R v Page [2016] NZHC 2762 (18 November 2016)

Last Updated: 3 August 2019

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

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-044-3928 [2016] NZHC 2762

THE QUEEN

v

RICHARD PAGE

Hearing:	18 November 2016
Appearances:	N Webby for the Crown L B Cordwell for the Defendant
Sentence:	18 November 2016

SENTENCING NOTES OF EDWARDS J

R v PAGE [2016] NZHC 2762 [18 November 2016]

Solicitors: Crown Solicitors, Auckland Counsel: L Cordwell, Auckland

Introduction

[1] Mr Page, you appear for sentence today having pleaded guilty to six charges of sexual conduct with a young person under the age of 16 years. Four of those charges are for sexual connection;¹ and two of them are for doing an indecent act.² The maximum penalty for the sexual connection charges is 10 years’ imprisonment. The maximum penalty for the indecent act charges is seven years’ imprisonment.

The offending

[2] I turn now to the offending which led to these charges.

[3] You befriended the victim (whom I shall refer to as “A”) when he was approximately 10 years old. He was in a vulnerable position as his father passed away when he was young. He was drinking alcohol, having relationship issues with his mother, and not performing at school.

[4] A would visit you at the DVD store where you were working. You would allow him to hire DVDs and Playstation games for free; purchased him cigarettes and provided him with money to purchase alcohol. In essence, you groomed him over a period of four to five years.

[5] The first sexual offending happened when A was 12 years old. You watched pornography together and you suggested to him that he masturbate while watching. A week or two later, when you were again watching pornography, you placed your hand on A’s penis and began to masturbate for him. You told him that “this is what boys do”. You performed oral sex on A on that occasion, telling him that “It’s all right”. You then asked A if he would like to “do anal” telling him that it was part of the “learning curve” towards having sex with females. You and the victim engaged in anal

¹ Crimes Act 1961, s 134(1).

² Crimes Act 1961, s 134(3).

sex for about five minutes before A brought it to a halt, telling you that he did not want to do this anymore.

[6] But that was not the end of it. When A was 14 years old he visited you at your address. He was drunk and in a vulnerable position. You again engaged in anal sex. Between 1 January 2010 and 30 September 2014 you continued to ask A if he would engage in further sex but he refused those offers. Each time he refused you would get upset with him and ignore him.

[7] On 8 March 2015, A was again at your home address watching pornography with you. You began masturbating him, and you performed oral sex on each other. You also engaged in anal sex at this time and that involved further acts of masturbation by you. A said he felt grossed out and stopped this activity as “it did not feel right”.

Personal circumstances

[8] In terms of personal circumstances, you are 62 years old. You have three adult children with whom you maintain contact. Your son in particular is supportive of you although the circumstances of your offending make that very difficult for him. You are also a grandfather.

[9] You have disclosed a history of sexual abuse. The reports I have received are in conflict as to when this abuse started and who perpetrated it. One report notes that it commenced at age 14 and the perpetrators were scout masters. Another report notes that it started when you were 17 years old, and was perpetrated by a family friend. The discrepancy in accounts is somewhat surprising but I accept for the purposes of this sentencing that you have been a victim of sexual abuse.

[10] In 1998 you were convicted of three charges of indecent assault on a boy under
12. That involved touching the penis of an eleven year old boy whilst he stayed with you and your family at a Christian camp. You received a suspended sentence of one year’s imprisonment for that offending. That offending is relevant to the consideration of preventive detention to which I will later refer.

Victim impact statements

[11] A refused to make a victim impact statement because he does not want to have anything to do with you and he does not want to think about you. He considers you are a disgusting old man and whatever sentence you are given will not be enough.

[12] A’s mother has provided a victim impact statement. She talks about the devastation that you have caused in the victim’s life. He has lost his trust in other men, has mental health issues, and has drug and alcohol issues also. She has expressed guilt that she could not protect her son from you.

[13] Mr Page, you have caused significant harm to A and his family.

Sentencing framework

[14] The Sentencing Act 2002 sets out the relevant principles and purposes of sentencing. Those which are relevant in your case are the need to hold you accountable for the harm done to the victim and his family; the deterrence of you and others from similar offending; the denouncement of your behaviour; and the protection of the community.

