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TURNER v R [2004] NZCA 246 (4 October 2004)

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TURNER v R [2004] NZCA 246 (4 October 2004)

Last Updated: 2 November 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA113/04

THE QUEEN

v

PHILIP JOHN TURNER

Hearing: 23 September 2004

Coram: McGrath J
Goddard J
Salmon J

Appearances: J H Wiles for Appellant
D J Boldt for Crown

Judgment: 4 October 2004

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1] The appellant pleaded guilty in the District Court at Auckland to 11 charges involving indecencies against five boys who at the time of offending were between 11 and 16 years of age. Two charges were of sexual violation by unlawful sexual connection involving incidents where the appellant had oral sex with the complainants concerned. The initial offending took place in August 2000 with the more serious offending following between June 2002 to February 2003. The appellant was sentenced to six years imprisonment, with a minimum period of imprisonment of three and a half years. He appeals against that sentence.

Facts

[2] The appellant is presently aged 53 years and has no previous convictions. At all relevant times he was living on his own. His main hobby in life has been the construction and flying of remote controlled model aircraft. At the time his offending commenced in mid 2000 he was unemployed and a beneficiary.
[3] In July 2000 he became friendly with the first complainant who at the time was 11 years of age. They met when the appellant was flying one of his remote controlled aircraft. This meeting led to further regular contact between them with the first victim often visiting the appellant at his home. On two separate occasions in August 2000 the appellant drove this complainant out with him to fly his aircraft and, while driving (on the return trip home), rubbed the inside of the boy’s thigh near his groin. On each occasion the complainant asked him to stop, which he did.
[4] The appellant remained friendly with the first complainant. In December 2002 he was seated on a chair in the living room of the appellant’s home fixing one of the model aircraft. On the appellant’s invitation he removed his shorts and underpants, whereupon the accused knelt in front of the complainant and engaged in oral sex. The boy pushed his head away and the appellant responded by gripping the boy’s penis and starting to masturbate him. Eventually the victim was able to push away the accused’s hand. This provoked an angry reaction.
[5] These incidents reflect a pattern of behaviour of the appellant over eight months up to February 2003 in befriending his young victims and abusing them. He met the second complainant when, walking by the appellant’s home, he saw a model aircraft hanging in the window. Following that encounter the second victim also began to visit the appellant regularly. The appellant began to teach him how to drive in June 2002. During the second lesson he fondled this victim’s genitals over the top of his shorts until asked to stop. In late September 2002 the second victim visited him again. While he was sitting on a bed in the appellant’s house the appellant enticed the boy into removing his shorts and boxers, took hold of his penis and started to masturbate him. He was pushed off by the victim. There were further visits in succeeding weeks but no further sexual advances.
[6] The third victim, aged 13 years, met the appellant in April 2002. He subsequently went to the appellant’s home and a friendship developed between them. During some visits the appellant would show him pornographic magazines and videotapes. In June 2002 the appellant persuaded this victim to let him unzip his jeans. He slipped his hand inside them and fondled the boy’s penis. This continued for about two minutes before the victim pulled away from him and left the premises.
[7] The fourth victim was aged 13 years when he went with a friend to see model aircraft at the appellant’s home. A friendship developed, which led to regular visits during which the appellant showed him pornographic magazines and videos. On one visit in July 2002 the appellant agreed to reattach a wheel that had come off the victim’s skateboard. While doing so the appellant masturbated the boy’s penis. Thereafter between mid-August and the end of November 2002 the victim continued to visit the appellant who masturbated his penis on about nine separate occasions. At this point the victim ceased to visit him, this conduct having become too much. This offending resulted in a representative charge of indecent assault.
[8] The fifth victim, aged 11 years, met the appellant in December 2002. He visited the appellant’s home where he spent time playing with his model aircraft. A close friendship developed. On about 12 occasions during December 2002 and February 2003 the victim was indecently assaulted by the appellant rubbing his genitals over his shorts. There were various other similar incidents during this period. During one of them the appellant began to rub this victim’s buttocks at which point the victim and his friend decided to leave. He informed his mother of what had happened. This offending also resulted in a representative charge.
[9] One afternoon during the mid 2003 the first, second and third victims were at the appellant’s home. He permitted them to play with his video camera and they took pictures of the model aircraft. Some then started to read pornographic magazines. The appellant, observing this, sat next to those boys and began to masturbate himself. He then persuaded the second victim to remove his pants and underwear, masturbated his penis and began to perform oral sex on this victim, until he wriggled away. These incidents were filmed by the first victim in circumstances we shall later discuss. The appellant then had the third victim pull his shorts down, pulled down his own pants, and began to masturbate himself. Again this was recorded by another of the boys on video.

