R v Fairburn [2014] NZHC 120 (11 February 2014)

Last Updated: 23 June 2014

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2013-088-000461 [2014] NZHC 120

THE QUEEN

v

_{LINDSAY ROBERT FAIRBURN}

Hearing:	11 February 2014
Appearances:	M B Smith for Crown S K Ellis for Defendant
Judgment:	11 February 2014

_{SENTENCING NOTES OF ANDREWS J}

Solicitors:

Crown Solicitor, Whangarei

S K Ellis, Barrister, Whangarei

R v FAIRBURN [2014] NZHC 120 [11 February 2014]

Charges

[1] Mr Fairburn, you appear for sentencing today having pleaded guilty to one representative charge of rape of a girl under the age of 12, one (again) representative charge of inducing a girl under 12 to do an indecent act, and one charge of indecent assault on a girl aged between 12 and 16. Your offending was between 1970 and

1985. Under the law that applied at the time, you are subject to a maximum sentence of 14 years imprisonment on the charge of rape. The maximum sentence on the charge of inducing an indecent act is 10 years, and the maximum sentence on the charge of indecent assault is seven years.

[2] You entered guilty pleas to the three charges in this Court on 28 November

2013. Convictions were not entered at that hearing. I now formally convict you on each of the charges. I note that I am not required to issue a “three strikes” warning, as your offending occurred before the relevant legislation came into force.

Relevant facts

[3] The victim is your daughter. From the time she started school, you would take her from her bed and carry her to your bed. You would put your hand inside her pants and feel around her vagina. You also got her to masturbate you. This happened in every room of the house. Further, you would ejaculate on her face and in her mouth.

[4] On the occasions when you took the victim to your bed, you would also remove her lower clothing, get on top of her and you raped her. She would scream in pain. Those occasions have led to the representative rape charge.

[5] In 1981 your children went to live with their mother. In late 1983 the victim returned to live with you and your partner. In late 1983, the victim and her step brother were left home alone. They located alcohol and began drinking it. They became intoxicated. You came home, stripped the victim’s clothes off her and attempted to sober her up in the bath. You laid the victim on the floor of the bathroom and locked the door. You began masturbating, and repeated “just try it one more time” to the victim. You removed your lower clothing and got on top of her.

The victim screamed “not again, not again.” Your partner arrived home, you told her that you were only trying to sober the victim up and you got her dressed.

[6] The victim left the family home in 1983, after having made a complaint about you, which was dealt with by way of a family meeting with a social worker. The victim then made a formal complaint about you to the police in 2006.

Victim impact statement

[7] You heard the victim impact statement read out in Court this morning. I am sure it has been referred to you previously. It made harrowing reading. I find it difficult to express the extent of the harm, both physical and mental, that you inflicted on her. Mr Smith accurately, in my view, described the effect of your offending on the victim as being dramatic and drastic, and having dominated the victim’s life since then. The fact that I will speak only briefly about what your daughter said is not to be taken, in any way, as belittling or minimising the extreme trauma caused by your offending.

[8] Your daughter should have had been given security, love, and support, and she was entitled to have values, morals, and proper boundaries set for her. She had none of these. You robbed her of her innocence and you betrayed her, in order to satisfy your own desires. I understand, as she says, that she grew up insecure and full of hate, not trusting anyone, not feeling safe with anyone. It is abundantly clear that your victim has suffered as a result of your offending for the whole of her life.

Pre-sentence report

[9] I turn now to consider the pre-sentence report. You are 67 years old. I understand your parents died when you were young. You and three of your siblings then looked after yourselves with the help of neighbours. I understand you have been in a stable relationship for some 35 years. You are now retired but you worked in various ways as machinery owner/operator before your retirement.

[10] I am told that you suffer from ill health. You have vertigo, a heart condition, and high blood pressure. I am told that you lost 50% of mobility on the left side of

your body after an accident in the 1980s. I understand that you suffer from mild to moderate cognitive impairment, but not to such an extent that you would have been unfit to stand trial had that gone ahead.

[11] On 24 February 1993, you were convicted of indecent assault on a girl under 12. The victim in that instance was your daughter (the present victim’s half sister). You were sentenced to two years’ imprisonment. It is recorded that during your sentence you completed the Te Ao Marama programme for sexual offenders. I understand you have not offended since then.

[12] The writer of the pre-sentence report said that you cannot explain your offending, and said “it must be another side of me”. You also said that at the time of the offending you were trying to cope with the breakdown of your relationship, you were working full time, and trying to care for three children. You also said that you were a victim of sexual abuse yourself, from members of your own family. In the report it is said that you showed insight, remorse and empathy in respect of your offending. It was said that you have supported the victim financially following a car accident.

[13] The pre-sentence report writer recommended a sentence of imprisonment. Your risk of re-offending in the same manner was assessed as being medium-high. As your offending period included multiple victims, in a family setting, over an extended period of time, your risk to others was assessed as being high. I note at this point Ms Ellis’ submission, in the course of her submissions on your behalf that, in essence, that assessment could not be said to apply to you now given your age and the current state of your health.