[15] Although the Crown did not originally seek it, your matter was transferred to the High Court for consideration of preventive detention as an appropriate sentence. I approach the sentencing by first assessing the finite sentence that would otherwise be imposed, and then go on to consider whether preventive detention is appropriate in your case.

Finite sentence

Starting point

[16] I intend to fix a starting point for your offending as a whole. In determining the starting point I take into account the aggravating features of your offending. In your case there are a number.
[17] You offended on multiple occasions over a five year period. Your offending was repetitive and persistent.

[18] Your offending involved full anal sexual intercourse on three separate occasions, and oral sex on two separate occasions. It was offending of the most invasive kind.

[19] It also involved a significant degree of grooming. You befriended A when he was at a particularly vulnerable time in his life. You allowed him to hire DVDs for free; paid for things for him; and encouraged him to watch pornography.

[20] A particularly insidious feature of your offending is that you told A that “this is what boys do” reassuring him that it was all right, and persuading him that the behaviour was normal. You exploited his young age and innocence for your own gratification.

[21] The vulnerability of A is a further aggravating feature. He was 12 years old when the offending first began. He was a troubled youth and in need of a positive male role model. You abused that vulnerability.

[22] The breach of trust involved in your offending is also evident. You were a friend of both A and his mother. His mother placed a great deal of trust in you, considering you to be a positive role model for her son. The breach of that trust has left A with an inability to trust other men.

[23] The age disparity between you and your victim is a significant aggravating factor. You would have been in your mid 50s when the offending began. The victim was 12 years old. The age disparity is around 43 years.

[24] Finally and most significantly is the harm caused by your offending. As the victim impact statement reveals, your offending has caused deep seated psychological and emotional harm. Those are scars that A will have to confront for the rest of his life.

[25] There are no mitigating features of your offending.
[26] In fixing a starting point I have had regard to the cases cited to me by the Crown.³

[27] The aggravating features in R v H which the Court of Appeal considered could have justified a starting point of four years (abuse of trust, significant age gap, full penetrative sex on a number of occasions, and significant adverse effects on the victim) are present in your case also. The grooming aspect of your offending increases your culpability and justifies a higher starting point than four years in my view.

[28] I consider the gravity of your offending to be broadly analogous to R v Butterworth. The age disparity in your case is greater and the offending took place over a longer period of time than in that case. However, the offending in Butterworth involved more frequent incidences of sexual offending, and a greater degree of emotional manipulation. Brewer J considered the offending in Butterworth justified a starting point of at least five years.

[29] The Crown submits that an appropriate starting point is in the region of five and a half years’ imprisonment. Your counsel suggests a starting point of five years’ imprisonment. Taking into account the aggravating features of your offending and the comparable cases, I adopt a starting point of five years’ imprisonment.

Personal aggravating and mitigating factors

[30] The next step is to consider any personal aggravating and mitigating factors.

[31] In terms of aggravating factors, you have three previous convictions for indecent assault on a boy under 12. The Crown submits that an uplift in the vicinity of four to six months is appropriate for those previous convictions. I am mindful that any uplift must not punish you twice. I adopt an uplift of three months for that previous offending. That brings the starting point to five years and three months.

[32] There are no personal mitigating factors which warrant a discount in your case. The health assessor reports suggest you blame the victim for some of your offending

3. R v H (CA94/08) [2008] NZCA 237; R v Johnson [2010] NZCA 168; and R v Butterworth [2013] NZHC 616.

and continue to assert that it was consensual in nature. The pre-sentence report states that you have shown no remorse for your offending. I do not disregard what your counsel has told me today, however. Whilst you have been diagnosed with depression and are currently on medication for that condition, there is no suggestion that this contributed to your offending, nor that imprisonment would be unduly harsh because of it. I decline to grant a discount for personal mitigating factors.

[33] The final matter is that of your guilty plea. You first appeared on 2 November 2015. You vigorously denied the allegations at that time. The guilty plea was entered on 17 June 2016 to amended charges and only after receiving a pre-trial ruling on 1 June 2016 admitting propensity evidence. I agree with the Crown that no more than 15 per cent is available for the guilty plea. This brings your starting point to four years six months.

Minimum period of imprisonment

[34] Section 86 of the Sentencing Act provides for the imposition of a minimum period of imprisonment where the Court is satisfied that the usual non-parole period is insufficient to hold the offender accountable for the harm done to the victim and the community; to denounce the conduct; to deter the offender and others from committing the same or similar offence and/or to protect the community from the offender.⁴

[35] In light of your failure to fully acknowledge the gravity of your offending, and given the vulnerability of the victim, I consider a minimum period of imprisonment is necessary in order to denounce and deter your conduct and to hold you accountable for the harm caused.

[36] The maximum minimum period of imprisonment I may impose is two-thirds of the final sentence. In this case, I impose a minimum period of imprisonment of one year, nine months.

⁴ Sentencing Act 2002, s 86(2).

Finite sentence

[37] The finite sentence I would impose therefore is a sentence of four years, six months imprisonment with a minimum period of imprisonment of one year and nine months.

Preventive detention

[38] I next turn to consider the question of preventive detention.

[39] The imposition of a sentence of a preventive detention requires first an assessment of whether the preconditions in s 87(2) are met. If they are, then the imposition of preventive detention involves the exercise of a discretion which requires the evaluation of the factors set out in s 87(4).⁵

[40] In terms of the preconditions in s 87(2) there is no dispute that the first two are met. You have been convicted of a qualifying sexual offence and are over the age of
18. The only issue is whether I am satisfied that you are likely to commit another qualifying offence if you are released at the sentence expiry date of a sentence able to be imposed.⁶

[41] In practice, the discretionary factors set out in s 87(4) are also relevant to the assessment of this likelihood. I therefore consider each of the factors listed in that subsection. In doing so, I have regard to the pre-sentence report and the reports of two health assessors obtained under s 88 of the Sentencing Act.

Pattern of serious offending disclosed by the offender’s history

[42] The first factor is a pattern of serious offending disclosed by the offender’s history. In this respect you have three convictions for indecent assault on a boy under 12 from 1998. There is some similarity in that the offending was against young boys who did not have a father figure in their lives. There was also a breach of trust, and

⁵ Leonard v R [2013] NZCA 553 at [7]–[8].

⁶ Sentencing Act 2002, s 87(2)(c).

repeated incidences over a period of time. Of some concern is the fact that your current offending has significantly escalated from that prior offending.

[43] Dr Lokesh notes that you have been selective in terms of your victims by identifying vulnerable pre-pubescent and pubescent boys. Dr Sakdalan notes that your offending history indicates sexual predilection towards pubescent aged boys. However, as that report also notes you did manage to sustain a significant period of offence free time in the community (more than 15 years). That moderates the risk of future harm in my view.

Seriousness of the harm caused to the community

[44] The next factor is the seriousness of the harm caused to the community. There can be no doubt that your sexual offending has created significant psychological and emotional harm to A, and his family. That is apparent from the victim impact statement that I have already referred to. Any sort of sexual offending against vulnerable children also causes harm to the broader community. You pose a risk to those most vulnerable in our society.

Information indicating a tendency to commit serious offences in the future

[45] In terms of the third factor, the reports I have identify a number of factors which indicate a tendency to commit serious offences in the future.

[46] The pre-sentence report refers to your complacent attitude towards your offending and your failure to acknowledge the imbalance between you and the victim both in terms of age, maturity and vulnerability. You were assessed as having a high likelihood of reoffending and causing harm to others.

[47] Dr Lokesh reports you as having an inflated sense of entitlement, cognitive distortions and a shifting responsibility towards the circumstances of your offending. Dr Sakdalan also noted that you struggled to take full responsibility for your offending and there was some victim blaming.
[48] The minimisation of your offending and the victim blaming are of real concern. That lack of insight suggests a tendency to commit serious offences in the future.

[49] Both health assessor reports have attempted to identify your risk of potential future sexual offending. Dr Lokesh assessed you in a moderate to high risk category for reoffending and considered you to have a tendency to commit similar offences in the future. Dr Sakdalan assessed you as having a moderate risk of sexual recidivism on release into the community. He considered you would be particularly at risk of reoffending against pubescent boys who you had access to within an unsupervised setting. Dr Sakdalan anticipated that your moderate risk of reoffending could be mitigated by receiving adequate social support and on-going psychological treatment.

The absence of or failure of efforts by the offender to address the cause or causes of the offending

[50] The fourth factor is the absence of or failure of efforts by the offender to address the cause or causes of the offending. In this case, following your earlier convictions you received treatment through SAFE for child sex offending, but you failed to complete that treatment. It is not apparent from the reports why you did not complete that programme although you told Dr Lokesh that there was an issue with funding.

[51] Dr Lokesh was of the view that you minimised the important focus of the SAFE sessions. Dr Sakdalan was more positive. He records you as expressing a willingness to attend a sex offending treatment programme particularly if required by the Court. That is underscored by your counsel here today. Dr Sakdalan states that there have been significant developments in the understanding and treatment of sex offending over the last 20 years. He recommends that you attend a child sex offender treatment programme to reinforce that previous learning and work on areas identified as problematic.

[52] Counsel has referred me to the Department of Corrections website which sets out some information on the Te Piriti Special Treatment Unit for child sex offenders at Auckland Prison. The website notes that results from the study are promising, with
a sexual recidivism rate for Te Piriti graduates of 5.47 per cent compared to the control sample sexual recidivism rate of 22 per cent.

[53] Those statistics provide hope that with the right treatment, people like you will not pose a risk to those most precious members of our society.

[54] It is imperative, Mr Page, that you engage in rehabilitation programmes if you are to mitigate any risk to the community in the future.

Principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

[55] The final factor is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. In this respect the two health assessor reports differ. Dr Sakdalan considers that a custodial sentence of a sufficient term to allow you to undertake intensive specialist rehabilitative treatment designed to address your offence related needs and ameliorate your potential risk is preferable to preventive detention. He considers you are likely to benefit from participation in the child sex offender treatment programmes offered within the prison system.

[56] Dr Lokesh considers that given the persistence of risk across time and despite previous criminal sanctions, an indeterminate sentence would provide the opportunity to reassess risk following treatment and prior to any release. He expressly declined to express an opinion on whether a lengthy determinate sentence was to be preferred.

[57] In assessing whether a determinate sentence is preferable I must also have regard to the availability of an extended supervision order at the expiry of the sentence date. If a determinate sentence combined with an extended supervision order provides adequate protection of the public, then this will tip the balance against preventive detention.⁷

[58] In R v McDonald, the majority of the Court of Appeal replaced a sentence of preventive detention with a determinate sentence of 10 years. In that case the

⁷ R v Parahi [2005] 3 NZLR 356 (CA) at [33]; and R v McDonald [2009] NZCA 248.

availability of an extended supervision order tipped the balance when viewed in combination with the offender’s willingness to participate in a treatment programme; developing insight into the harm associated with offending; and gaps in offending history indicating a capacity to manage risk. That case involved more serious and repetitive offending than in your case.

[59] I consider the considerations in R v McDonald apply to your case also. I consider a lengthy determinate sentence with the possibility of an extended supervision order is preferable to preventive detention in this case.

Indeterminate sentence

[60] Considering all these factors in totality, I consider the preconditions in s 87(2) are met, but I otherwise decline to impose preventive detention in your case.

Sentence

[61] Mr Page, please stand.

[62] On the six charges of sexual conduct with a young person under the age of 16 I sentence you to four years, six months imprisonment with a minimum period of imprisonment of one year, nine months.

[63] Mr Page, you are a registrable offender in terms of s 7 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. I am obliged by s 12 of that Act to advise you that you are a registrable offender under the Act. That means that certain information relating to you and your offending will be kept on a register called the “Child Sex Offender Register”. Further, if and when you are eventually released from custody, you will have to comply with various ongoing reporting obligations. A registrar of this Court will give you written notice of your reporting obligations and the penalties for failing to comply with those obligations.
[64] Mr Page, please stand down.












Edwards J