Reports before the Court

[10] As a result of one of the boys informing his mother of offending against him a complaint was lodged with the police. Charges were laid and after the police agreed with the appellant’s counsel not to proceed with certain charges the appellant pleaded guilty to all those remaining. Victim Impact Reports from each of the victims and a parent were before the District Court. In each case the victims had suffered emotionally and educationally from the offending which also led to disruption in their behaviour both in their homes and at school. Some have been able to cope with the aftermath of the offending better than others but it is plain that serious problems have been caused to each of the complainants by what the appellant did to them. They remain scarred and are still coping with the effect on their personalities. A forensic psychologist who examined the boys said that the sexual encounters had been very distressing and confusing for all of them and were likely to have powerful effects on their developing sexual and personal identity. The extent to which any of these effects will ultimately be reversible is not yet clear.
[11] Because the Crown initially indicated that it would seek preventive detention the appellant was examined by a Crown appointed psychiatrist as well as the psychologist. Another psychologist was also engaged on his behalf. Their reports indicate that the appellant displays insight into his offending and the effect that it has had on his victims. He expressed his remorse and shame concerning his behaviour. The probation officer confirmed that the appellant did appear motivated to undergo an appropriate rehabilitation programme. The consultant psychiatrist reported that apart from the recent attendance at the SAFE programme the appellant had never previously undertaken any therapy to address his attraction for boys. He did not hold negative attitudes concerning his situation, accepted responsibility for treating his depressive symptoms himself, and had responded constructively to his therapy to date. The psychiatrist believed he would be compliant with rehabilitation attempts in the short term and hopefully in the medium term as well.
[12] The psychologist engaged on behalf of the appellant concluded that unless he received appropriate therapeutic intervention he would be at moderate to high risk of sexual recidivism. However the appellant’s acknowledgement of his need for treatment and apparently genuine remorse and concern over how his aberrant behaviour had impacted on his victims was a positive feature. His reports also augured well for a positive change by him and his rehabilitation. Overall we are satisfied there are grounds for cautious optimism about the appellant’s prospects for rehabilitation.

District Court sentencing

[13] Judge Moore sentenced the appellant on the 11 charges, two of which, as indicated, involved sexual violation and two other representative charges against different complainants. At the outset of his sentencing remarks the Judge commented that the appellant’s guilty pleas had been entered following negotiations between counsel adding:

so from the defence point of view part of the benefits of entering the pleas which have been entered is that the appellant now has only to be sentenced on charges that I have rather than on more extensive charges.