Sentencing process

[14] The first step in sentencing any offender is to establish a starting point. The starting point is the sentence that would be imposed on the most serious of the charges on which you have been convicted, in your case that is the charge of rape, if you had been convicted after a trial in court. The second step is to then to make any adjustments that are needed to the starting point to arrive at the appropriate final sentence. Those adjustments are made by considering aggravating or mitigating

factors of your offending, that would lead me to impose a sentence that is greater or less than the starting point. I also consider matters that relate to you, personally, because they may also lead me to adjust the sentence.

[15] When I sentence you I have to take into account the purposes and principles of sentencing. Regarding the purposes, I have to hold you accountable – to make you responsible for your offending. I also have to consider deterrence – of you and others – and consider whether there is a need for protection of the community. I must also denounce your offending – in simple terms that means to tell you that your offending is completely unacceptable. At the same time, the purpose of sentencing any offender is to help the offender to get back into the community and to be a useful member of it.

[16] In your case the relevant principles of sentencing are the gravity of your offending, including your own culpability in that offending, the seriousness of your offending in comparison with other types of offences, and the general desirability of keeping consistency in sentencing levels for similar offending. I must take into account the information provided about the effect of your offending on the victim, and I am also directed to impose the least restrictive outcome that is appropriate in the circumstances. Further, I must take into account any particular circumstances relating to you that mean that any particular sentence would be disproportionately severe.

[17] While it is desirable to keep offenders in the community as far as that is practicable with regard to the safety of the community, the Court can impose a sentence of imprisonment in order to achieve the purposes of sentencing that are relevant to your case. In your case, I am satisfied that a sentence of imprisonment is appropriate, and indeed it must be considered inevitable.

Starting point

[18] I come now to the starting point. As I said earlier, I set the starting point by reference to the conviction on the charge of rape. I look first at whether there any features of your offending which make it more serious. As Mr Smith submitted for the Crown, violence is inherent in any act of sexual violation, as is psychological and

physical harm to the victim. However, I accept his submission that in offending against your daughter you abused the trust that is inherent in a family relationship. Your victim was entitled to receive love and support, but instead received repeated sexual abuse. Further, the victim was particularly vulnerable due to her age and family situation. I also accept that the repeated nature of the offending, over an extended period of time, shows a degree of pre-meditation – that is, thinking about the offending, planning for it, and carrying it out.

[19] Ms Ellis accepted that the Crown analysis of the various features of your offending was helpful in the sentencing exercise. She accepted that your offending was serious, and she did not seek to down-play the impact of your offending on the victim. On your behalf she acknowledged the terrible impact on the victim.

[20] I need hardly say that there are no features of your offending which would make it less serious.

[21] Mr Smith submitted for the Crown that I should adopt a starting point of around five years imprisonment for the charge of rape, to reflect the violence and harm that is inherent in such offending as well as the abuse of trust and your victim’s vulnerability. He then submitted that there should be an uplift from the starting point to reflect the fact that the charge is a representative one – what that means is that while there is only one charge, it is recognised that the offending occurred on more than one occasion. In essence, Mr Smith arrived at an adjusted starting point of about eight years imprisonment.

[22] Ms Ellis submitted that had you been sentenced at the same time as you were sentenced for the offending against the victim’s half sister the analysis, while it might have been similar, would have resulted in a much shorter starting point. She discussed in fact a sentence of around five years imprisonment.

[23] On other matters relevant to your sentence Ms Ellis submitted that your guilty plea must be regarded as a significant factor. She submitted to me that a guilty plea in relation to the offending to which you have now pleaded guilty is of much greater consequence to you than it might be to a person admitting to offending of a

different type. This is because the particular nature of your offending, she submitted, is likely to have a much greater impact on your experience in serving a prison sentence. Further, as she submitted, the guilty pleas mean that your victim does not have to suffer the trauma of coming to this Court and giving evidence.

[24] Ms Ellis also referred to your health issues and submitted that there is likely to be a greater impact on you in serving a prison sentence as a result of those issues. As you will have heard, Ms Ellis questioned the quality of the health care available to you.

[25] Further, Ms Ellis submitted that there is a real indication of the remorse that you have felt of your offending clearly demonstrated, she submitted, by the fact that you have lived a blameless life since you were released from the previous prison sentence after you had completed the sex offenders’ programme. She submitted that for the 23 years since then you have done no further harm. She submitted that that demonstrated your degree of commitment and the insight you have into your offending and the remorse you feel in respect of it. She submitted there has been none of the repeated offending that is, she submitted, common with offending of this kind.

[26] A Judge sentencing on a case of historical sexual abuse should fix a starting point based upon the sentencing levels at the relevant time of the offending, and taking account of the aggravating features of the offending.¹ I look to the period in the 1970s and 1980s. I turn now to look at starting points adopted in cases which have some similarity to yours and that is bearing in mind, of course, that no two cases are ever identical.

