that Act which carries a maximum sentence of three years.Under s202 it is not necessary to stupefy or render unconscious any person.
[13]	In R v Accused sleeping tablets were placed in coffee.Both the accused’s de facto wife and her daughter were affected and the accused committed an indecent assault on the daughter while she was so affected.He was convicted of stupefying his de facto wife and her daughter, and indecently assaulting and sexual violation by unlawful sexual connection with the daughter.He was sentenced to a total of four months imprisonment on three counts and convicted and discharged on the indecent assault.The Solicitor-General appealed.This Court held that administering a drug to the two complainants without their knowledge must be regarded seriously. The accused was in breach of trust in a family situation.This Court held that the offences “may well have attracted a substantial term of imprisonment, but this being a Crown appeal and having regard to the family support which weighed with the Judge and respecting his desire to show leniency, we consider a sentence of one and a half years imprisonment as appropriate on appeal in those circumstances”.Counsel submitted this was a more serious case than the present one and accordingly a starting point of two years six months is out of line.
[14]	In Akurangi the accused pleaded guilty to stupefying three children aged between nine and ten years.She had provided Cogentin tablets to them in exchange for cannabis.The District Court imposed a sentence of two years imprisonment which, on appeal Tompkins J found to be manifestly excessive.He considered the appropriate sentence to be one of 18 months imprisonment but substituted a term of 12 months imprisonment after giving an allowance for the guilty plea.
[15]	Crown counsel sought to distinguish R v Accused and Akurangi on the grounds that the present case relates to seven separate instances when Mr Clark made the substance available to the complainants.In the Crown’s view the more relevant authority is R v Hutchings (HC Rotorua, S1/96, 7.2.96, Kerr J).Hutchings pleaded guilty both to stupefying a 14 year old boy with intent to commit indecent assault and to stupefying his own sons.There was no suggestion that the stupefication of his own sons was sexually motivated.The Judge adopted a starting point of three years and imposed an effective sentence of two years after taking into account mitigating factors, which the Crown submitted, are not present in this case.
[16]	This Court has not suggested tariffs for cases under either s197 or s202.There have been few comparable cases, and the ones cited to us were brought under s197 and not s202 of the Crimes Act.In addition to the distinguishing feature referred to by the Crown, the offending in R v Accused appears to have been opportunistic and the offending in Akurangi was not sexually motivated.While a sentencing Judge should, where appropriate, seek to ensure relative consistency with a line of similar sentences, it is ultimately necessary to determine the appropriate starting point by taking into account the various circumstances of each case and measuring these against the sentencing principles now codified in the Sentencing Act 2002.Often, it will not be advisable to place too much emphasis on other sentences, particularly where there is only a limited number of them, and the maximum sentence is relatively low.

Sexual motivation

[17]	A central submission on behalf of Mr Clark was that the sentencing Judge misunderstood the effect of isobutyl nitrite.It was said that there was no disadvantage to the complainants in taking the drug as the effects of it do not weaken the ability to refuse consent.Mr Clark did not therefore cause Rush to be taken for the purpose of obtaining an advantage or committing an offence.He had described the effects of the drug to them, and while the victims may have become more adventurous, this was not because of any coercion on Mr Clark’s part.Further, it was submitted that none of the complainants described feeling vulnerable. Another important factor in considering the taking of the drug, in counsel’s view, was that it occurred in a group situation.
[18]	In summary, it was submitted that the chronic toxic effects of the drug are minor, the duration of the effects are brief, the effects of inhalation are predictable, and the complainants did not become vulnerable while under its influence.The substance was administered in an open way with correct information supplied by Mr Clark and, apart from one occasion, the substance was always consumed knowingly and voluntarily by the complainants.No offence was committed or was likely to have been committed because of the inhalation of the isobutyl nitrite.
[19]	Crown counsel did not accept that the Judge erred by incorrectly assessing Mr Clark’s sexual motivation.She referred to the Judge’s finding on sexual motivation which was in the following terms:

I think that on the basis of the evidence which I heard and accepted, and which has not been contradicted by you giving evidence, that it is fair to draw an inference that you were motivated by your own sexual needs and that your provision of Rush in the circumstances was to enhance your prospects of having young men accept your sexual advances.In the event, on the evidence, you were unsuccessful.

[20]	In the Crown’s submission, the Judge was entitled to accept that sexual motivation was an aggravating feature.Although this was not a case of Mr Clark trying to get sex without consent, it was a case of Mr Clark, by a combination of alcohol and isobutyl nitrite, disinhibiting complainants for limited periods of time.An environment was created in which the victims were not fully in control of themselves at all times, and in which Mr Clark by his own actions was capable of exploiting.
[21]	Crown counsel accepted that the drug had a limited short term effect with no lasting consequences for the health of the victims, but submitted that Mr Clark’s culpability was high.The sexual motivation purpose for providing the substance, the repeated administration of it, the forced use of it on at least one occasion, and its use with alcohol, made it appropriate that the starting point be high in comparison with the maximum penalty.
[22]	In our view, the Judge was entitled to treat Mr Clark’s sexual motivation as an aggravating feature.He held a disputed facts hearing at which Mr Clark elected not to give evidence.The Judge was entitled to draw the inference from the evidence that Mr Clark was sexually motivated when causing the complainants to inhale Rush.There was a basis on which he was entitled to make the finding that when Mr Clark and others were affected by alcohol and Rush, he would make inappropriate sexual advances.This is an aggravating factor to which the Judge was entitled to give reasonable weight.

Victim impact statement and breach of trust

[23]	It is convenient to treat together the ground that the Judge should not have read the victim impact statements from the parents of the deceased complainant, and that in the circumstances, he erred in determining there was a breach of trust.
[24]	The basic submission was that the parents of the deceased victim were not victims within the meaning of s4 of the Victims Rights Act 2002.We accept that, in accordance with the definition in s4 of that Act, the parents were not victims.There was no suggestion that the death of that victim was caused by the taking of Rush.
[25]	We also accept the Crown’s submission that the Judge was entitled to take into account the statements from the deceased’s parents, and that he did not use them inappropriately when sentencing Mr Clark.This is because the Judge took the statements into account “in terms of looking at the overall offending, and particularly one of the aggravating features which was the breach of trust”.In circumstances where the parents had gone to great lengths to ensure that Mr Clark was a suitable person to look after their son, the Judge found that it was a breach of trust to supply alcohol and Rush in the context in which he placed these actions.We can see no reason in principle which prevented him from taking this view.

Appropriate penalty

[26]

This is a case in which the maximum penalty for one offence is three years.However, there were three offences with three separate victims.In these circumstances, it is not unusual for the sentence, when considered on a totality basis, to be somewhat nearer the maximum than it would be for one offence.The Judge was entitled to give reasonable weight to Mr Clark’s sexual motivation.While the victims were over the age of consent, they were youthful and approximately 30 years younger than Mr Clark.Other relevant factors are that the Rush was administered at the same time as alcohol, against the background of pornographic videos, and the incidents were neither isolated nor opportunistic.The breach of trust in respect of one victim is also a factor. This offending, in our view, was relatively serious.In the circumstances we are of the view that the term of imprisonment imposed is not manifestly excessive.

Result

[27]	For the reasons given, the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington