R V WALKER HC PMN CRI-2006-031-1677 [2009] NZHC 368 (30 March 2009)

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


IN THE HIGH COURT
OF NEW ZEALAND
PALMERSTON NORTH REGISTRY
                                                               CRI-2006-031-1677



   
                                THE QUEEN



                                           v



                              IAN JAMES
WALKER



Hearing:       30 March 2009

Appearances: E McCaughan and S Johnston for the Crown
             C Stevenson for the prisoner

Judgment:      30 March 2009


                    SENTENCING NOTES OF CLIFFORD J


[1]    Mr Walker, you are a 64 year old man
and you appear for sentence having
pleaded guilty to four charges of sexual connection with a female between the ages
of 12 and 16
years. These are charges which now carry a maximum penalty of ten
years' imprisonment. You are also to be sentenced having pleaded
guilty to one
charge of doing an indecent act on a female aged between 12 and 16 years, a charge
which carries a maximum penalty
of seven years' imprisonment.


[2]    As you are aware, the District Court declined jurisdiction so that you could
be assessed for
a sentence of preventive detention. This morning, and as you have
heard, the Crown has formally said that it does not now seek preventive
detention. I
have also indicated that prior to this morning's hearing I had by a very narrow
margin reached the tentative view that,
subject to what I heard this morning, I was

R V WALKER HC PMN CRI-2006-031-1677 30 March 2009

not going to sentence you to preventive
detention.        Significant factors in that
decision were the availability of extended supervision orders, and your willingness
to
undergo treatment. But at the same time, and as you will hear in the sentencing
remarks I am going to make to you, the factors
which meant that it was only by a
narrow margin I was not going to impose preventive detention reflect the seriousness
of your offending,
the very poor attitude you have to that offending as shown in the
background materials and the clear need in this case to protect
the community.


The facts


[3]    As to the factual background in this matter. You met your victim in 2005.
At that time, you were
living with your daughter and your grandchildren. Your
victim was a friend of your grandchildren. She had just turned 13 years old
at the
time, and her age was known to you. You knew her parents.


[4]    Your first contact occurred when she answered a text message
you had sent
to one of your granddaughters. In answering that text message she identified herself.
As a result of that message, a
series of mobile phone communications took place
which resulted in you asking her whether she would agree to be paid in return for
what she described as "kisses and cuddles". Some form of relationship developed.


[5]    Although you disagree with some elements
of the statement of facts to which
you pleaded guilty, you nevertheless acknowledge having sexual connection with,
and performing
indecent acts on, your victim approximately once a week between
October 2005 and April 2006.


[6]    The four charges of sexual
connection you face relate to specific incidents
when you touched your victim's genitalia, made her perform oral sex on you, and,
on
two separate occasions, licked her vagina. The fifth charge, of indecent assault, is a
representative charge, relating to a number
of occasions on which you licked and
sucked her breasts.


[7]    Your offending occurred at various locations. The specific charges
you face
relate to occasions when you drove your victim, sometimes with her younger sister,

sometimes with her friends, to public
reserves around Levin and Foxton. On another
occasion the offending occurred at your home in Levin.


[8]    You say that your victim
was sometimes under the influence of alcohol
and/or solvents at the time of your offending. The reports I have read show that your
own use of alcohol as well contributed to your offending.


[9]    You would pay your victim for these encounters in cash, the payments
varying from $10 to $50 and
totalling up to $150 in some weeks.


[10]   Your victim reports that during the offending you would tell her you loved
her, and
wanted to make love to her when she turned 16. You deny this. The
probation officer reports, however, you saying that your victim
trusted you, and told
you her problems, and that you would try and give her advice.


The sentencing process


[11]   In determining
that finite sentence I will first set what is called the starting
point, that is a sentence which reflects the seriousness of what
you did. I will then
adjust that starting point to take account of factors personal to you that might call for
a longer or a shorter
sentence than the period of time first identified.


[12]   In doing so, I am to have regard to relevant provisions of the Sentencing
Act
2002. Most of the statutory purposes of sentencing are relevant here and I will read
them out to you because they are important.
The purpose of your sentencing is:


       a)      to hold you accountable, and to promote in you a sense of
               responsibility,
for the awful offending that you engaged in;


       b)      to denounce your conduct;


       c)      to deter you and others
from similar offending; and

        d)      to provide for the needs of your victim and, importantly, to protect the
         
      community.


Background


[13]    In terms of the background materials I have been provided with, the
Department of Corrections'
report records you reporting as having had a good
upbringing, although your father was regularly violent towards your mother and
was
a binge drinker. You do not use drugs but have consumed alcohol heavily for most
of your life.