[14] The Judge also pointed out that the appellant had acknowledged, to those who had prepared reports for the Court, that he had offended in a similar manner on occasions other than those with which he had been charged. In those circumstances the Judge said that the Court could not properly deal with the present matters on the basis that the appellant had not earlier been involved in similar offending. Somewhat inconsistently he added that the Court could not and did not seek to impose a sentence that brought into account matters in respect of which no convictions had been entered.
[15] The Judge pointed to the link between the appellant’s offending and his long-standing hobby, involving operation and development of model aircraft. He said that the appellant had skilfully exploited the interest that boys in their formative years had in this activity, taking sexual advantage of them in what was a carefully developed pattern. He said that the offending was serious and had culminated in two incidents of sexual violation by unlawful sexual connection which were particularly grave. He accepted a Crown submission that the appellant had been grooming the boys concerned, using the attraction of the model aircraft to develop an acquaintance with them leading to a friendship, and inviting them to his home. All this was in a context in which the appellant’s true interest in the boys was sexual and totally inappropriate. This reflected an element of premeditation in conjunction with a skilled pattern of introduction of the boys to sexual contact with him. His conduct had features of breach of trust in respect of vulnerable victims. In light of his personal history, his skill and his persistence in offending the Court was not comfortable with the proposition that the risks of future offending by the appellant could be assessed as moderate or less. His personality and sexual problems remained of concern. The Judge emphasised the need to denounce the offending and deter the appellant and others like him in order to protect the community.
[16] The Judge concluded that the appropriate starting point for the sentence was in the range of seven years upwards. Although only two charges of sexual violation were involved, the Judge thought the inference unavoidable that each of the youngsters was being led to activity at that level. He concluded that the starting point for the sentence should be eight years imprisonment with a deduction of two years for the prompt guilty plea. In respect of that deduction he said.

there are some cases where a deduction of more than a quarter is justified for a plea that early but the Court cannot ignore the circumstances that, in pleading as he has done, (the appellant) has also achieved a reduction in the number of charges he faces.

[17] He also accepted the Crown submission that there should be a minimum non parole period as sentencing needs in the case would not adequately be met if parole could be granted after as little as a third of the sentence imposed had been served. He identified three significant aggravating factors being the videotaping of the offending, the involvement of more than one victim at the same place and time and the care and skill that was brought over time to bear in the seduction of them. Those took the matter outside of the ordinary range under s86(3) of the Sentencing Act 2002, warranting a minimum period of imprisonment. His conclusion was that the minimum term should be three and a half years of the six year sentence be imposed.

Issues on appeal

[18] The hearing of the appeal against sentence focussed on three issues. The first is whether the starting point chosen by the Judge of eight years imprisonment was excessive for the offending involved. The second is whether, through errors in his approach, the Judge reached a figure for a discount from his starting point for mitigating factors which was inadequate. The third question is whether the offending met the statutory requirements for a minimum period of imprisonment and in particular whether it was sufficiently serious to warrant that element of punishment.

The appropriate starting point

[19] In deciding on a starting point for his sentence of eight years imprisonment the Judge was influenced by a number of factors. He attached particular significance to the number of victims and the period over which the offending took place. The Judge was clearly also concerned that the appellant had exploited the attraction for boys in their formative years of his hobby of construction and flying model aircraft. He saw this aspect of his behaviour as involving a carefully developed plan and considerable premeditation. The impact on the complainants and their families as disclosed in victim impact reports also emphasised the seriousness of the offending. The Judge was also very concerned at the videotaping of the offending which had involved several young persons at the same place and time.
[20] Mr Wiles for the appellant took issue with the Judge’s conclusions as to the seriousness of the offending. He emphasised that the appellant’s offending included only two incidents of sexual violation, neither of them involving anal penetration. He also pointed out that there was no violence involved in securing the co-operation of the boys. He was critical of the way the Judge treated the videotaping incident, a matter to which we shall return. He also suggested that the Judge’s conclusion that the appellant had groomed his victims was overstated, suggesting that some support for that submission could be derived from the report from the psychiatrists. Overall the offending had been seen as more serious than the circumstances warranted.
[21] Both counsel discussed a number of earlier sentencing decisions of this Court. Of those R v Mahoney CA408/97, 17 February 1998 is most in point. In that case the appellant appealed against an effective sentence of six years imprisonment for offending over a period of three years against two brothers. At the time that appellant was 18 years old. The younger victim was aged eight when the offending against him commenced and the elder between 12 and 13 years of age. The offending, like the present case, included two charges of sexual violation involving oral sex. The appellant had also pleaded guilty at an early stage. The scale of offending might be characterised as similar to that in the present matter. The appellant in Mahoney, however, was much younger than the present appellant and fewer victims were involved. On the other hand the victims in Mahoney were also younger and the period of offending longer.
[22] The other decisions discussed by counsel were R v Tavinor CA313/94, 27 March 1995, R v Walker CA436/97, 19 February 1998 and R v Lowe CA134/01, 26 February 2002. All these were also considered by the Judge. It is unnecessary to traverse them in detail.
[23] We have concluded that the starting point of eight years imprisonment in this case was correctly seen by the Judge as consistent with that adopted in Mahoney and that it should be upheld. In doing so we acknowledge that the sentence in Mahoney was a severe one given that the offending had not progressed to anal violation. The very serious feature of the present case however is the number of victims, and the inevitable impact that the offending has had upon each of them and their families. It was also open to the Judge to conclude in effect that the appellant’s hobby had been deployed as part of a scheme to ingratiate the appellant with potential victims. The fact that his offending progressed over the months from less serious conduct to sexual violation involving oral sex was a further grave aspect.

