R v Fox [2024] NZDC 3093 (14 February 2024)

Last Updated: 24 May 2024

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IN THE DISTRICT COURT AT ROTORUA I TE KŌTI-Ā-ROHE KI TE ROTORUA-NUI-A-KAHUMATAMOMOE

CRI-2023-063-002917

[2024] NZDC 3093

THE KING

v

CLAYTON FOX WIKITORIA PEPENE

Hearing:	14 February 2024
Appearances:	K Bucher for the Crown A Sykes for the Defendant Fox A Hill for the Defendant Pepene
Judgment:	14 February 2024

NOTES OF JUDGE R G MARSHALL ON SENTENCING

[1] Mr Fox you are here for sentence today on a number of charges:

R v CLAYTON FOX [2024] NZDC 3093 [14 February 2024]

(a) two charges of sexual conduct with a young person under 16, that carries a maximum of 10 years’ imprisonment,

(b) a charge of supplying cannabis to a person under 18, four charges of that, of which three are representative, that carries a maximum of eight years’ imprisonment,

(c) two charges of an indecent act on a person under 16, which carries seven years' imprisonment as a maximum,

(d) three charges of supplying methamphetamine, one charge of possession of methamphetamine for supply and a further charge of supplying methamphetamine. All those charges carry a maximum of life imprisonment.

(e) There is a further charge of possession of cannabis for distribution. That carries eight years' imprisonment.

(f) Failing to comply with the lawful requirement of an enforcement officer which is fine only.

(g) Possession of cannabis which carries a maximum of three months.

(h) Operating a business of prostitution without a licence which is fine only.

(i) Assisting a person under the age of 18 to provide commercial sexual services. That carries a maximum of seven years' imprisonment.

[2] Those 18 charges that you face range from a minimum penalty of fines through to life imprisonment as I say.

[3] You Ms Pepene face a charge of possession of methamphetamine for supply. That carries a maximum of life imprisonment, possession of cannabis for distribution and operating a business of prostitution without licence. That is fine-only.

[4] The sentencing proceeds on the basis of the summary of facts that has been supplied by the Crown. They have accurately summarised the full summary of facts in their submissions and I intend to adopt those.

[5] You Mr Fox met [victim 1] in 2017 when she was 12 years of age. She would message you asking for cannabis and you would supply it to her whenever she asked. In 2018 you asked her if she wanted to make money working for you as a prostitute. You asked that she send you indecent photos of herself in exchange of cannabis. You then drove her to a pool in [location A] and provided her with alcohol and cannabis which she consumed in excess. You then took your clothes off and got into the pool. You told her she had to take her clothes off as well as it was a rule of the pool. You swam with her, moved your hands over her body, took her hand and placed it on your penis. You used your hand briefly to touch her genitalia.

[6] The second victim, [victim 2] you met after delivering cannabis to her mother. At the time of this offending she was aged between 13 and 14 years. While driving around Rotorua with her you supplied her with methamphetamine and commented that you would like to have sex with her. You placed your hands on her thigh causing her to pull away and say no. You then unzipped your pants, pulled out your penis and made an indecent suggestion to her. Around September 2023 the victim was walking along the road when you offered her a ride home. You supplied her with cannabis and she fell asleep in your car. While she was asleep you took advantage of that situation by sliding your hand under her pants and moved it towards her underwear. She woke up, yelled at you, got out of the car and walked home. You supplied her with methamphetamine and cannabis once a week for a six month period. In total you supplied her with what is estimated to be .6 grams of methamphetamine and 12 grams of cannabis.

[7] The next victim, [victim 3] you met when she was 13 years of age. She asked that you deliver cannabis to her address. You propositioned her with sex which she declined. You then continued to deliver her drugs and told her that she could earn money by prostituting for you. You told her she would have to participate in what you termed an “interview” with you first. She messaged you and asked you if she could earn some money. You said she could but she would need to conduct that “interview”

first. You met her at a motel. You provided her with lingerie and gave her three puffs of methamphetamine. She then engaged with oral sex with you and you performed oral sex on her and you then penetrated her genitalia with your penis.

