R v Bailey [2012] NZHC 1276 (8 June 2012)

Last Updated: 22 June 2012

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-019-6530 [2012] NZHC 1276

THE QUEEN

v

FREDERICK BAILEY

Charges: Sexual exploitation of a person with a significant impairment (3); Indecent assault (4); Doing an indecent act with intent to offend (2)

Plea: Guilty

Counsel: SN Cameron for Crown

RAB Barnsdale for Prisoner

Sentenced: 8 June 2012

Preventive Detention; minimum term of eight years’ imprisonment

_{SENTENCING NOTES OF BREWER J}

SOLICITORS

Almao Douch (Hamilton) for Crown

_{Richard Barnsdale (Hamilton) for Prisoner}

R V BAILEY HC HAM CRI-2011-019-6530 [8 June 2012]

Introduction

[1] Mr Bailey, you appear today for sentencing on sexual offending against two young men. You pleaded guilty to all of the charges with which I am concerned. The charges in respect of your first victim, SC, are contained in an indictment. The first three counts are that on or about 1 August 2011 at Hamilton you had exploitative sexual connection with your victim, he being a person with a significant impairment. The third count is a representative count. That means that the offence occurred at least once but that it is alleged it occurred more than once. In this case the summary of facts to which you have pleaded guilty refers to three separate incidents of the particular form of exploitative sexual connection (anal intercourse), and that is the basis upon which I will approach your sentencing.

[2] The fourth count in the indictment is one that you have not pleaded guilty to. The Crown has told me it will offer no evidence on that count and you are accordingly discharged under s 347 of the Crimes Act 1961. That has the effect of an acquittal and I need not consider the count any further.

[3] You have also pleaded guilty to six charges against your second victim, HC. You pleaded guilty to these charges prior to committal and accordingly no indictment has been filed. The charges are before me for sentence because they were transferred to this Court by the District Court for consideration of a sentence of preventive detention. There are four charges of indecent assault and two charges of doing an indecent act with intent to offend. I say at this point that only the four charges of indecent assault will be relevant to the decision I will have to make as to preventive detention. The two charges of doing an indecent act with intent to offend are not charges which are relevant to that examination.

Facts

(a) SC

[4] On or about 1 August 2011, you met and befriended SC in the Hamilton

CBD. He was 19 years old with a mild intellectual disability and foetal alcohol

syndrome. He falls into the bottom 3% of persons for verbal comprehension skills, working memory and processing speed. His communication skills for his age equivalent score were of a child aged five years and 10 months.

[5] You offered your victim a gardening job and encouraged him to return to your home with you. He did. Once there, you gave him alcohol to the point that he became very drunk. You took him into your bedroom. There you lay on the bed with your victim while you played a pornographic video featuring homosexual activity.

[6] In the early part of the evening, you masturbated your victim and performed oral sex on him. He performed oral sex on you.

[7] Later in the evening of 1 August 2011, you had unprotected anal sex with the victim. The victim stayed the night at your house and the next morning you again had unprotected anal sex with him. Afterwards you drove the victim back into town and dropped him off in the Hamilton CBD.

[8] In the following days you made contact with the victim by calling him at home. On or about 5 August 2011, the victim came back to your house. You again had unprotected anal sex with him.

[9] Your explanation to the Police at the time was that your victim had consented to all of the sexual activity. You said that you did not believe he had a significant mental impairment and thought that he was just quiet.

(b) HC

[10] Your second victim was a 17 year old male. HC has a moderate intellectual disability. His IQ level indicates that more than 99% of people his age perform at a higher level.

[11] Around July 2011, you made friends with this victim and his mother while carrying out gardening jobs on her section. You offered your victim money to come over to your house to do gardening and other chores.

[12] Between 18 July 2011 and 9 August 2011, the victim went to your house. Upon answering the door, you placed your hands down your trousers and touched your penis in the clear view of the victim. Once inside the house you gave the victim orange juice and sat with him on the couch. At one point you groped his penis with your hand on the outside of his clothing, pretending that was by accident. A short time later you squeezed his bottom. Your victim was feeling uncomfortable and you offered him wine. Subsequently you asked him to come to your bedroom to give you a massage. Your victim did that. You then got him to lie on his stomach for a massage. You placed your hands down his trousers and began rubbing his bottom. Later you returned to the living room, sat with him on the couch, and began rubbing your victim’s inner thigh area. The victim, who had been reluctant throughout, pushed your hands away, saying “I don’t like it”. Shortly after he left your address, despite your efforts to persuade him to stay.

[13] Some two days later, the victim returned to your address and you offered him alcohol which he declined. On six different occasions during this incident you performed indecent acts on yourself in front of the victim. This involved you putting your hands down your trousers and rubbing your penis and bottom in clear view of the victim.