Mitigating circumstances

[24] In relation to the reduction from the starting point made by the Judge to reflect the plea of guilty, the principal point made by Mr Wiles concerned the reason given by the Judge for not allowing a deduction of more than 25% for the plea as he acknowledged had been allowed in a number of other cases. It is clear that the Judge did take into account that the appellant had secured the Crown’s agreement to drop certain of the charges originally brought against him. That approach, however, was wrong. The Judge should have treated the charges on which the Crown chose to proceed, and to which the appellant pleaded guilty, as reflecting the full culpability of the appellant. The Judge was satisfied, as are we, that the guilty plea was an early one. In those circumstances, while the period to be deducted from the starting point on that account was within the Judge’s discretion, he should not have been influenced to the appellant’s disadvantage by the agreement reached on the charges concerned.
[25] In those circumstances we have reconsidered the appropriate period to be deducted for the guilty plea and previous good record of the appellant and have decided that two and a half years should be taken off the seven years starting point, making the finite term of imprisonment that is to be imposed one of five and a half years.

Minimum term of imprisonment

[26] Under s86 of the Sentencing Act 2002 when sentencing judges consider whether to impose minimum terms of imprisonment the central question is whether in the circumstances the offender’s culpability is increased by matters of particular seriousness in relation to the offending. Minimum non parole periods are imposed for offending that is notable for its aggravating features, to the extent that even if the Parole Board is satisfied on the question of future risk to community safety, it would be contrary to the public interest for an offender to be released after serving only the statutory minimum one third of the sentence before being eligible for parole. In this case relevant factors correctly identified by the Judge were the number of victims, and the intensity and seriousness of the offending as reflected in the victim impact reports which were before him. The overall elements of premeditation and seduction were also aggravating features. The Judge rightly said that when offending against young people develops a serial character that may not adequately be met by a situation in which parole could be granted after as little as one third of the sentence imposed. Other aggravating factors identified were the manner in which the boys had been seduced, involving a measure of care and skill as the Judge saw it. The final aggravating factor was the involvement of videotaping of more than one young person at the same place and the same time.
[27] We are satisfied that the Judge was correct in identifying this case as one which fitted within the statutory requirements of sufficient seriousness to require a minimum period of imprisonment before the appellant becomes eligible for parole. In general we agree with the factors identified by the Judge. The most serious feature of the offending is the serial element and the number of victims involved. However in one respect we do not agree with the Judge. We do not accept that on the agreed statement of facts he was properly able to treat the videotaping of the incident involving several boys as an act taken on the initiative of the appellant or for which he was responsible. The statement of facts in respect of the second victim makes it clear that the videotaping was done by one of the boys (in fact by the first victim). The Judge however attributes responsibility for it to the appellant describing it as a "particularly concerning matter in respect of some of the final offending" and later as a "significant aggravating factor" for the purposes of his decision on the minimum period of imprisonment.
[28] Mr Wiles submitted that the underlying facts did not reflect the inferences drawn by the Judge as to the appellant’s responsibility for videotaping of this incident. We agreed to go beyond the agreed statement of facts and to look at the statement of the victim from which it was drawn. Having considered this material it is plain that the appellant gave consent to the use of his video camera prior to the boys starting to look at pornographic magazines and his engaging in subsequent sexual conduct. The appellant in fact turned the camera off when that stage was reached. One complainant then turned it back on because he thought it would be good to tape the appellant offending. He put the camera beside the bed and said that he was uncertain whether the appellant knew the camera was on. The appellant retained the video for a period but later destroyed it to avoid it being found. In all the circumstances, however, we are satisfied there was no sound basis for attributing to the appellant the degree of responsibility for the videotaping of the indecencies that the Judge did.
[29] In those circumstances we have considered afresh the length of the minimum parole period imposed by the Judge and concluded that the appropriate term is one of two years nine months out of the total finite sentence we are imposing of five and a half years imprisonment.
[30] In conclusion we reiterate that this is a case in which professional opinion indicates there are better prospects than usual for the rehabilitation of this offender. Whether he takes advantage of the opportunities to rehabilitate that are offered to him in prison in a way and with the level of success that warrants his release on parole after the minimum term will be a matter for the Parole Board.
[31] For these reasons the appeal is allowed and the sentences imposed by the District Court Judge are set aside. Instead the appellant is sentenced to an effective term of five and a half years imprisonment with a minimum non parole period of two years nine months imprisonment. The finite sentence is given effect to by imposing that term of imprisonment on each of the sexual violation charges the terms to be served concurrently. On those of the other charges which carry the maximum term of ten years imprisonment the sentence will be one of four years. On the charge where the maximum term is seven years imprisonment the sentence will be three and a half years. On that charge where the maximum term is two years imprisonment there will be a sentence of one years imprisonment. All those sentences will be concurrent with those imposed for the sexual violation offending.