[8] About a month later you met the victim again and drove her to an address in [location A]. You got into the back of the car and you once again Mr Fox penetrated her genitalia with your penis. On another occasion you met the victim and drove her to the eastern side of Rotorua. You supplied her with a small amount of methamphetamine before having unprotected sex with her. She did not know that you were not wearing a condom and became upset when you told her you had not worn one.

[9] On another occasion you made the victim inhale a large amount of methamphetamine and she became very affected by it, such that she spent most of the day on the floor looking for an earing she believed she had lost. She says she received methamphetamine from you approximately once a week. The conservative estimate is you supplied her with .8 grams of methamphetamine over a period of eight weeks and approximately five grams of cannabis.

[10] The last victim, [victim 4] you knew through selling methamphetamine to her mother. In the beginning of 2023 the victim was 13 years of age and you spoke to one of her associates and informed her that you provide security and transport services to escorts. On four occasions during 2023 you drove the victim to a rural address where an older male lived. She provided commercial sexual services to him and she would then pay you a portion of the money she earned. On another occasion you drove the victim to a motel where she met another male. She was paid for providing him with commercial sexual services and once again provided a portion of that money to you. You and the victim began a consensual sexual relationship following that initial meeting. You had sexual intercourse with her on three separate occasions. During the course of the relationship you supplied her with approximately $40 worth of cannabis and one gram of methamphetamine.

[11] Generally as to your possession and supply of drugs, between 25 May 2023 and 8 June 2023 your text message data showed that you were in possession of

methamphetamine and cannabis for the purpose of sale and supply. You had been in a relationship with your co-offender Ms Pepene for approximately 10 years. Over that period of time you ran a prostitution business in Rotorua and you Mr Fox estimate that approximately 100 different females worked for you. You and Ms Pepene advertised your services through word of mouth and online. You determined where your sex workers would work and the amount of money they would receive. In general terms you and Ms Pepene would receive 40 percent of the proceeds for security services. Both of you do not have an operator’s certificate issued under s 35 of the Prostitution Reform Act 2003.

[12] Again, on 3 September 2023 you provided a fifth person, a 14-year-old female with .1 grams of methamphetamine after she enquired about working for you.

[13] Finally, on 4 October 2023 you Mr Fox drove your vehicle on a street in Rotorua when you were forbidden to drive. A search warrant was executed on the vehicle and a gram of cannabis plant was located.

[14] You Ms Pepene have pleaded guilty to charges of possession of methamphetamine for supply and possession of cannabis for distribution. The Crown accepts that that was at a very low level in terms of Zhang v R, which is a Court of Appeal guideline decision which sets out levels of culpability.1

[15] The Crown submits Mr Fox that you supplied four victims with drugs and more seriously you sexually offended against each of them. The Crown seeks cumulative starting points for the sexual offending against each victim and treats as an aggravating fact each was supplied with drugs. In my view that is a correct approach. The Crown then seeks an uplift for the remaining charges. The Crown identifies the charge involving [victim 4] and assisting her to provide commercial sexual services is a serious charge requiring separate consideration by way of an uplift. The Crown further recognises that the totality principle will come into play once the end starting points on the various offences have been identified.

1 Zhang v R [2019] NZCA 507.

[16] Dealing firstly with the two charges of sexual conduct with a young person under 16, one of which is representative and two charges of doing an indecent act there were four victims involved represented by each of those charges. There is no tariff decision but in a Court of Appeal decision of R v H, the Court of Appeal recognised with the increase then of the maximum penalty from seven years to 10 years (which it is currently), for offences of sexual conduct with a young person designed by Parliament to increase protection for vulnerable young people, starting points were identified that could be fixed at four years.2 Aggravating features were identified such as breach of trust, significant age gap, extent and scale of contact and significant, adverse effects on the victims.