[14] When spoken to by the Police you denied the allegations and declined to make a statement.

Victim Impact Statements

[15] I have seen victim impact statements prepared by or on behalf of your victims.

[16] Your most serious offending was against SC. The impact upon him has been severe. He suffers extreme paranoia and anxiety; he no longer trusts people and has

become isolated. He is confused and concerned about his own sexuality. He cries a lot, has difficulty sleeping, and believes that his life has been destroyed. He has lost a lot of his ability to function on a day-to-day basis and all of this has impacted on, particularly, members of his family who have to care for him.

[17] HC’s victim impact statement reflects the much lesser degree of seriousness of your offending. He reports embarrassment but he is not angry with you.

Finite sentence

[18] The main question for me today is whether you should be sentenced to a lengthy finite sentence or to a sentence of preventive detention. You have previously been sentenced to a sentence of preventive detention but this was overturned on appeal and instead you served a finite sentence. I do not need to explain to you the difference between the two sentences. At this stage, what I am going to do is look at what a finite sentence would be if one were imposed. I will then consider the issue of preventive detention.

[19] The charges of exploitative sexual connection with an intellectually disabled person are the most serious. I will take count 3 in the indictment, which is the representative charge that you performed anal sex upon your victim, as being the lead offence. The Crown has submitted that a preliminary starting point of six years’ imprisonment would be appropriate for your offending against SC. Having looked at the cases, I agree with that submission. I also have to factor in the offending in respect of your second victim, HC. Having looked at the cases, I would adopt a starting point of 16 months’ imprisonment for that offending. Looking at the totality principle, I would adopt a starting point for all of your offending against both victims of seven years’ imprisonment. I will be coming to your history of sexual offending against others shortly. At this point I simply note that it would justify an uplift of two years’ imprisonment.

[20] The offending also occurred in breach of special conditions of an extended supervision order to which you were subject at the time. That would warrant an uplift in your sentence of another six months. The starting point would be in total

nine-and-a-half years. You would be entitled to a reduction for your pleas of guilty. While these were not all entered at the first available opportunity, I would fix that at around 20%, giving a reduction of two years and resulting in a final sentence of seven-and-a-half years’ imprisonment. I could justify, on the facts and against your history, a minimum term of imprisonment of five years.

Preventive Detention

[21] As I have said, the real issue for me is whether you should be sentenced to preventive detention instead of the finite sentence I have just outlined. It is important to note that the primary purpose of a sentence of preventive detention is not to punish, but to protect the community from those who pose a significant and

ongoing risk to the safety of its members in the future.1

[22] Section 87(2) of the Sentencing Act 2002 prescribes three conditions before preventive detention may be imposed. The first two clearly exist in your case. They are that you must have been convicted of a qualifying sexual offence and that you must have been 18 years or over at the time of the commission of that offence.

[23] Your previous qualifying offences are:

_{Date of offending Charge Result}

22 July 1988 Indecent assault on boy between 12-16

14 August 1988 Indecent act with boy

12-16

14 August 1988 Induce/permit boy 12-16 do indecent act

5 November 1990 Indecent assault on boy between 12-16

28 March 1993 Indecent assault on male over 16

1 April 1995 Indecent assault on male over 16

25 January 2000 Indecent assault on boy between 12-16

1 December 2002 Indecent assault on boy between 12-16

11 months’ imprisonment

11 months’ imprisonment (concurrent with above sentence)
11 months’ imprisonment (concurrent with above sentences)

9 months’ imprisonment

6 months’ non residential

periodic detention

6 months’ imprisonment

1 year 10 months’

imprisonment

5 years’ imprisonment

1 R v C [2003] 1 NZLR 30 (CA) at 5–6; R v Dean CA173/03, 17 December 2004.

[24] The third condition is that I must be satisfied that you are likely to commit another qualifying sexual offence if you are released at the sentence expiry date of any finite sentence I might impose.

[25] In examining whether you are likely to commit another qualifying sexual offence if released at the end of your finite sentence, I must take into account the factors set out in s 87(4) of the Sentencing Act. These are:

(a) Any pattern of serious offending disclosed by your history. Up until your 1 December 2002 offending, it could be said that your offending was not serious in the way this section contemplates. Indeed, the Court of Appeal took that view in overturning your previous sentence of preventive detention. But with your current offending now providing further context, I am satisfied that such a pattern exists.

(b) The seriousness of the harm to the community caused by the offending. The seriousness of the harm you have done is graphically illustrated by the victim impact statement relating to your victim, SC. You have also targeted two intellectually impaired teenagers. That is a vulnerable group in our society and they need special protection.