Solicitors:
Public Defence Service, Auckland for Appellant
Crown Law Office, Wellington

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[2]	The appellant is presently aged 53 years and has no previous convictions. At all relevant times he was living on his own. His main hobby in life has been the construction and flying of remote controlled model aircraft. At the time his offending commenced in mid 2000 he was unemployed and a beneficiary.
[3]	In July 2000 he became friendly with the first complainant who at the time was 11 years of age. They met when the appellant was flying one of his remote controlled aircraft. This meeting led to further regular contact between them with the first victim often visiting the appellant at his home. On two separate occasions in August 2000 the appellant drove this complainant out with him to fly his aircraft and, while driving (on the return trip home), rubbed the inside of the boy’s thigh near his groin. On each occasion the complainant asked him to stop, which he did.
[4]	The appellant remained friendly with the first complainant. In December 2002 he was seated on a chair in the living room of the appellant’s home fixing one of the model aircraft. On the appellant’s invitation he removed his shorts and underpants, whereupon the accused knelt in front of the complainant and engaged in oral sex. The boy pushed his head away and the appellant responded by gripping the boy’s penis and starting to masturbate him. Eventually the victim was able to push away the accused’s hand. This provoked an angry reaction.
[5]	These incidents reflect a pattern of behaviour of the appellant over eight months up to February 2003 in befriending his young victims and abusing them. He met the second complainant when, walking by the appellant’s home, he saw a model aircraft hanging in the window. Following that encounter the second victim also began to visit the appellant regularly. The appellant began to teach him how to drive in June 2002. During the second lesson he fondled this victim’s genitals over the top of his shorts until asked to stop. In late September 2002 the second victim visited him again. While he was sitting on a bed in the appellant’s house the appellant enticed the boy into removing his shorts and boxers, took hold of his penis and started to masturbate him. He was pushed off by the victim. There were further visits in succeeding weeks but no further sexual advances.
[6]	The third victim, aged 13 years, met the appellant in April 2002. He subsequently went to the appellant’s home and a friendship developed between them. During some visits the appellant would show him pornographic magazines and videotapes. In June 2002 the appellant persuaded this victim to let him unzip his jeans. He slipped his hand inside them and fondled the boy’s penis. This continued for about two minutes before the victim pulled away from him and left the premises.
[7]	The fourth victim was aged 13 years when he went with a friend to see model aircraft at the appellant’s home. A friendship developed, which led to regular visits during which the appellant showed him pornographic magazines and videos. On one visit in July 2002 the appellant agreed to reattach a wheel that had come off the victim’s skateboard. While doing so the appellant masturbated the boy’s penis. Thereafter between mid-August and the end of November 2002 the victim continued to visit the appellant who masturbated his penis on about nine separate occasions. At this point the victim ceased to visit him, this conduct having become too much. This offending resulted in a representative charge of indecent assault.
[8]	The fifth victim, aged 11 years, met the appellant in December 2002. He visited the appellant’s home where he spent time playing with his model aircraft. A close friendship developed. On about 12 occasions during December 2002 and February 2003 the victim was indecently assaulted by the appellant rubbing his genitals over his shorts. There were various other similar incidents during this period. During one of them the appellant began to rub this victim’s buttocks at which point the victim and his friend decided to leave. He informed his mother of what had happened. This offending also resulted in a representative charge.
[9]	One afternoon during the mid 2003 the first, second and third victims were at the appellant’s home. He permitted them to play with his video camera and they took pictures of the model aircraft. Some then started to read pornographic magazines. The appellant, observing this, sat next to those boys and began to masturbate himself. He then persuaded the second victim to remove his pants and underwear, masturbated his penis and began to perform oral sex on this victim, until he wriggled away. These incidents were filmed by the first victim in circumstances we shall later discuss. The appellant then had the third victim pull his shorts down, pulled down his own pants, and began to masturbate himself. Again this was recorded by another of the boys on video.

