R v McCaffery [2017] NZDC 14540 (5 July 2017)

Last Updated: 28 November 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011: SEE PARAGRAPH [34]

IN THE DISTRICT COURT AT BLENHEIM

CRI-2014-006-000634 [2017] NZDC 14540

THE QUEEN

v

_{[JUSTIN MCCAFFERY]}

Hearing:	5 July 2017
Appearances:	J M Webber for the Crown M Hardy-Jones and M J McKessar for the Defendant
Judgment:	5 July 2017

_{NOTES OF JUDGE D C RUTH ON SENTENCING}

[1] Mr [McCaffery], you are before the Court today having been found guilty a jury of 22 charges of indecent assault. That is because the charges arose from an era in which some of the more nuanced charges which now are available to cover this sort of offending that you were involved in have not come into play until relatively recent times, and so the charges you face are therefore laid under s 140 Crimes Act 1961, a section which in fact no longer exists, and relates to indecent behaviour between adult men and boys under 16.

[2] Fourteen of the 22 charges that you were found guilty of relate to indecent touching by you of your nephew, eight are of inducing that same boy to do indecencies

R v [JUSTIN MCCAFFERY] [2017] NZDC 14540 [5 July 2017]

upon you. Those all allege you getting the complainant to touch your penis, usually with his hand but on one occasion with his mouth.

[3] Going through the charges and the factual basis that I am satisfied the jury must have accepted, charges 1 and 2 alleged an indecent assault, and that related to games that were often played in your household, and the games got to a point where you had the opportunity of assaulting this boy indecently, and indeed that is the occasion where it was alleged that you had attempted to penetrate his anus with your penis. In more modern times, this would have been a charge of attempted sexual violation, where the maximum penalties available would have been 20 years’ imprisonment rather than the

10 that you face in respect of the matters you were convicted of. You also played with the victim’s penis on this occasion.

[4] Charges 3 and 4 relate to the incident regarding the train set. Charges 5 and 6, again two charges relating to the one incident, and that is where the young boy’s anus was bleeding for some days. Charge 7 was after a trip to [location deleted]. Charges

8, 9 and 10 also relate to one incident when it is said you would masturbate in front of this boy, and then ask him to masturbate you. Charge 8 relates to you touching his penis, charge 9 inducing the boy to touch yours, and charge 10 seeking to have the boy take your penis into his mouth after you had ejaculated. He was unable to do that, and started retching. In more recent times, charge 5 would also have been a charge of sexual violation by unlawful sexual connection.

[5] Charges 11 and 12 is another incident where the boy kicked back at you and struck you in the face. You had pulled his trousers down and started to play with his penis. Charges 13, 14, 15, 16 and 17 are matters that happened in the shower at the address you were at, and you would come in and engage in indecencies with him, and each of those charges relate to those sorts of incident.

[6] Charges 18, 19 and 20 are particularised as incidents where there was a game called “hide the sausage”. You had pushed your penis against the complainant’s anus, played with his penis, and made him touch yours.

[7] The final charges relate to one incident which in fact, in time series, was the first incident, and that came towards the end of the complainant’s interview in terms of the trial evidence, and this was an occasion when you went into his room after school when he was getting changed, and you touched his penis through his underpants. You took out your own penis and induced him to touch it. So charges 21 and 22 deal with that incident which was first in chronological terms.

[8] The verdicts in relation to those factual incidents indicate an acceptance in my view by the jury of the complainant’s evidence. That means they accepted his evidence was truthful, was accurate and was reliable. On the other hand, the evidence that was put forward by the defence on your behalf was rejected as being unreliable and, in all likelihood, untrue.

[9] The exercise that I have to embark upon, Mr [McCaffery], is one which requires me to find a starting point that reflects the criminality and culpability of this offending, having regard to aggravating and mitigating features of that offending. I then would, from that point, add any aggravating features of you personally, and deduct any relevant and appropriate factors to which might entitle you to a discount.

[10] When fixing a starting point in this, or any other type of case for that matter, what I have to do is have regard to any obvious aggravating features. There are no mitigating features of the offending.

