R v Bragg [2018] NZDC 4204 (6 March 2018)

Last Updated: 13 June 2019

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

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

IN THE DISTRICT COURT AT INVERCARGILL

CRI-2017-025-001439

[2018] NZDC 4204

THE QUEEN

v

ISSAC WILLIAM MIDDLETON BRAGG

Appearances:	K Allan for the Crown H T Young for the Defendant
Hearing:	6 March 2018

NOTES OF JUDGE K J PHILLIPS ON SENTENCING

[1] Mr Bragg, you are for sentence before me today on four charges overall, all relating to sexual violation. The result is a term of imprisonment. Of that there is no argument from your counsel. It is a question of how long that should be and as to what credits you are entitled to get because of the number of items of information that are available to me.

[2] You are 37 years of age. You have no prior history relating to this type of offending, that is sexual violation of males under the age of 12 years. I understand your victims were [details suppressed]. [details suppressed] . In [date deleted], the children were placed in care. I understand that in July 2017 you went in to Oranga Tamariki – Ministry for Children and you admitted various matters relating to the sexual abuse by you of each of your victims. Victim A was aged [under 12]; victim B

R v BRAGG [2018] NZDC 4204 [6 March 2018]

aged [under ten]. The offending related to acts of oral sex, you on them and they on you.

[3] They included, where you took hold of one of the victims, forcing his head into your groin, pushing your penis into the boy’s mouth, controlling the boy’s head, making him perform oral sex. Secondly, when sitting on the couch you pulling the pants of the boy down and then your own, holding his head, performing oral sex on him, then making him perform oral sex on you. In [location deleted] pushing the victim onto the bed and getting on top of him, removing his pants then pushing and rubbing and making the boy have oral sex with you. All those charges related to one victim.

[4] In relation to victim B [details deleted]. You making him perform a number of acts of oral sex. That charge being laid as a representative of a number of acts and crimes. That is the charge for the purposes of today I will be treating as the lead charge and upon which your sentence will be imposed.

[5] I have read a pre-sentence report that details that you had this friendship; you offered to help your friend as he was in difficulties; and then your mental behaviour led to a breakdown of your disciplines because of the loss of your job. This led to your offending. Then you deciding to, as you put it, “come clean”. You are entitled to credit for that. I intend to give you full credit for it.

[6] The various reports I have include detailed psychologist and psychiatric assessments. There is no doubt at all in my mind that you have a background of sexual abuse and a dysfunctional upbringing all leading to you being dysfunctional in yourself. It does you credit, I suppose, to be able to say that [dates deleted] you had a steady job at [employment details deleted].

[7] When I read everything I understand you lost your job and your offending began shortly thereafter. Mood swings started to occur. You were concerned about your mental health issues. You were questioning your beliefs. You had delusions. I have read all about those matters.

[8] You are a loner, with few friends; you have difficulties with your cognitive functioning. All of this goes back to your own abuse and the dysfunctional household you grew up in. However, in the end you were found to be not unfit to stand trial and therefore to plead and stand trial.

[9] There are matters in the report obtained under the terms of s 38(1)(c) and (d) that had been raised by Mr Young, your counsel. I have discussed them with him today in relation to your intellectual disability. It has been decided not to take that matter any further. I do not therefore intend to call for a s 35 assessment under the Criminal Procedure (Mentally Impaired Persons) Act 2003.

[10] You will no doubt be put in a situation when you are sent to the prison that you will serve your sentence in where there will be assistance given in relation to your mental health. The assessment reports in that regard about you are to be sent onto the prison.

