BRADBURY v R [2005] NZCA 49 (16 March 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA342/04

THE QUEEN



v



BENJAMIN BARRIE BRADBURY

Hearing: 7 March 2005

Court: Anderson P, Heath and Doogue JJ

Counsel: P J Kaye for Appellant
K Raftery for Crown

Judgment: 16 March 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Anderson P)

Introduction

[1]	The appellant was convicted on his trial before a District Court Judge, Thorburn DCJ, and jury, of a number of offences relating to young women. On 30 March 2003 he went to a North Shore beach where teenagers had gathered for their own amusement. The appellant, at 27 years of age, was some 10 years or more older than the young people. He made lewd comments to young females, and in respect of the first complainant he indecently assaulted her by grabbing her breasts. He later repeatedly touched the girl’s bottom. At one stage he approached a 17 year old girl who was sitting on a swing. He asked her for a hug, and when she tried to evade his advance he reached out and touched her breasts, making an obscene comment as he did so. Another complainant, aged 15, was approached by the appellant, who said that he liked her skirt. He put his hand up her skirt, into her underwear and attempted to digitally penetrate her. Later in the evening he touched her bottom also. When another member of the young person’s group remonstrated with him the appellant threatened that person with a knife.
[2]	The appellant’s conduct on 30 March 2003 resulted in three convictions for indecently assaulting a female over the age of 16 years, two convictions for assaulting a female between the ages of 12 and 16 and one count of carrying an offensive weapon.
[3]	A week later, on 6 April 2003, the appellant abducted a 15 year old girl from a public street, at knife point. He took her to his residence where he threatened her, stripped her and raped her.
[4]	The appellant had previously been convicted of sexual offending. In 2000 he pleaded guilty to two counts of indecently assaulting a six year old girl and was sentenced to 18 months imprisonment. Following conviction for the matters presently under appeal he alleged that his guilty plea on the earlier matter was, in effect, forced on him by his counsel. He similarly shirks responsibility for his more recent offending and has filed an appeal against conviction although no grounds of appeal have been disclosed other than an assertion on his formal notice of appeal that the trial Judge made a number of significant errors in summing up. He has also appealed against sentence on the grounds of manifest excess and Mr Kaye has advanced typically thoughtful submissions in that respect. He did not feel able, however, to advance the appeal against conviction. The appellant, who was permitted to be present at the conduct of the appeal against sentence, asked for the appeal against conviction to be adjourned so that he might seek to obtain a second opinion. The indulgence of an adjournment was granted for that purpose.
[5]	The appellant’s pattern of offending invoked the possibility of a sentence of preventive detention and the District Court Judge declined jurisdiction. Sentencing was therefore remitted to the High Court where Priestley J dealt with it. That Judge had the benefit of a very full pre-sentence report by an experienced Probation Officer as well as reports from a forensic psychologist and a forensic psychiatrist. These disclosed a fairly difficult upbringing in physically abusive environments both in New Zealand and the United Kingdom. It would seem that the appellant’s sexual experiences began at a young age, 10 years, and continued with considerable variety and frequency. His highly libidinous nature was far from restrained by extraordinary patterns and levels of alcohol consumption. These factors in conjunction with resolute denials of responsibility indicate a risk of reoffending but not to an extent that persuaded Priestly J to impose preventive detention. But the perception of risk was not at all irrelevant to the High Court’s assessment of the appropriate sentence. Priestley J was of the view that the totality of offending warranted an overall sentence of 13 years imprisonment and that there should be a minimum non-parole period of seven years.

The structure of the High Court sentence

[6]	Priestley J expressed the opinion that the facts which emerged at trial and the matters traversed in the various reports show that the appellant had no qualms about sexually interfering with women who were strangers to him and that he regarded young women as sex objects. He considered the offending to be very serious and warranting a stern response which would give priority to the need both to denounce the conduct and to ensure public safety, the more so because of the appellant’s denials which the Judge considered "fanciful". He recorded how the victim impact reports show the serious effect on the young women involved and the potential for emotional scarring for life. He noted the previous conviction for sexual offending, although he was minded to consider it of a different character from the offending presently under consideration.
[7]	As to the issue of preventive detention, Priestley J was mindful of a parliamentary intention that a lengthy determinate sentence is preferable to preventive detention if the former would give adequate protection for society. He also noted that the imposition of preventive detention is a discretionary exercise and concluded that a lengthy finite sentence would be preferable to preventive detention if adequate protection for society would result. He opted for such a sentence, although finding there were no mitigating factors at all in the offending.
[8]	Turning to case law, the Judge noted the reference case of R v A [1994] 2 NZLR 129, which established a starting point of eight years imprisonment in respect of the notional normative rape. Turning to cases analogous to the present, he noted R v Abdulhussein, CA175/01, 7 February 2002, which involved a single victim whom, we note, was abducted from the street by a stranger and sexually violated. An 11 year term of imprisonment was upheld by this Court in that case. R v Shaheed CA202/02 was a similar case involving a single victim and a street abduction by a stranger. This Court did not alter a sentence of 10 years imprisonment.
[9]	The Judge considered that the aggravating features of the case required a substantial addition to the R v A start point in that the totality principle required appropriate additions to reflect the indecent assaults and related conduct of the week prior to the street abduction and rape. Having regard to the circumstances of the offending, the obvious aggravating features, the eligibility for preventive detention and the public protection implications of that, the need to denounce the appellant’s conduct and protect the community, the Judge considered that an appropriate term of imprisonment over all should be 13 years.
[10]	Turning to the question of a minimum term pursuant to s 86 Sentencing Act 2002, the Judge held that the normal one-third parole eligibility period was insufficient. The purposes of denunciation, deterrence and, particularly, protecting the community justified a minimum term of more than one-third and particularly having regard to the purpose of protecting the community a minimum term of seven years imprisonment was warranted.
[11]	In the result, the Judge imposed a sentence of 13 years imprisonment with a minimum of seven years in respect of the rape; a term of five years imprisonment for the abduction; a term of two years imprisonment on the three charges of indecent assault on a female over 16 years; a sentence of three years imprisonment in respect of the two charges of indecent assaults on the 15 year old girl, which involved vaginal touching, and a term of six months imprisonment on the charge of possessing an offensive weapon.
[12]	The Judge then addressed a submission on behalf of the appellant that in contemplating whether a minimum period of imprisonment should be imposed the Court should invoke the legal principles that applied to s 86 Sentencing Act 2002 at the time of the offences. The section, in its present form, had been amended only two weeks before the date of sentencing. The Judge did not resolve that issue, although he acknowledged merit in the submission. He said he did not intend to sentence the appellant on any more severe a basis than would have been the case if he had been sentencing under the previous law, although he was satisfied that those provisions in tandem with R v Brown [2002] 3 NZLR 670, would justify the minimum term he intended to impose. Particularly in view of the purpose of protecting the community stipulated in s 7(1)(g) of the Sentencing Act, he considered an appropriate minimum term was seven years which, he said, was the same result as he would have reached if sentencing two weeks previously.

