R v Jamieson [2012] NZHC 2871 (31 October 2012)

Last Updated: 9 November 2012

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

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-019-7493 [2012] NZHC 2871

THE QUEEN

v

ALAN JOHN JAMIESON

Hearing: 31 October 2012

Counsel: AJ Gordon for Crown

PV McGuire for Prisoner

Judgment: 31 October 2012

_{[REDACTED] SENTENCING NOTES OF RODNEY HANSEN J}

Solicitors: Gordon Pilditch, P O Box 740, Rotorua 3040 for the Crown

_{PV McGuire, P O Box 2060, Rotorua 3040 for the Accused}

R V ALAN JOHN JAMIESON HC ROT CRI-2011-019-7493 [31 October 2012]

[1] Mr Jamieson, you appear for sentence having been convicted after trial by jury of one count of sexual violation by unlawful sexual connection, one of attempted sexual violation, a representative count of indecent assault on a girl aged under 12 years and one count of sexual violation by rape.

Facts

[2] The victim, who I will refer to as S,

].

[3] The first act of sexual violation occurred just after her sixth birthday. You took her into the bedroom [ ]. You told her that you would do something to her that happens to big girls and that you felt she was now ready for. You laid her face down on the bed and told her if what you were about to do hurt, then she should scream into the pillow. You then sodomised her. She said she was left with a really sore bottom.

[4] S said that on another occasion when she was aged between six and eight years of age she accompanied you when you took family friends back to Kawerau. [ ] On the way back you took her into the public toilets and changing room by Lake Rotoma. You removed her lower clothing and made her get onto her hands and knees on a bench seat in the toilet. She said that you had your hands around her waist and, it seems clear, that you were about to sodomise her when someone entered the toilet. S said that whoever it was came in said, “sorry” and then left but, because of the interruption, it appears that you did not complete the intended act of sexual violation.

[5] S said that throughout the period [ ], you regularly rubbed her genitalia with your hand. This was skin on skin contact which happened during the daytime. She estimated that these events took place on average three times a month.

[6] The rape occurred in 2001 when S was twelve. She had gone to your house with her sister. [ ] There was no room for her in the car. She was left at home with you. You called her into the bedroom on the pretext of helping you make the bed. You then pushed her back on the bed, removed her lower clothing, pulled down your pants and raped her. Nothing was said. She had a shower because she felt dirty, told your wife when she got home that she felt sick and then walked home. She told her mother that she never wanted to go back to your house again.

[7] S did not disclose the offending until it came out in the course of an argument that she had with her mother in 2011. A complaint was then made to the police.

Victim impact statement

[8] S is now 23 years of age. In her victim impact statement, which you will have read, she speaks of the physical pain caused by the anal rape. She says that you ignored her pleas to stop the indecent assaults. After the later rape, she says she felt anger towards you but also blamed herself for not stopping you earlier. The abuse of her has had long-term consequences. She is easily angered. She has issues with trusting men. I do not doubt also that there is a real risk that further emotional and psychological issues will arise for her in the future. On the positive side, however, she says that with the trial over she feels that a great weight has been lifted from her and I am quite sure that the fact that this abuse has now come out in the open will have been enormously beneficial for her.

Further offending

[9] In 2005 you were sentenced to eight years imprisonment for similar offending against the 10-year-old daughter of a woman [ ]. Over a period of two and a half months in 2004, you took advantage of the absence of the girl’s mother at work to sexually violate her by rape on three occasions, to digitally penetrate her once and on a separate occasion to sodomise her on the bed in circumstances that bear an uncanny resemblance to those recounted at trial by S.

There were also acts of indecency, including your inducing the victim to hold your penis.

[10] The sentence of eight years was reached after Judge Weir took a starting point of eight years, in accordance with the then prevailing authority of R v A,[1] increased to between 10 and 11 years to reflect aggravating features of the offending, then discounted for personal mitigating factors, including the fact that you were essentially, as he described it, a first offender, you had pleaded guilty and you had expressed remorse.

Personal background

[11] You are a 40-year-old man. You have three children now aged 23, 18 and 12 years of age. Following your release from prison, you had some contact with your eldest child and were seeing your youngest son on a supervised basis.

[12] The pre-sentence report states that you have worked for the greater part of your adult life in farming, forestry and in a saw mill. You have generally good health. There are no indications of alcohol or drug abuse issues.

[13] As a result of comments made by Judge Weir in his sentencing remarks, I inquired of counsel in the course of submissions whether I was able to be provided with any further information about your own childhood. As a result, I have been provided with a copy of the pre-sentence report that was presented when you were sentenced in 2005. It does not come as any particular surprise to find from that report that as a child you were yourself subjected to serious physical and sexual abuse. This ultimately is not a mitigating factor but it goes a long way to explaining why you offended in the way you did. It is notorious and a depressing feature of sentencing in these sort of cases that sexual offenders have frequently, if not invariably, been the victims of sexual abuse themselves as children and end up acting

_{out what was perpetrated on them.}

[14] You have, however, continued to deny this earlier offending. According to the pre-sentence report, you declined the opportunity to attend a programme for sexual offenders while in prison, although I note Ms McGuire’s advice that you say you were denied the opportunity to attend because you were not assessed as of a sufficiently high risk. If that is the case, it surprises me. However, you did complete a relapse prevention plan and, I am told, had one-on-one counselling which has helped you to understand high risk factors and to develop relapse prevention strategies.