[14]    You have two previous
marriages. In 1984, two sons of your first marriage
committed suicide, an event that has affected you greatly.


[15]    You report
being a mechanical engineer by trade, and have maintained full
employment through most of your working life.


[16]    You were convicted
in 1999 on two charges of sexual violation by unlawful
sexual connection and one charge of indecent assault. Your victim was on that
occasion also known to you. You have, as I understand it, continued to deny
responsibility for that earlier offending, maintaining
that your victim was consenting,
that she was nearly 17 and worked as a prostitute. You were sentenced to six and a
half years imprisonment
for that offending, and were released in January 2004.


[17]    You did not take part in a sex offender's programme when in prison
because
of the view you took as to the nature of that offending.


[18]    After your imprisonment came to an end you breached parole
conditions of
that sentence by having unsupervised contact with your step-grandchildren.


[19]    The offending to which you have
now pleaded guilty began only some three
months after the parole period of that sentence expired.

[20]   Whilst on remand for this
offending you have had open heart surgery to
address significant health issues, and Mr Stevenson has indicated that your recovery
is proceeding well.


[21]   In addition to the 1999 offending, you have a range of previous convictions,
including convictions in
1973 and 1974, I admit a long time ago now, for assault on
a female and a breach of a non-molestation order.


[22]   Of relevance
to me today are that the report shows:


       a)      that you have very little insight into your offending;


       b)      that
you appear to slip in and out of a willingness to take
               responsibility for your offending depending on the type of
question
               you are asked;


       c)      that you are assessed as being at extremely high risk of re-offending
  
            should you be released into the community; and


       d)      that you show little regard for your victim.


[23] 
 The two specialist health assessors' reports, specifically prepared for the
purposes of preventive detention, confirm the assessment contained in the probation
report.
In particular, I note the psychologist assessed your risk for re-offending as in
the moderate to high range.


Victim Impact Statement


[24]   Your victim has provided a victim impact statement. In it she speaks of the
emotional harm she has suffered as a result
of your offending. Before she knew you
were in prison, she had been scared to walk by herself as she was concerned she
might encounter
you. She had nightmares that lasted for six months and she now
only goes out with a member of her family because she only feels safe
with her own
family. Clearly your offending has had a considerable impact on her.

Discussion


Finite sentence


[25]   On the
question of a finite sentence, the Crown submission is that a starting
point in the region of four and a half to five year's imprisonment
is appropriate. Mr
McCaughan has referred me to the cases of R v Henderson  [2007] NZCA 524 and R
v Harvey HC INV CRI-2007-425-5 20 April 2007. I note he has acknowledged that
the offending there may have been slightly more
serious involving, in Henderson,
sexual intercourse and elements of compulsion, and in Harvey more significant
sexual activity, and
also a significant breach of trust, the offender being a teacher at
the victim's school.


[26]   Mr Stevenson, on your behalf, acknowledges
the seriousness of your
offending and, I think fairly put taken in the round and having regard to the fact that
I was first considering
this sentence in the context of possible preventive detention,
suggests that a starting point of four years may be appropriate before
uplift for your
prior offending.


[27]   In considering an appropriate starting point, I note the following matters:


       a)
     Your victim here was just 13 years old.


       b)      There was a clear grooming technique involved, involving the
     
         payment of money and the expression of affection and love or, if not
               that, even by your own admission, the
expression of a sense of care
               and responsibility. Both of those features of your offending were an
              
exploitation of the vulnerability of your victim.


       c)      Your offending extended over a period of six months, and during
that
               time occurred regularly.


       d)      Although you stopped short of sexual intercourse and penetration,

              your activity included making your victim perform oral sex on you on
               one occasion and was, in and of
itself, serious.

[28]   In my judgment, you have cynically preyed on and exploited a young woman
who, although perhaps physically
mature, was of considerable psychological and
emotional immaturity. As her victim impact statement shows, your offending has
had
a very serious impact on her indeed.


[29]   Mr Walker, I think your offending showed an appalling attitude to your
young victim.


[30]   At the same time, I acknowledge that your offending was not, in my
judgment, as serious as that in Henderson or Harvey.