[10]	As a result of one of the boys informing his mother of offending against him a complaint was lodged with the police. Charges were laid and after the police agreed with the appellant’s counsel not to proceed with certain charges the appellant pleaded guilty to all those remaining. Victim Impact Reports from each of the victims and a parent were before the District Court. In each case the victims had suffered emotionally and educationally from the offending which also led to disruption in their behaviour both in their homes and at school. Some have been able to cope with the aftermath of the offending better than others but it is plain that serious problems have been caused to each of the complainants by what the appellant did to them. They remain scarred and are still coping with the effect on their personalities. A forensic psychologist who examined the boys said that the sexual encounters had been very distressing and confusing for all of them and were likely to have powerful effects on their developing sexual and personal identity. The extent to which any of these effects will ultimately be reversible is not yet clear.
[11]	Because the Crown initially indicated that it would seek preventive detention the appellant was examined by a Crown appointed psychiatrist as well as the psychologist. Another psychologist was also engaged on his behalf. Their reports indicate that the appellant displays insight into his offending and the effect that it has had on his victims. He expressed his remorse and shame concerning his behaviour. The probation officer confirmed that the appellant did appear motivated to undergo an appropriate rehabilitation programme. The consultant psychiatrist reported that apart from the recent attendance at the SAFE programme the appellant had never previously undertaken any therapy to address his attraction for boys. He did not hold negative attitudes concerning his situation, accepted responsibility for treating his depressive symptoms himself, and had responded constructively to his therapy to date. The psychiatrist believed he would be compliant with rehabilitation attempts in the short term and hopefully in the medium term as well.
[12]	The psychologist engaged on behalf of the appellant concluded that unless he received appropriate therapeutic intervention he would be at moderate to high risk of sexual recidivism. However the appellant’s acknowledgement of his need for treatment and apparently genuine remorse and concern over how his aberrant behaviour had impacted on his victims was a positive feature. His reports also augured well for a positive change by him and his rehabilitation. Overall we are satisfied there are grounds for cautious optimism about the appellant’s prospects for rehabilitation.