(c) Information indicating a tendency to commit serious offences in the future. I have received and read reports of two health professionals. They are Dr Edward Green and Dr JB Ruzibiza. Dr Green says that you are at very high risk of re-offending sexually. Likely victims are vulnerable, adolescent males unknown to you. You will repeat your use of grooming strategies. You have proven either unwilling or unable to comply with conditions of your extended supervision order which you were subject to at the time of the offending. Indeed, of the

15 breaches of your extended supervision order between 2007 and

2011, five of them involved contact with persons under the age of

16 years. Dr Ruzibiza concentrated more on your current risk. The conclusion was that you are currently at a high risk of committing further sexual offences against prepubescent males or young men of

low intellectual ability. The doctor was of the view that nothing presently suggests that your offending is likely to increase in frequency or severity but your prospects for remedial treatment being successful are poor.

(d) The absence or failure of efforts by you to address the causes of the offending. You have had a great deal of assistance in the past. You have exited from the STOP programme twice due to re-offending. You have undertaken the Kia Marama programme but at the end of that treatment you had made very few gains. You have undertaken two separate courses with individual psychological counselling. Your offending has persisted despite being subject to an extended supervision order. The point is that you have not been able to or will not change. The reports are very clear that you remain in denial about your offending and that you lack insight into it.

(e) The principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. Nothing in your record shows that a lengthy determinate sentence is adequate to protect society. You committed these offences last year at the age of 61 years. The deliberate nature of your offending and your comments that restrictive supervision conditions stopped you from going to gay bars to obtain sex with older males lead me to conclude that age is not diminishing the risk you pose to society.

[26] As I remarked earlier, you have already been sentenced to a period of preventive detention but this was overturned by the Court of Appeal on 22 July 2003. On that occasion the Court substituted a sentence of imprisonment of five years with a minimum non parole period of three years. Your lawyer has advised me this morning that the Parole Board required you to serve virtually the full term of that five years sentence. As I read through that decision, I see echoes of your current offending. For example, your offending in that case related to arranging for a teenage boy to come to your home to do odd jobs. You offered him alcohol and invited him to watch a videotape while sitting on the couch in the lounge. Your

offending then has similarities to your offending against HC. At the time of that offending you were on parole from your previous conviction for sexually abusing a young male. At that time the Court of Appeal said of you:2

There is no question that the appellant is a serious candidate for the sentence of preventive detention under s 87 of the Sentencing Act 2002. His pattern of offending indicates a paedophile with a high risk of re-offending, low motivation to address his problems and in particular his alcohol dependency and poor responses to previous treatment efforts.

[27] The problem for the Court of Appeal was that your offending to that point, although repetitive, was at the lower end of the scale. The Court held that offending at the level exhibited to that point did not justify a sentence of preventive detention “without first there having been a lengthy finite sentence as, in effect, a final warning

and chance to address underlying problems”.3

[28] The Court of Appeal then gave you that lengthy finite sentence which was, in effect, a final warning and chance to address your underlying problems.

[29] As your subsequent history of breaches of the extended supervision order leading to your current offending demonstrates, you did not take that chance. Further, the offending in respect of SC is of a considerably more serious type than that which had gone before.

[30] In these circumstances I have no hesitation at all in concluding that you are at such a high risk of serious re-offending that I must impose a sentence of preventive detention on you.

Minimum period of imprisonment

[31] I am required to impose a minimum period of imprisonment which must not be for less than five years and it must be for the longer of:4

_{(a) The minimum period required to reflect the gravity of the offence; or}

2 _{R v Bailey CA102/03, 22 July 2003, at [9].}

3 Ibid, at [20].

4 Sentencing Act 2002, s 89(2).

(b) The minimum period required for the safety of the community in light of the prisoner’s age and the risk posed by that prisoner to the safety of the community at the time of sentencing.

[32] Following the two-step approach in R v C,5 I must first assess what minimum period properly reflects the gravity of your offending. Then, I must consider whether that period is adequate for public protection purposes in the light of your age and the risk posed by you at this time.

[33] I consider that six years’ minimum non parole is necessary to reflect the gravity of your offending. Having considered, in particular, the report of Dr Green, I consider that an uplift is necessary to achieve the safety of the community in the light of your age (61 years) and the high risk you pose to the community’s safety at the present time. I assess that uplift as two years, bringing the total minimum period of imprisonment to eight years. After that, as your counsel has said, it will be up to the Parole Board to assess your potential for further offending.

Sentence

[34] Mr Bailey, on each of the counts in relation to SC, and on each of the charges of indecent assault with respect to HC, you are sentenced to preventive detention with a minimum term of eight years’ imprisonment. On both of the charges of doing an indecent act with intent to offend in relation to HC, you are sentenced to

12 months’ imprisonment. Those sentences are to be served concurrently with each

_{other. You may stand down.}

_{Brewer J}

5 R v C [2003] 1 NZLR 30 (CA) at 11.