The Crown

[11] Again, I have been met with Ms Allan for the Crown with detailed written submissions which are very helpful. The tariff decision of R v AM1 is to the fore in your sentencing. That is what I have to use. Ms Allan points to the 18 month prolonged period leading to submissions of premeditation; the vulnerability of your victims; the wide age disparity; and the circumstances following [details suppressed]. Harm goes hand in hand with this type of offending and that must be brought to account. The overall scale of your offending, two victims over 18 months, oral connection, both you on them and they on you, the major breach of trust, vulnerability that means that in the end your offending falls in the mid to upper end of Band 2 of R v AM. As Ms Allan points out there is no mitigation to the offence and no aggravation personal circumstances to bring to account.

[12] Ms Allan notes that in the terms of credits that there is clear authority for you, having self reported your abuse, to be given a major credit on sentencing. There is no argument with that. The Crown says there should be a 25 percent credit given. I agree.

1 R v AM [2010] NZCA 114

[13] In relation to your mental health issues detailed in the report the Crown’s position on that is that it is a neutral factor and there should not be any credit. You are entitled, in the Crown’s submission, to maximum guilty plea credit. Overall, the Crown assesses the starting point and the authorities that it discusses, and says the starting point is some 11 years’ imprisonment but with the credits that Ms Allan has discussed an end point of six years and two months’ imprisonment.

Defence

[14] Mr Young, for you, accepts the Crown’s argument as to where it places the starting point. He does not argue against the starting point of 11 years. The issue for him is the discounts. There is no argument with the guilty plea credit of 25 percent or the self reporting of 25 percent. He considers there are credits due to you for your mental health background; for the dysfunctional upbringing; for your cognitive issues and for your good character. I have noted those submissions. As you have seen I have been attempting to come to some degree of calculation as to what they should be given because in the end I still have to hold you accountable. I have to denounce and deter this conduct. I have to take into account the interests of the victims of your offending and this type of offending is always looked upon seriously by the Courts and is by me as well.

[15] I have taken the aggravating and mitigating factors as stressed to me by counsel in the terms of my assessment. I note that I do not have any Victim Impact Statements in relation to the victims available to me but I am told they are available. The father of the boys tells me that the family is “shattered” about all of this. [Details deleted]. He sees his sons dealing with [details deleted, the changes in his sons]; because of these particular incidents; the disorders and difficulties the boys have and the matters that are detailed in that regard. Again, as I have said, I take due note of those factors.

[16] There is no argument here with a starting point of 11 years. I adopt counsel’s joint recommendation to me. There are no aggravating or mitigating circumstances re the offending that I need to consider. I move on therefore to your credits. There is no argument here that you are entitled to 25 percent for self reporting, 25 percent for your guilty plea. The argument is in relation to what credit you should be given for the issues of your mental health, your good character and your background. When

I prepared the files I considered that there should be a credit. I consider that at about the 10 percent level but upon reflection I consider now that it should be 15 percent overall for all of those various matters. That means that from the 11 year starting point the credit that I must allow you initially is 40 percent. I allow credit at that rate. That brings that end starting point before guilty plea credit down to 79 months by my calculation.

[17] You are entitled to 25 percent credit against that which brings the end sentence down to 59 months. By my mathematics that equates to a term of four years and 11 months’ imprisonment after giving you credits amounting to some 60 percent against the starting point. You get those credits, Mr Bragg, because of your difficulties in your background, because of the way in which you fronted your offending. I can only say that hopefully the assistance you need will be given to you in prison.

[18] The sentence of four years and 11 months’ imprisonment is imposed on charging document 2144, sexual violation laid representatively between [dates deleted]. On each of the other three charges you are sent to prison for a period of four years to be served concurrently.

[19] We have discussed issues relating to name suppression. I do not consider there is any case that can be made out in the terms of s 200. The interim order for suppression of your name is cancelled. I do not make a final order.

[20] I have overlooked that I must make an order in the terms of your name being published on the sex register because that is part of my function as a sentencing Judge. I have no hesitation here in directing that your name be published on the Child Sex Offender Register under ss 7 and 10 Child Protection (Child Sex Offender Government Agency Registration) Act 2016.

K J Phillips

District Court Judge