[17] In R v Johnson other aggravating features such as grooming or abusive and demeaning behaviour were also identified.3 In Johnson the age discrepancy was 21 years. There was frequent sexual connection over three months, rough and demeaning contact, an adverse effect on the victim and some elements of targeting. The Court of Appeal held that the starting point identified there of three years and nine months in the lower court was at the bottom of the range and as it was the Solicitor General’s appeal did not interfere with that starting point but it clearly indicated that a starting point of four years and six months would have been more appropriate.

[18] Here the Crown has identified the aggravating features is the number of victims, (four) and the scale of the offending. With [victim 4] there was full penetrative sex on three occasions over several months, with [victim 3] full penetrative sex three times over approximately eight weeks. With [victim 1] you Mr Fox placed her hand on your penis and touched her genitalia and with [Victim 2] moved your hand under her underwear when she was asleep. The Crown have said that the offending occurred over a period of four years from 2019 to 2023. With the age discrepancy, [victim 4] was 13, [victim 3] 13, [victim 1] 14 and [victim 2] 14. You at the time were aged between 46 and 49 years so the age gap is well in excess of 30 years.

2 R v H [2008] NZCA 237.

3 R v Johnson [2010] NZCA 168

[19] Further, as an aggravating feature [victim 3] was exploited to enter prostitution. The Crown identified grooming and premeditation as you supplied each victim with drugs to gain their trust and develop a relationship with them. They see that as I do as a serious aggravating feature, supplying young persons with drugs before sexually offending against them.

[20] Finally, the Crown refers to the impact on the victims. You Mr Fox have already heard one victim who had the courage to read out how this offending affected her. It has affected every aspect of her life and will continue to do so for some considerable period to come. I have a further victim impact statement from [victim 4] which I have also carefully considered.

[21] The Crown submit with [victim 4] the starting point should be four and a half years and a similar starting point with [victim 3]. The overall starting point for those two victims is nine years, with the offending against [victim 2] two years and against [victim 1] one year, six months. That makes an overall starting point of 12 years and six months. That applying totality factor, the Crown submits that between 12 years and six months and 13 years and six months would be appropriate once regard is had to the remaining offending.

[22] With the charge of assisting [victim 4] to provide commercial sexual services which has a maximum of seven years' imprisonment the Crown identify the aggravating features are planning and premeditation, the scale of the offending, the vulnerability of the victim, only 14 at the time and the impact on her and harm caused. The Crown refers to R v Kelly, although the charge there was dealing in a person under 18 for sexual exploitation which carries a maximum of 14 years' imprisonment.4 There the Court fixes a starting point of four years, where a 14 -year-old had been prostituted out four times. The Crown submits in the present case which has half that maximum penalty, three years and six months.

[23] With the balance of charges, a further uplift of six months, that makes a total end starting point of 16 years and six months and on a totality basis the Crown suggests

4 R v Kelly [2018] NZHC 3183.

12 and a half to 13 and a half years be imposed. The Crown does not seek any uplift for previous convictions which do not appear to be relevant here.

[24] The Crown has correctly identified that the end sentence will be a sentence of imprisonment so you Mr Fox will automatically be registered on the Child Protection (Child Sex Offender Government Agency Registration) Act 2016.

[25] The Crown further accepts that you have also pleaded guilty at a very early time and that you would be entitled to a 25 percent allowance for that. As to the s 27 report that has been submitted on your behalf the Crown accepts there are elements of deprivation that could lead to allowances of five percent.