[27] In R v RKM, a sentence in 2009 in respect of historic offending, a starting point of 10 years imprisonment was adopted for four counts of rape and 14 counts of indecent assault.² That offending had occurred between 1962 and 1974 and it was against the offender’s two daughters and a cousin. The offending included indecent

_{assaults and rape.}

¹ See R v Clark [1987] 1 NZLR 380 (CA), R v RKM HC Hamilton CRI-2009-419-52, 5 November

_{2009 at [46], and R v Megchelse [2013] NZHC 251.}

² R v RKM, above n 1.

[28] In R v Seddon, a starting point of eight years imprisonment was adopted on one representative charge of rape.³ The prisoner had raped the victim over a nine year period from 1964 – 1973.

[29] In R v R, a starting point of five years was adopted for sexual offending against the prisoner’s daughter, granddaughter, and his partner’s daughter.⁴ The starting point related to a single charge of rape which had occurred in 1983.

[30] In R v AF, which IS a sentencing judgment of mine, I adopted an adjusted starting point of eight years six months imprisonment on four charges of rape, two charges of attempted rape and 13 charges of doing an indecent act on a young girl.⁵

That offending had occurred between 1959 and 1971 and the victims were the

offender’s two daughters.

[31] I note Ms Ellis’ submissions which were, in essence, that I should approach your sentencing as if I were sentencing you at the same time as you were sentenced in respect of your offending against this victim’s half sister. That is of course not what is happening today and I do not consider it possible to approach this sentencing on that basis. However, as I will note later I do take into account the fact of the sentence you served at that time.

[32] I consider that the representative charge of indecency with a girl under 12 cannot be separated from the rape charge and I propose to treat that charge as aggravating the rape charge. On the cases that I have referred to I have concluded that an appropriate starting point offending by rape during the period of the 1970s would be at least five years’ imprisonment. I take into account in your case, that the rape charge is a representative one.

[33] Taking into account the aggravating features (including the charge of inducing an indecent act), I have concluded an appropriate starting point is eight years’ imprisonment. An uplift of six months is appropriate to take the later indecent

_{assault charge into account, where you again offended against the victim after she}

³ _{R v Seddon HC Timaru CRI-2008-076-2301, 15 October 2009.}

⁴ _{R v R (CA60/08) [2008] NZCA 318.}

⁵ R v AF HC Rotorua CRI-2007-63-5157, 18 September 2009.

had been living away from you for two years and was additionally vulnerable due to intoxication. That results in an uplifted starting point, before I consider personal circumstances, of eight years six months imprisonment.

Personal factors

[34] I turn now to consider matters that do relate to you, personally.

[35] First, I acknowledge your age and health issues. Age alone is not a significant mitigating factor; although a sentence may be reduced to take account of the fact that the offender’s age means that the sentence will be appreciably harsher in its impact.⁶ I have concluded that a discount of 12 months is appropriate for that factor. A further discount, I have concluded, is appropriate to reflect the fact that you have not offended since your earlier sentence, and also to give some consideration to

the totality of your offending over that period. I will allow a further discount of 12 months, to bring the adjusted sentence to six years and six months imprisonment

[36] Finally, you are entitled to a discount on account of your guilty pleas. While as Ms Ellis acknowledged they were not entered at the earliest opportunity, the effect of the guilty pleas is that the victim is not required to give evidence in trial which would require her, essentially, to re-live the trauma that she suffered at the time. I regard this as a significant factor and will therefore allow a further 25 per cent discount which would bring the end sentence to four years and nine months imprisonment. Would you please stand.

Sentence

[37] Mr Fairburn, I impose the following sentences, all of which are to be served concurrently:

(a) On the charge of rape you are sentenced to imprisonment for 4 years and 9 months;

⁶ See R v Megchelse, above n 1 at [48].

(b) On the charge of inducing an indecent act you are sentenced to imprisonment for 3 years;

(c) On the charge of indecent assault you are sentenced to imprisonment for one year.

[38] Your effective sentence is 4 years and 9 months imprisonment.

Publication

[39] After the sentencing hearing, Mr Smith applied for an order, pursuant to s 203 of the Criminal Procedure Act 2011, for an order that the statutory prohibition of publication of Mr Fairburn’s name not apply. I have received a statement signed by the victim, in which she states that she is over the age of 18 years, she understands that the statutory prohibition is for her protection, that removal of the prohibition will mean that Mr Fairburn’s name will be made public, and that she will be able to be identified. She states that she understands the nature and effect of her decision to seek lifting of the prohibition.

[40] There may be some uncertainty as to whether the appropriate statutory provision is s 202 of the 2011 Act or s 139(2A) of the Criminal Justice Act 1985. That uncertainty is of no moment, as the relevant provision in each Act is to the same effect. I am satisfied that it is in order for the statutory prohibition to be lifted, and I so order. There is no prohibition on publication of Mr Fairburn’s name, or of any

_{material that identifies his victim.}

Andrews J