[14]	The Judge also pointed out that the appellant had acknowledged, to those who had prepared reports for the Court, that he had offended in a similar manner on occasions other than those with which he had been charged. In those circumstances the Judge said that the Court could not properly deal with the present matters on the basis that the appellant had not earlier been involved in similar offending. Somewhat inconsistently he added that the Court could not and did not seek to impose a sentence that brought into account matters in respect of which no convictions had been entered.
[15]	The Judge pointed to the link between the appellant’s offending and his long-standing hobby, involving operation and development of model aircraft. He said that the appellant had skilfully exploited the interest that boys in their formative years had in this activity, taking sexual advantage of them in what was a carefully developed pattern. He said that the offending was serious and had culminated in two incidents of sexual violation by unlawful sexual connection which were particularly grave. He accepted a Crown submission that the appellant had been grooming the boys concerned, using the attraction of the model aircraft to develop an acquaintance with them leading to a friendship, and inviting them to his home. All this was in a context in which the appellant’s true interest in the boys was sexual and totally inappropriate. This reflected an element of premeditation in conjunction with a skilled pattern of introduction of the boys to sexual contact with him. His conduct had features of breach of trust in respect of vulnerable victims. In light of his personal history, his skill and his persistence in offending the Court was not comfortable with the proposition that the risks of future offending by the appellant could be assessed as moderate or less. His personality and sexual problems remained of concern. The Judge emphasised the need to denounce the offending and deter the appellant and others like him in order to protect the community.
[16]	The Judge concluded that the appropriate starting point for the sentence was in the range of seven years upwards. Although only two charges of sexual violation were involved, the Judge thought the inference unavoidable that each of the youngsters was being led to activity at that level. He concluded that the starting point for the sentence should be eight years imprisonment with a deduction of two years for the prompt guilty plea. In respect of that deduction he said.

[19]	In deciding on a starting point for his sentence of eight years imprisonment the Judge was influenced by a number of factors. He attached particular significance to the number of victims and the period over which the offending took place. The Judge was clearly also concerned that the appellant had exploited the attraction for boys in their formative years of his hobby of construction and flying model aircraft. He saw this aspect of his behaviour as involving a carefully developed plan and considerable premeditation. The impact on the complainants and their families as disclosed in victim impact reports also emphasised the seriousness of the offending. The Judge was also very concerned at the videotaping of the offending which had involved several young persons at the same place and time.
[20]	Mr Wiles for the appellant took issue with the Judge’s conclusions as to the seriousness of the offending. He emphasised that the appellant’s offending included only two incidents of sexual violation, neither of them involving anal penetration. He also pointed out that there was no violence involved in securing the co-operation of the boys. He was critical of the way the Judge treated the videotaping incident, a matter to which we shall return. He also suggested that the Judge’s conclusion that the appellant had groomed his victims was overstated, suggesting that some support for that submission could be derived from the report from the psychiatrists. Overall the offending had been seen as more serious than the circumstances warranted.
[21]	Both counsel discussed a number of earlier sentencing decisions of this Court. Of those R v Mahoney CA408/97, 17 February 1998 is most in point. In that case the appellant appealed against an effective sentence of six years imprisonment for offending over a period of three years against two brothers. At the time that appellant was 18 years old. The younger victim was aged eight when the offending against him commenced and the elder between 12 and 13 years of age. The offending, like the present case, included two charges of sexual violation involving oral sex. The appellant had also pleaded guilty at an early stage. The scale of offending might be characterised as similar to that in the present matter. The appellant in Mahoney, however, was much younger than the present appellant and fewer victims were involved. On the other hand the victims in Mahoney were also younger and the period of offending longer.
[22]	The other decisions discussed by counsel were R v Tavinor CA313/94, 27 March 1995, R v Walker CA436/97, 19 February 1998 and R v Lowe CA134/01, 26 February 2002. All these were also considered by the Judge. It is unnecessary to traverse them in detail.
[23]	We have concluded that the starting point of eight years imprisonment in this case was correctly seen by the Judge as consistent with that adopted in Mahoney and that it should be upheld. In doing so we acknowledge that the sentence in Mahoney was a severe one given that the offending had not progressed to anal violation. The very serious feature of the present case however is the number of victims, and the inevitable impact that the offending has had upon each of them and their families. It was also open to the Judge to conclude in effect that the appellant’s hobby had been deployed as part of a scheme to ingratiate the appellant with potential victims. The fact that his offending progressed over the months from less serious conduct to sexual violation involving oral sex was a further grave aspect.