[26] Mr Fox on your behalf submissions and very full submissions have been filed by Ms Sykes and attached to those submissions is a s 27 cultural report and a letter of remorse from you. At the outset it is agreed that in determining the appropriate starting points for the various victims that the supply of drugs to them should be treated as an aggravating feature as the Crown has indicated. Also it is accepted that a separate starting point for the charge of assisting [victim 4] to provide commercial services is also an appropriate approach. Ms Sykes agrees that the starting point in respect of [victim 4] is assessed at four and a half years, excluding the charge of assisting her to provide commercial sexual services. For [victim 3] it is agreed the starting point of four and a half years is appropriate, [victim 2] two years and [victim 1] one year and six months. For the remainder of the offending excluding that charge of assistance, it is agreed that the uplift should be six months.

[27] Where Ms Sykes differs from the Crown is in the charge of assisting to provide commercial sexual services. The Crown submits a starting point of three years and six months and Ms Sykes submits a starting should be around three years. That is on the basis that you Mr Fox were not fully to blame for [victim 4]’s involvement in sex work that was unrelated to you, that the case of Kelly on the facts was more serious and the victim there was exploited to a far greater extent and the defendant Kelly was far more manipulative and actively obstructed the police in the investigation.

[28] The defence says the starting point should be about 16 years and taking into account the totality principle an end start point reduced then to 12 years. On your behalf what is sought is a 10 percent allowance for the matters contained in the s 27 report. Ms Sykes has outlined that that cultural report which is detailed and has been carefully prepared shows the cultural context that you came from and also the sexual abuse and homelessness that you suffered, together with your letter of remorse means that an allowance of 10 percent should be awarded.

[29] I will deal with those submissions relating to Mr Fox before going on to consider and deal with the submissions advanced in relation to Ms Pepene. As both counsel, Ms [Sykes] and Mr Bucher have observed once totality is factored in there is very little difference in starting point between the Crown and defence approach. To clarify, on the charge of assisting to provide commercial sexual services I agree with Ms Sykes that a three year starting point should be adopted on that. That position reflects the fact that this is slightly less serious than the Kelly case but is still serious offending. There is no dispute that for the guilty plea a mitigating factor of 25 percent should be allowed.

[30] As to the s 27 report I think Mr Fox, both you and your brother have recognised that you had had a pretty good upbringing and a stable home life. That is also reflected in your comment in the pre-sentence report Mr Fox. What your brother identified, and I can see, is the problem in the choice between two pathways, you joining a gang and that was your downfall. That was the choice available to you but I think the Crown accepts that there are elements of deprivation and in some ways probably it is a bit of a lottery from the hometown you grew up in as which path you would go down. There are addiction and sexual abuse aspects and homelessness in your background but I also need to balance that up to the predatory nature of this serious offending and the impact that this has had. I do make an allowance of 5 percent for that which brings me to a 30 percent allowance. I will come to pronounce the final sentence after I deal with Ms Pepene’s position.

[31] With you Ms Pepene the Crown accepts that your offending was at a lower end of the scale both in terms of the quantity of drugs and your role. In terms of Zhang v R, the Crown accepts it is in band one and that a starting point of six months'

imprisonment is appropriate. You have no prior criminal convictions. They have accepted your early guilty plea and that a 25 percent allowance should apply. The Crown further accepts that you will be in the range where a community-based sentence could be applied. A cultural report has been filed on your behalf too. That is once again detailed and that does have elements of very serious social deprivation and issues that the Court needs to take consideration of.

[32] In addition to your guilty plea allowance of 25 percent I allow 10 percent for matters raised in the cultural report and a further five percent for your lack of previous convictions. That is about 45 percent or roughly half of the six months. The final sentence is going to be one of three months' imprisonment, which should lead to your immediate release but it will be subject to release conditions.

[33] Mr Fox, this is serious offending against vulnerable persons. Your approach to them was predatory. You gained their trust and you were luring them down a path that could only cause them great harm. Any sentence that is imposed must hold you accountable for the harm you have done against those young persons in the community in general. I make it clear that your offending is totally unacceptable in our society and the sentence must deter you or any like-minded persons from offending in this way in the future.