[11] The aggravating features that are referred to by both the defence and the prosecution in this case are pretty obvious and reasonably easy to articulate. There was, in the first instance, a significant age disparity. He was aged between seven and nine. You were an adult, then married, with children. There was a gross breach of trust. That hardly needs to be said. This boy was placed with you, on the evidence that I heard and accept, to enable other family events to take place. You were therefore, during this time, his custodian and in the place of a parent. Yours was a home where he ought to have been able, as a seven to nine year old, to expect safety, security, if not nurturing. What he got instead was you preying upon him, putting your need for sexual gratification before his needs, and you did that over a two year period. This

was premeditated, it was persistent, and it was determined offending to ensure that your perverted sexual needs were met.

[12] The acts in which you engaged were varied. They cover something of a spectrum of activity. That is reflected in the charges and the events that happened, but I have already made comment about how those circumstances, viewed through more modern eyes and with the ability to lay different charges, would have put you in a somewhat different position than you are today.

[13] Your counsel indicates, in his written submissions, that these were simply opportunistic. They were not. You engineered these things to happen. You were blatant, and you were brazen. This boy was vulnerable. Of course he was, he was between seven and nine years of age. He was coming to a member of his wider family and ought to have been safe and secure. He was not.

[14] The victim impact statement I have read. Because you deny, and continue to deny, that these events even happened, I am unsure whether you have read it yourself or, if you have, whether it strikes any chords with you. I doubt it. But this man’s victim impact statement bears close reading. It is a sad chronicle. He is a man who is confused about who he is, and what he is. He has suffered mentally, and he has had failed relationships. He finds it difficult to have intimacy, and he was always under a cloud where he knew that if he made a complaint about this matter, his immediate family would not believe him. He has lost the church, which was of some importance to him during his life. He has resorted, as is often the case with these victims, to using alcohol to excess, and yet he seeks only that you receive some forgiveness from the deity that your religious followings dictate.

[15] Make no mistake about it, Mr [McCaffery]. The devastation this man has suffered throughout his life is on you, and no one else. This is typical of what we see where child abuse has occurred, particularly of a sexual nature, and this is on you, and you need to reflect on that.

[16] As to the mitigating matters, they are obvious as well. Your counsel, in his written submissions, tells me there are three areas of mitigation that I should have

regard to. One is your age and health, secondly your otherwise good character, and thirdly your remorse. I have no idea whatsoever why Mr McKessar puts remorse as one of the three matters I should consider. You do not accept the jury’s verdicts. You continue to deny that this ever happened. You do not come to the Court with any remorse. You do not come with any offer of amends, and so I disregard entirely the question of remorse in your case.

[17] As to age and health, they are a different matter. I have the benefit of various reports, most recently dated 4 July. It is clear that you are not in good health. You are aged [in your early 80s]. You are on a number of medications, and the doctor’s overall submission on your behalf is that because of your medical problems, stress or infection may well cause those problems to decompensate, to use her word, and to deteriorate to cause a serious outcome for you. The doctor, surprisingly in my view, records matters to do with your family circumstances. They do not, in my view, relate to your medical condition. However, she has taken it upon herself to make reference to your family circumstances. Those were aired during the trial, and I am aware of them. I must say for myself that, without minimising in any way, shape or form, any difficulties your [child] might have, the understanding I had from the trial was that she [details of disability deleted]. That, in my view, is unfortunate but hardly life- threatening and hardly in the serious category of a child with autism or serious physical and mental disabilities, and so I take some of that with something of a grain of salt. I do not dismiss it, but I do not give it the importance that I think your counsel invites me to.

[18] Having regard then to those various competing factors I must then look to see what the starting point should be, having regard to those aggravating features that I have already referred to.

[19] Mr Webber, for the Crown, has set out a number of matters including the aggravating features that I have already spoken to you about. He has referred me to a number of decisions that have gone on before yours. They are important really only as matters of principle, because it is clear that each case has its own unique features and so it is here, and so it is difficult to find a case which is on all fours with yours and

so, as I say, they are more important as statements of principle to guide the Court in a situation like this.

[20] The cases to which I have been referred by the Crown are set out in their submissions. They are R v Maloney.1 R v O’Brien.2 and R v Milligan.3 and R v W (T000672).4. A reading of all of those cases which I have carried out very carefully tells me that for the offending in the era in which your offending took place, and having regard to similarities of circumstance, a prison sentence starting point of between three and four years is sustainable.