[26]	Under s86 of the Sentencing Act 2002 when sentencing judges consider whether to impose minimum terms of imprisonment the central question is whether in the circumstances the offender’s culpability is increased by matters of particular seriousness in relation to the offending. Minimum non parole periods are imposed for offending that is notable for its aggravating features, to the extent that even if the Parole Board is satisfied on the question of future risk to community safety, it would be contrary to the public interest for an offender to be released after serving only the statutory minimum one third of the sentence before being eligible for parole. In this case relevant factors correctly identified by the Judge were the number of victims, and the intensity and seriousness of the offending as reflected in the victim impact reports which were before him. The overall elements of premeditation and seduction were also aggravating features. The Judge rightly said that when offending against young people develops a serial character that may not adequately be met by a situation in which parole could be granted after as little as one third of the sentence imposed. Other aggravating factors identified were the manner in which the boys had been seduced, involving a measure of care and skill as the Judge saw it. The final aggravating factor was the involvement of videotaping of more than one young person at the same place and the same time.
[27]	We are satisfied that the Judge was correct in identifying this case as one which fitted within the statutory requirements of sufficient seriousness to require a minimum period of imprisonment before the appellant becomes eligible for parole. In general we agree with the factors identified by the Judge. The most serious feature of the offending is the serial element and the number of victims involved. However in one respect we do not agree with the Judge. We do not accept that on the agreed statement of facts he was properly able to treat the videotaping of the incident involving several boys as an act taken on the initiative of the appellant or for which he was responsible. The statement of facts in respect of the second victim makes it clear that the videotaping was done by one of the boys (in fact by the first victim). The Judge however attributes responsibility for it to the appellant describing it as a "particularly concerning matter in respect of some of the final offending" and later as a "significant aggravating factor" for the purposes of his decision on the minimum period of imprisonment.
[28]	Mr Wiles submitted that the underlying facts did not reflect the inferences drawn by the Judge as to the appellant’s responsibility for videotaping of this incident. We agreed to go beyond the agreed statement of facts and to look at the statement of the victim from which it was drawn. Having considered this material it is plain that the appellant gave consent to the use of his video camera prior to the boys starting to look at pornographic magazines and his engaging in subsequent sexual conduct. The appellant in fact turned the camera off when that stage was reached. One complainant then turned it back on because he thought it would be good to tape the appellant offending. He put the camera beside the bed and said that he was uncertain whether the appellant knew the camera was on. The appellant retained the video for a period but later destroyed it to avoid it being found. In all the circumstances, however, we are satisfied there was no sound basis for attributing to the appellant the degree of responsibility for the videotaping of the indecencies that the Judge did.
[29]	In those circumstances we have considered afresh the length of the minimum parole period imposed by the Judge and concluded that the appropriate term is one of two years nine months out of the total finite sentence we are imposing of five and a half years imprisonment.
[30]	In conclusion we reiterate that this is a case in which professional opinion indicates there are better prospects than usual for the rehabilitation of this offender. Whether he takes advantage of the opportunities to rehabilitate that are offered to him in prison in a way and with the level of success that warrants his release on parole after the minimum term will be a matter for the Parole Board.
[31]	For these reasons the appeal is allowed and the sentences imposed by the District Court Judge are set aside. Instead the appellant is sentenced to an effective term of five and a half years imprisonment with a minimum non parole period of two years nine months imprisonment. The finite sentence is given effect to by imposing that term of imprisonment on each of the sexual violation charges the terms to be served concurrently. On those of the other charges which carry the maximum term of ten years imprisonment the sentence will be one of four years. On the charge where the maximum term is seven years imprisonment the sentence will be three and a half years. On that charge where the maximum term is two years imprisonment there will be a sentence of one years imprisonment. All those sentences will be concurrent with those imposed for the sexual violation offending.