Submissions for the appellant

[13]	Mr Kaye submitted that both the primary sentence and the minimum non-parole period are excessive. His argument on behalf of the appellant is that a primary sentence of around 10 years would clearly be within the sentencing Judge’s discretion but 13 years is too high, even given the nature of the indecent assaults on the previous weekend. As to the minimum non parole period, he submitted that a sentence of over fifty per cent of the lead sentence of 13 years is manifestly excessive and although a minimum non-parole period could not be considered inappropriate, seven years was too high.
[14]	Mr Kaye realistically acknowledged that there were many aggravating features of the offending. These included the actual and threatened use of a weapon, the young age and consequent vulnerability of the victims, the elements of premeditation in respect of the abduction and rape and the appellant’s callous disregard for and predatory attitude to his victims. In addition there was the fact of the earlier sexual offence against a child and the proximity between the appellant’s release from imprisonment on that matter and the commission of the offences now under examination. Counsel also acknowledged the traumatic and continuing damage to the young victims.
[15]	Counsel was unable to point to any mitigating features, as he frankly acknowledged, but in his submission a sentence of 13 years imprisonment with a minimum non-parole period of seven years was not justly comparable with other cases of serious sexual offending. For example, he said, the case of R v Abdulhussein similarly involved sexual violation by rape and unlawful sexual connection in consequence of an abduction. The offending was similarly predatory and the victim was young, at 16. As we have mentioned, eleven years imprisonment was imposed in that case.
[16]	In R v Ohlson CA382/00, 23 November 2000, 12 years imprisonment was imposed following a guilty plea to charges of attempted rape, aggravated burglary, abduction and indecent assault. R v Shaheed CA202/02, 6 November 2003, was a case of abduction of a schoolgirl from a public street followed by rape. Ten years imprisonment was imposed there.
[17]	As to the minimum non-parole period, counsel submitted this could have been five years but seven years was manifestly excessive. Even if preventive detention had been imposed there would have been a presumptive minimum non-parole period of five years. In counsel’s submission an appropriate sentence would have been about 11 or 12 years, which would have invoked a statutory minimum period of imprisonment of about four years, which might have been extended to five years. Counsel argued for such a result in this case as, in effect, a fall back from an initial submission that the appropriate sentence would have been nearer 10-11 years.

The Crown submissions

[18]

Understandably, the Crown emphasised the fact of serial offending and all the aggravating features which appellant’s counsel had realistically acknowledged. The abduction and rape of the young girl, a stranger walking along a public street who was coerced at knifepoint and subjected to a terrifying rape was a bad case.

Discussion

[19]

This Court takes the view that the appellant was fortunate to avoid a sentence of preventive detention. Within the space of three years he had sexually interfered with a young child, served a term of imprisonment and shortly after his release sexually molested three teenage girls before planning and carrying out the abduction at knifepoint of a teenage girl whom he carried off and then subjected to sexual violation with remorseless indifference. The escalation in offending by a person whose temperament and conduct over decades have been dysfunctional and whose attitude to females seems to have been one of callous self-gratification presents as a matter of serious concern in terms of public safety. That is as relevant to the question of the length of a finite sentence as it is to the question whether preventive detention should be imposed. The cases which Mr Kaye brought to the Court’s attention for comparative purposes do not raise that concern to such an extent as the present case and are distinguishable on that basis. And here, there was offending on two separate occasions so that whether the sentences were cumulative or concurrent in respect of each weekend’s offending is merely a mechanism to achieve totality. Thus, the sentence for abduction and rape could have been 11 years imprisonment, which is about the range submitted by Mr Kaye and a further two years, cumulative, would not have been inordinate for the previous week’s offending. We are quite unpersuaded that the sentence of 13 years imprisonment is manifestly excessive.

[20]

As to the minimum period of imprisonment we are equally unpersuaded that we should interfere. Applying the law which was in effect at the time of the offences, in accordance with the indications in R v Brown, we think it unarguable that the circumstances of the offending were sufficiently serious to justify a minimum period of imprisonment longer than the statutory presumption in order to punish, denounce and deter the appellant. To impose a sentence which in the result requires the appellant to serve not less than seven or more than 13 years is not a manifestly excessive response in this case.

Result

[21]	For these reasons the appeal against sentence is dismissed.

Solicitors:
Crown Solicitors, Auckland