R v Fox [2018] NZDC 14148 (12 July 2018)

Last Updated: 18 July 2019

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

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204

OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT WHANGAREI

CRI-2016-088-002493 THREE STRIKES WARNING

[2018] NZDC 14148

THE QUEEN

v

[SEAN FOX]

Hearing:	12 July 2018
Appearances:	S Barnaart for the Crown J Watson for the Defendant
Judgment:	12 July 2018

NOTES OF JUDGE D G HARVEY ON SENTENCING

[1] Mr [Fox], as a preliminary, as you have just heard me query with your counsel, as you have now been convicted on charges of indecent assault on a child, the law requires me to give what is a called a first strike warning.

[2] Given your conviction on those charges, you are now subject to the Three Strikes Law and I am going to give you a warning now as to the consequences of

R v [SEAN FOX] [2018] NZDC 14148 [12 July 2018]

another serious violence conviction and you will also be given a written notice which outlines these consequences and that notice also lists the serious violent offences.

[3] If you are convicted of any serious violent offence, other than murder, committed after this warning and if a Judge imposes on you a sentence of imprisonment, then you will serve that sentence without parole or early release.

[4] If you are convicted of murder committed after this warning, you must be sentenced to life imprisonment and that sentence would be served without parole unless it would be manifestly unjust, and in that event a Judge must sentence you to a minimum term of imprisonment.

[5] Today you are for sentence on three charges of doing an indecent act on a child under 12. Two of those are representative charges and as no doubt your counsel will have told you, it is my task first to set out the facts that I intend to sentence you on. Once I have done that, the law requires me then to go through a set process.

[6] The facts that I am sentencing you on are that for [more than one month], the complainant was living in your household. It would seem and I am prepared to accept that for [accommodation details deleted].

[7] It is clear from the verdicts that were delivered that the jury accepted that whilst he was in your [household], you took the opportunity on multiple occasions to have you masturbate him and also to have him masturbate you. They were also satisfied that on one occasion, whilst in a motor vehicle, you encouraged him to masturbate you.

[8] It would seem that the jury accepted what [the complainant] told them and particularly were obviously impressed by the detail that he was able to describe. It is clear on the evidence that you did have ample opportunity to commit the offences, both in the bedroom and the garage, and the jury clearly rejected the suggestion that you were always supervised when he was in your [household].

[9] Prior to this sentencing taking place, I have had the advantage of reading an enormous amount of material. I have of course read the very extensive submissions filed by the Crown and by your counsel. I have seen a very limited pre-sentence report.

[10] Now I am aware of course that Mr Watson quite properly instructed that you were not to discuss the offending with the probation officer, but it is unfortunate that you took that advice to mean that you were not going to talk to the probation officer at all, because ultimately what that means is that I have very little information as to your background. I am sure that Mr Watson did not intend you to take that approach, but that is the approach that you have taken.

[11] I have had the advantage of reading the victim impact statements that were provided to me this afternoon and of course I have read some of the cases that your counsel and the Crown have referred me to. You will have noted that the oral submissions made to me this afternoon have been very limited and the reason for that of course is that counsel did not want to repeat what they have already said to me in the voluminous submissions that I have read.

[12] In any sentencing process, the law says I have to have regard to the purposes and the principles of sentencing. There is a need for me to hold you accountable for this offending and promote in you a sense of responsibility for the harm. Now I pause at this stage to acknowledge that you do not accept that you have done anything wrong. You are entitled of course to continue with that view, all it means is that I cannot allow any discount for remorse. I do underline, however, that you are not penalised because of that position. By penalise I mean that I do not increase the sentence because you have persisted in that view.

[13] There is a very real need for me to make it clear that this type of behaviour cannot be tolerated in our society and there is a need to deter not just you, but also others from offending in this way. The law says that I must have regard to the effect of the offending on the victim. That is why of course the Crown have provided me with victim impact statements, they are obliged to do so.

[14] I must be consistent, I have to treat you in the way that other people are treated for like offending. That is why the lawyers have referred me to a substantial number of cases, because it is only by my considering those cases that I am able to reach a sentence which I could be confident is consistent with other sentences imposed for like offending on other people.

[15] I accept of course, and this has been emphasised to me by your counsel, that I must impose the least restrictive outcome that I can in all of the circumstances of the case.

[16] I am obliged to consider factors that can be described as aggravating. Now the Crown have referred me to the Sentencing Act 2002 that outlines aggravating features, but they have also referred me to a decision that can be known as ]R v Thorpe1.

[17] That decision is useful because it does set out in some detail matters that this Court should take into account in sentencing of this nature; the age of the victim, vulnerability of the child, the degree of the abuse of trust, the intrusiveness and the intensity of what occurred, duration, repeated instances of offending, premeditation, harm, and any attempts at concealment.

[18] When I give consideration to those factors, I note that at the time of this offending, the complainant was [under ten], and of course he was very vulnerable. He [was living in your household] and the offending against [the complainant] was a gross abuse of trust.

[19] The offending involved skin-to-skin contact, and although the offending itself did not last for any length of time, it was more than fleeting or momentary. It occurred on a number of occasions and there has to have been some premeditation. Harm has been done to the little boy and I am sure that you have seen the victim impact statements. The harm is likely to be long-lasting.

1 R v Thorpe [2012] NZHC 229

[20] The Crown also point me to the fact that there were attempts to conceal your offending, both by you offending when you were away from the rest of the family, but also the threats that were made.

[21] As your counsel quite correctly points out, there is not a great deal of difference between the starting point suggested to me by the Crown and the starting point suggested to me by your counsel. The reason for that is quite clear. There are any number of cases in this area of the law. Counsel are aware of them, and it is because of those cases that both counsel are able to get very close to what can be described as the appropriate starting point.

[22] The Crown in particular relies on R v Thorpe and Anson v R2. Your counsel has also referred me to decisions, but I have also found one decision myself that is of some assistance, that decision is [[R] v R] which is a Court of Appeal decision in 2017. There, there were three charges of doing an indecent act on a child under 12. Two of those were representative. The indecencies involved the rubbing of genitals, on the little girl’s buttocks on numerous occasions when she was between the ages of four and seven. The term of imprisonment imposed there was a term of imprisonment of three years and three months.

[23] Your counsel is right. The real difference between he and the Crown is on what allowance I am prepared to give you for your previous good character. You have not appeared in Court before and you have reached an age where you are entitled to point to your previous good character in aid this afternoon.

[24] I intend to take as the lead or the most serious charge the representative charge relating to the touching of the complainant’s penis, which was charge 2. However, the sentence imposed on that charge will be the same sentence that I impose on charges 1 and 3.

[25] I have decided, after consideration of all of the cases, that the appropriate starting point here is a starting point of three and a half years’ imprisonment, but as I have said, you must be given credit for your previous good character. Accordingly, on

2 Anson v R [2014] NZCA 135

all of these charges, you are now convicted, you are sentenced to a term of imprisonment of three years.

D G Harvey District Court Judge