R v Bradshaw [2017] NZDC 18569 (18 August 2017)

Last Updated: 8 August 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT TAURANGA

CRI-2016-079-000378

[2017] NZDC 18569

THE QUEEN

v

[WALLACE BRADSHAW]

Hearing:	18 August 2017
Appearances:	R Jenson for the Crown P Attwood for the Defendant
Judgment:	18 August 2017

NOTES OF JUDGE T R INGRAM ON SENTENCING

[1] Mr [Bradshaw], as you know it is necessary for me today to sentence you in relation to a number of charges. The Crown charge notice contains a total of nine charges. In relation to charge eight the Crown have offered no evidence and on that charge you will be discharged under the provisions of s 147 Criminal Procedure Act 2011.

[2] I turn to the remainder of the charges. The first two charges are representative charges of indecent act on a child involving touching the child’s chest and genitalia. Charge 3 is a charge of sexual violation by unlawful sexual connection involving

R v [WALLACE BRADSHAW] [2017] NZDC 18569 [18 August 2017]

introduction of a finger or fingers into the genitalia. Charge 4 is a representative charge of inducing an indecent act on a child under 12 by getting her to touch your genitalia.

[3] Charges 5 and 6 are charges of sexual violation involving respectively contact between mouth and tongue and your genitalia. Charge 7 is a charge of attempted sexual violation in terms of attempting to make a connection between the child’s mouth and tongue and your genitalia. Finally charge 9 is a charge of indecent act on a child which involved rubbing your genitalia on her buttocks and genital area.

[4] The circumstances of this offending is well known to you. I do not propose to go into a great deal of detail in relation to these matters. By far the most important fact is that the child at the time was about 11 years of age and you were about 25 years of age. You are relatives, and the offending took place over a period of around about five months. The offending would occur at night when other younger children were sleeping in the same room.

[5] The circumstances generally as far as the complainant are concerned is that she had been placed in the family setting for reasons relating to her own family dysfunction. Because of the discrepancy in ages, and the fact that she was a family member in your household at that time, and the circumstances that I have mentioned, this is a case involving a very serious breach of trust which had been placed in you as a family member, not to indulge yourself in sexual activity with this child.

[6] You had, in my view, no relevant prior convictions and neither the Crown nor the defence suggest that your case is one which should be approached on any other basis than that you are for practical purposes a first offender, at least in this line of offending.

[7] I have carefully read the victim impact statements which have been provided to me both from the child and from her mother. I was gratified to note that the victim impact statement from the child was rather more positive than many that I see in my role. The material disclosed in both the mother and the child’s victim impact statements was entirely consistent in many respects with what one would expect,

namely the probability of ongoing harm to the child later in life, serious concern on the part of the mother and a good deal of angst and family concern and distress as a result of this offending having occurred.

[8] I have seen the probation report on you, Mr [Bradshaw], which I consider to be favourable. Your counsel has pointed out that there is a reference there to reluctance to agree to a specialist sex offender programme, but I took it in its context as meaning that you would do what was required and you would attend a specialist programme as required during the course of your sentence.

[9] It must be said, Mr [Bradshaw], that you could have pleaded guilty earlier, but I am completely satisfied that you have fully acknowledged your responsibility for what has occurred and to use the vernacular you put your hand up and accepted that responsibility lies entirely with you. At your age and stage in life that is not an easy thing to do and I intend to give you substantial credit for your approach to the matter.

[10] There are a number of factors that I need to take into consideration in assessing the appropriate starting point for sentence here, firstly the age of the victim which as I mentioned is pre-teen. She is clearly vulnerable, there is a substantial degree of abuse of trust. The intrusiveness and the intensity of the assaults are adequately covered by what I have already said. Clearly there are a number of repeated instances over a period of time. Each of them may well have been of relatively short duration but certainly in total they ran over just about a five month period. Clearly some of it was pre-mediated. I accept that some of it may have been opportunistic; and the substantial harm caused.

[11] The leading case in the field is R v AM.1 Bearing in mind the matters that I have already addressed in terms of offending, it seemed to me that an appropriate starting point within those bands is one of nine years’ imprisonment. The range suggested to me is from seven to 11 years, I consider that on a totality basis seven is too low and likewise on a totality basis 11 is too high.