[15] The probation officer reports that you have a basic understanding of potential high risk situations for yourself and accordingly you are assessed as at moderate risk of further sexual offending. She recommends that you complete one of the specialist programmes for sexual offenders and, as I will mention later on in my remarks, I strongly endorse that recommendation.

Sentencing

Approach to sentence

[16] I accept Ms Gordon’s submission that the offending itself, which I will refer to as the trial offending, comprises a connected series of offences and that concurrent sentences are appropriate. Normally a starting point for the lead offence, or most serious offence, would be fixed by reference to the totality of the offending.

[17] However, as you have heard in the submissions of counsel, the intervention of a sentence of imprisonment for the subsequent offending requires that I have regard to both sets of offending when sentencing you. That is because I must impose a sentence for the trial offending which will lead to an overall sentence that appropriately reflects the totality of the offending. That was the principle that was established in a case called R v Nuku[2]. It requires that I determine the appropriate

_{sentence to be imposed on you as if you had been sentenced on one occasion for all}

the offences on which you have now been convicted. I then deduct from that sentence the sentence that has already been imposed on you.

Aggravating features

[18] For the purpose of assessing your culpability overall, there is substantial agreement as to the key aggravating factors. They are, first of all, the breach of trust involved. [ ] you were in a special position of responsibility and trust. You abused that trust with her, as you did with the later offending. She was aged between six and twelve years over the period and was especially vulnerable.

[19] It is relevant also that the offending occurred over a period of almost seven years and involved repeated sexual indecencies. There was also, I accept, an element of premeditation although, generally, it was a matter of your taking advantage of opportunities when they presented themselves.

[20] Although it is not a mitigating factor it is relevant, however, to your culpability overall that there was no violence or abusive conduct over and above what was directly associated with the offending and the serious acts of sexual violence against S were relatively isolated. The abuse mainly took the form of indecent touching.

[21] Broadly similar aggravating factors apply to the later offending although, of course, that involved serious acts of sexual violation over a relatively short time span.

Totality

[22] I now turn to consider what would be the appropriate starting point for sentence were I to be sentencing you for all offending. For this purpose, the starting

point is governed by the guidelines in a case called R v AM[3] which applies to all sentencing after 31 March 2010.[4]

[23] There is broad agreement between counsel that the offending overall falls within the top of band 3 (for which a starting point of between 12 and 18 years is stipulated) and the bottom of band 4 (which stipulates a sentencing band of between

16 and 20 years). Repeated sexual offending against children in family situations involving, as they do, vulnerable victims and a breach of trust, will invariably attract a sentence within that range.

[24] Ms McGuire submits that I should also have regard to sentencing levels around 2005 when a sentence notionally would have been imposed. I accept that, as a matter of principle, sentence should reflect sentencing levels prevailing at the time that sentence would have been imposed, the approach favoured in cases such as R v Shepherd[5] and R v Clapperton.[6] However, I am not convinced that this would lead

to a significantly reduced starting point. As was said in R v AM,[7] the content of the

guidelines identified does not differ significantly from what many sentencing judges had been doing in reliance on more recent appellate authority. And, as the review of sentencing decisions in the case of R v S[8] shows, repeat sexual offending against children in family situations from 2000 on was attracting starting points in the region of 13 – 19 years.

[25] Taking all of the circumstances into account, I consider a starting point of 16 years would have appropriately reflected the totality of the offending. There are no aggravating or mitigating factors personal to you other than those which apply to reduce the sentence imposed by Judge Weir. Assuming, in your favour, that the discount was three years, the difference between the starting point I have reached for the totality of the offending (16 years) and the starting point for the 2004 offending

_{(11 years) is five years. That means that the total sentence will be 13 years - that is,}

a total of 16 years, less a discount of three years for mitigating factors relating to the

2004 offending.

[26] If you wouldn’t mind standing at this point and I will formally impose

sentence on you, Mr Jamieson.

Sentence

[27] On each of counts 1, 2 and 4 - the counts of sexual violation and attempted sexual violation – you are sentenced to a term of five years imprisonment.

[28] On count 3 – the count of indecent assault – you are sentenced to three years imprisonment.

[29] All sentences are to be concurrent but cumulative on the sentence of eight years imprisonment imposed on you in 2005.

Recommendation

[30] I make the strongest possible recommendation that you undertake one of the specialist sexual offender programmes available in prison before you are released. Although you denied the offending involving S, the case against you, Mr Jamieson, was compelling and it was no surprise at all that the jury swiftly found you guilty. You plainly have a serious problem, as you were prepared to admit in relation to the later offending. I accept that you have already received some treatment and counselling to deal with it. But my view is that your problems are deep-seated and that you will benefit enormously from undergoing appropriate specialist treatment while you complete your prison sentence.

[31] You may stand down, Mr Jamieson.

---

[1] R v A [1994] 2 NZLR 129.

[2] R v Nuku [1969] NZLR 343 and endorsed in R v O’Leary CA258/05, 3 March 2006 and R v

Afeaki HC Auckland T031488, 10 December 2003.
[3] _{R v AM [2010] NZCA 114; [2010] 2 NZLR 750; (2010) 24 CRNZ 540 (CA).}
[4] _{R v AM at [125].}
[5] _{R v Shepherd HC Palmerston North CRI-2009-454-13, 15 September 2010.}
[6] _{R v Clapperton HC Napier CRI-2010-020-001694, 13 December 2010.}
[7] _{R v AM at [125]}
[8] R v S CA64/06, 15 June 2007.