[31]   I have therefore considered a number of other cases involving sexual
connection and indecent acts. As I have said to counsel,
in my view it is difficult to
reconcile sentences in this area, both before and after the recent amendments to
maximum terms. I refer
to the sentences in Marino v Police HC GIS CRI-2008-416-
4 22 February 2008, Makaia v Police HC AK CRI-2005-404-145 8 July 2005
Baragwanath
J and Campbell v Police HC DUN CRI-2007-412-5 19 April 2007. I
also not that whilst intercourse generally attracts higher sentences,
there are cases,
such as Comer v Police HC WHA CRI-2005-488-61 9 November 2005, involving
intercourse where a considerably lower
sentence was imposed.


[32]   I have, therefore, considered your offending in terms of the sentencing
principles set out in ss 8(c)
and (d) of the Sentencing Act. Those principles mean
that in sentencing you I am to have regard to the maximum terms imposed for
offending of this nature, and to fix a sentence that appropriately responds to the
criminality of what you did in terms of those
maximum terms of ten and seven years.
In other words, I am trying to decide where to put it on the scale of seriousness.


[33] 
 In that context, I think sentencing under s 134 should respond, in terms of
identifying a starting point, amongst other things to:


       a)       the nature of the sexual conduct engaged in, recognising the section
                covers acts from full intercourse
to indecencies;

       b)      the age of the victim;


       c)      the degree of exploitation of the victim by the offender,
accepting that
               offending under s 134 does not involve proof of absence of consent;
               and


       d)
     the impact on the victim.


[34]   I comment as follows:


       a)      The sexual conduct engaged in here, particularly as
regards oral sex,
               was significant but not as significant clearly as full intercourse. In my
               view this makes your offending of a level of medium
seriousness.


       b)      The victim here is only 13 years old, in contrast, for example, to a
               victim who may
have been closer to 16, and therefore closer to the
               point at which consensual sexual conduct becomes legal. This makes
               your offending more serious.


       c)      I think there was a considerable degree of exploitation, particularly
as
               reflected by the payment of money and the exploitation of some type
               of trusting relationship that
you encouraged. This also makes your
               offending more serious.


       d)      Clearly, your conduct has had a considerable
impact on your victim.


[35]   Having regard to those factors alone, and considering the applicable
maximum sentences of ten and
seven years, I would accept the Crown's submission
that a starting point in the range of four and a half to five years was appropriate.
When I consider relevant sentencing trends, however, I find it somewhat difficult to
arrive at a starting point higher than one in
the vicinity of three to three and a half
years. I acknowledge at this point, however, that some increase in that starting point
may be appropriate in the context of this sentencing, recognising that a longer finite
period of imprisonment is generally considered
preferable to preventive detention

and that, although the Crown does not formally seek preventive detention, it is only
by a narrow
margin that I would not impose it myself.


[36]     I also note Mr Stevenson's submissions on the point.


[37]     With reference
to those considerations, I fix a starting point of four years
imprisonment.


[38]     I turn now to factors personal to you.


[39]
    There is the aggravating factor of your previous convictions. Clearly, the
convictions for sexual violation are a considerable
aggravating factor made more so
in this case by the closeness of this offending to the expiry of your sentence for that
previous
offending. On that basis I consider that an uplift of one year is called for.


[40]     Therefore, your sentence, before I consider
mitigating factors, would be five
years.


[41]     I accept there is a guilty plea. As I indicated, it was not entered at the first
opportunity. I also note there are some issues of health, but in terms of your recent
operation it is not clear to me how much account
I should take of those, although I
am aware of them.         Having regard to those factors, I allow a discount of
approximately
15%, or nine months.


[42]     On that basis, I consider that the appropriate finite term of imprisonment for
this offending is
four years and three months.


[43]     Turning now to a minimum period of non-parole, I note again:


         a)     the type of
offending you engaged in;


         b)     the proximity of that offending to the expiry of your sentence for your
            
   previous offending;

        c)       your attitude to this offending including your attitude to your victims;
             
   and


        d)       your attitude to the question of your own responsibility,


all indicating a need for the protection of
the community.


[44]    I therefore will, in terms of my ability to impose a minim term of non-parole,
impose a period of two thirds
of that sentence.


[45]    Please be aware, Mr Walker, that if you re-offend in a similar manner again
in the future you will almost
certainly be sentenced to preventive detention. This is,
therefore, a final warning to you.


[46]    The need for treatment cannot
be over-emphasised, nor can the need for you
to change your attitude to young women who may appear physically mature, but are
emotionally
and psychologically vulnerable to older men like you who prey on them.


[47]    You may stand down.




                       
                                                             "Clifford J"




Solicitors: Crown Solicitor, Palmerston North, for the prisoner ([e-mail])
   
        C Stevenson, Barrister, Lower Hutt, for the prisoner ([e-mail])