1 R v AM [2010] NZCA 114, [2010] 2 NZLR 750

[12] There is no formula by which exact calculation is possible and it seems to me that nine years as a starting point is an adequate reflection of the totality of the offending. I note too that it is clear from the authorities that the guidelines in the R v AM are to be applied flexibly in an evaluative assessment of culpability. Merely counting the aggravating factors does not help; what is required is simply an evaluation of the overall context and endeavouring to fit the outcome within the overall matrix mandated by R v AM.

[13] The Sentencing Act 2002 requires me to hold you accountable for what you have done and promote a sentence of responsibility in you. I accept unreservedly, Mr [Bradshaw], that you are just as responsible as you know how to be, you pleaded guilty and accepted personal responsibility for everything that occurred. The interests of the victim need to be considered, I need to denounce your conduct and deter you and others from this kind of behaviour. The community needs some protection.

[14] You clearly need rehabilitation and reintegration and that will no doubt be a feature of your sentence, both during your time in prison, and I have no doubt, the Parole Board will be discussing with you appropriate rehabilitative and reintegration issues when you come to see them in relation to an application for parole.

[15] There are a number of other factors that are relevant, including the gravity of the offending. These are serious matters all of them. Some of them carry 10 years and some carry 20 as the maximum penalty.

[16] I need to be consistent with sentences imposed on others in similar circumstances. I take into account the effect on the victim and I need to impose the least restrictive outcome, which in these circumstances has to be a sentence of imprisonment with a Parole Board outcome.

[17] The aggravating features obviously include the harm that you have done, the abuse of trust, the vulnerability of the victim and the premeditated nature of at least some of these matters.

[18] In mitigation, these occurred when you were 25 years of age and whilst that might be at the upper limit of credit for age, I propose to take that into account. You are entitled to credit for guilty plea and I have a clear and straight forward view that in a case of this kind, where we have such a young complainant, that a full 25 percent should be granted to you in this particular case. I say so because of the inevitable trauma which giving evidence must have visited upon this child if she were required to attend Court and, in my view, a substantial credit needs to be given to reflect the fact that she does not go through the damaging process of giving evidence in this case.

[19] I accept too that you are remorseful, Mr [Bradshaw]. You are not someone who has offered excuses, you are not someone who has pointed at anybody else as having any involvement, you have been fully accepting of responsibility and you have indicated that you are as remorseful as you could be about having been involved in this behaviour.

[20] Taking all those matters into account I am satisfied on the basis of the authorities and the statutory factors that a sentence of imprisonment is required and nothing less than a sentence of imprisonment would be appropriate.

[21] For the reasons I have tried to explain I consider an appropriate starting point will be a sentence of nine years’ imprisonment. I do not consider there are any aggravating factors which would justify an increase in that, and I consider that I should allow you a full 25 percent discount, which I calculate at 27 months for your guilty plea. I also propose to give you a further discrete credit of 12 months to cover your relative youth at the time, and I accept that you were reasonably co-operative and accept that you are particularly remorseful and have been of generally good character. I give a discount of 12 months cumulative on the 27 months to reflect those factors.

[22] From my calculation that would produce an overall sentence of 69 months or five years and nine months.

[23] Accordingly, on charges 4, 5, 6 and 7 you will be convicted and sentenced to imprisonment for a period of five years and nine months. In relation to charges 1, 2, 3 and 9, which carry the lesser penalty, it would seem that an appropriate starting point

would be four years’ imprisonment. I give you 25 percent credit reducing the end sentence to three years’ imprisonment. On those charges 1, 2, 3 and 9 therefore you will be convicted and sentenced to imprisonment for a period of three years. All sentences are to run concurrently. This is not a case where a minimum period of imprisonment in my view is required on the basis of s 86 and I will make no order for a minimum period of imprisonment.

[24] This is a case however where your name should be entered on the register of sex offenders and I make such an order accordingly.

[25] The net result for you today, Mr [Bradshaw], is a sentence of five years and nine months’ imprisonment. I would simply urge you please to have a careful talk to your sentence planner when you see your sentence planner very shortly and I respectfully invite you to consider doing all the courses that you can as soon as you reasonably can, so that when you see the Parole Board in the not too distant future you will be in a good position to advance your case for early release on parole.

T R Ingram

District Court Judge