[21] For the defence Mr McKessar suggests that, by reference to those cases and others, that a sentence starting point of two years would be more appropriate. The defence accepts that a reading of all of the relevant cases means that a sentence starting point up to three years has to be conceded, and so there is, I think, not a great deal of difference between the defence and the prosecution. In particular, I have taken note of the case to which has been referred by the defence, and upon which some weight has been placed, that is R v Tia.5 a 2010 High Court Auckland case. I confirm I have taken full account of that.

[22] When I look at all of the aggravating features in this case and having had regard to the cases which have been referred to me, I reach a starting point of three and a half years’ imprisonment. It then falls to see to what extent there should be deductions.

[23] The defence position here is very forceful. The defence position is that you are in that higher category of risk where imprisonment would effectively be a life sentence for you, and I have been referred not only to the medical report which I have already spoken about but also the various factors that have surrounded the trial

_{including, and I accept, your hospitalisation.}

1 R v Moloney HC Christchurch CRI-2003-009-13598, 1 August 2008

2 R v O’Brien HC Hamilton CRI-2008-018-8148, 11 July 2009

3 R v Milligan [2013] NZHC 118

4 R v W (T000672) HC Tauranga T000672, 11 May 2001

5 R v Tia HC Auckland CRI-2009-092-7402, 5 October 2010

[24] In response, the Crown have also carried out a review of a number of cases, and again each of them has to be regarded as being relevant to their own facts. The distinction the Crown draws is that there are cases where there have been definite prognoses of terminality in terms of the illness being suffered, and so in the case of Hastie v R.6 it was accepted that there was there a life expectancy that was going to be short, and there was a prognosis of death within two to three years. In that case it was

thought that a deduction or a discount of about 18 percent of the starting point would be sufficient to recognise all of that. The second case of a similar nature was R v Luce.7 There, there was also a terminal life expectancy placed at two to three years.

[25] What I have to be aware of is that even taken at its highest, I would recognise that at your age and in your health prison will not be easy. That does not mean, in my view, that prison would be necessarily a life sentence. I am also aware that there is the ability of the Prison Service, should matters deteriorate, to have you released, and also the Parole Board has similar powers.

[26] I do accept that there are cases where the purposes and principles of sentence can be overcome by the factors in a particular case making sentencing along traditional lines of little utility. I do not see that that is a category into which your case falls.

[27] The Crown submission is that there should be something between 15 and

20 percent contemplated as a reduction from the starting point to recognise your age and health matters. Reference is made to a case of R v Milligan.

[28] Mr McKessar, on your behalf, suggests that there could be a deduction of anything up to 30 percent or thereabouts.

[29] Having considered all of the material before me, and having considered both the Crown and the defence positions, I arrive at a deduction for health and age matters of 20 percent. That sounds in the sum of eight months which, deducted from my

_{original 42 months, leaves me with 34 months.}

6 Hastie v R [2011] NZCA 498

7 R v Luce [2007] NZCA 476

[30] I then have to ask myself whether there is any other deduction which should be made available to you. The factor there, and the only factor that seems to me, to be in question here is your otherwise blemish-free life. That, I accept, but with this caveat, that you have lived all of your life since the time of this offending with the knowledge that you so poorly behaved in respect of your nephew, and so while your life might have been otherwise offence-free, it has to be seen, in my view, against that family circumstance.

[31] I am going to give you a six month discount from the remaining 34 months that I have already arrived at, and I would regard that as more than appropriate and sufficient to recognise the matters as I have put them.

[32] That takes me to a term of 28 months. Because you show no remorse, no acceptance of guilt, you have made no offer of amends whatsoever, I see no scope for any further discount than that. I go further. Had circumstances been such that I reached a view that a sentence under two years was possible, given all the factors I have related in this case I do not think that a term of home detention would be an appropriate or significant enough penalty on you.

[33] For those reasons you are sentenced on each of the 22 charges to two years and four months’ imprisonment.

[34] As to name suppression, I suppress finally the name of the defendant. I see no basis at all upon which to suppress the name of the Brethren Church, and I refuse to do so.

D C Ruth

District Court Judge