[34] From a starting point of 12 years, which I accept on a totality basis is the appropriate starting point, I allow you an approximately 30 percent allowance based on your guilty plea of 25 percent and the matters contained in the cultural report which I accept at five percent. I do not give you any further credit for remorse because as my reading of the pre-sentence report you are a long way from having insight and true remorse about your offending. That 30 percent comes to what I calculate as three years and seven months, which will leave an end sentence of eight years and five months.

[35] I will shortly impose that sentence in relation to the charging documents that you face but in my view the prison authorities should focus on addressing your distortion around sexual appropriateness with young people and your problematic drug use. In my view a copy of the s 27 report would be of value to the prison authorities and a copy should be sent to them.

[36] You are sentenced as follows:

• (a) On the charge against [victim 1] of doing an indecent act, one year and three months' imprisonment.
  
• (b) On supplying a Class C controlled drug cannabis to a person under 18, one year's imprisonment.
  
• (c) On doing an indecent act on [victim 2], one year and six months’ imprisonment.
  
• (d) Supplying Class A controlled drug methamphetamine one year and three months’ imprisonment.
  
• (e) Supplying Class C controlled drug cannabis to a person under 18, one years' imprisonment.
  
• (f) Two further charges of supplying a Class C controlled drug cannabis, one year's imprisonment.
  
• (g) Supplying Class A controlled drug methamphetamine, one year and three months' imprisonment.
  
• (h) Supplying a Class C controlled drug to [victim 4], two years and six months' imprisonment.
  
• (i) Possession of a Class A controlled drug methamphetamine for the purpose of distribution, one year and six months’ imprisonment.
  
• (j) Having a Class C controlled drug for the purpose of distribution, one year imprisonment.
  
• (k) Driving while forbidden, convicted and discharged as it is fine-only.
  
• (l) Possession of Class C controlled drug, one month imprisonment.

• (m) Being the operator of a business of prostitution, not being the holder of an operator’s certificate, you will be convicted and discharged as it is fine-only and you will not have any means to pay a fine given the sentences imposed.
  
  • (n) Assisting [victim 4] to provide commercial sexual services, being under the age of 18, two years and nine months’ imprisonment.
    
  • (o) Supplying a Class C controlled drug cannabis to [victim 4], one years' imprisonment.
    
  • (p) Supplying Class A controlled drug methamphetamine, one year and three months' imprisonment.
    
  • (q) On the charge of having sexual connection with [victim 4], a young person aged between 13 and 15 years, four years and five months' imprisonment.
    
  • (r) On the charge of having sexual connection with [victim 3], a young person aged 13, four years' imprisonment and that will be cumulative on the charge of sexual connection with [victim 4].
    

[37] All the other charges will be concurrent, so the end sentence is one of eight years and five months’ imprisonment.

[38] Ms Pepene, on the charges of possession of a Class A controlled drug methamphetamine for the purposes of supply and the charge of possession of a Class C controlled drug cannabis for the purposes of distribution you are convicted and sentenced to imprisonment for a term of three months.

[39] You will have the standard release conditions and following special release conditions for six months after your sentence expiry date. They are set out in full in your pre-sentence report, but in brief:

• (a) It is to not possess, consume or use alcohol or drugs not prescribed to you.
  
  • (b) You are to submit to alcohol and drug testing as directed by your probation officer.
    
  • (c) You are to attend and complete appropriate counselling, treatment and programme.
    
  • (d) You are not to associate with or have contact with your co-offender Mr Fox without the prior written approval of the probation officer.
    
  • (e) You are to attend and complete the appropriate departmental short rehabilitative programme.
    
  • (f) On the charge of not being the holder of an operator’s certificate under the Prostitution Reform Act, that is fine only and because you have been in custody for a period of time and will not have the means to pay a fine you will be convicted and discharged on that, otherwise a substantial fine would have been appropriate.
    

Judge RG Marshall

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 16/02/2024