R v Richards HC Auckland CRI-2010-004-6987 [2011] NZHC 2080 (15 December 2011)

Last Updated: 21 February 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-004-6987}

THE QUEEN

v

GRANT WILLIAM RICHARDS

Hearing: 15 December 2011

Appearances: J L S Shaw for Crown

P H H Tomlinson for Prisoner

Judgment: 15 December 2011

_{SENTENCING NOTES OF PETERS J}

Solicitors: Meredith Connell, Crown Solicitor, P O Box 2213, Shortland Street, Auckland 1140 email: [e-mail]

Peter Tomlinson, P O Box 194, Shortland Street, Auckland 1140 email: [e-mail]

R V RICHARDS HC AK CRI-2010-004-6987 15 December 2011

Introduction

[1] Mr Richards, you appear for sentence having pleaded guilty to two charges of indecent assault of a girl between the ages of 12 and 16, contrary to s 134(2)(a) of the Crimes Act 1961, as it was at the time of your offending. Each charge carries a maximum penalty of seven years’ imprisonment.

Facts

[2] I turn now to the facts of your offending which I take from the summary of facts. You met the victim when you and your wife boarded at the house in which she lived, with her mother, in 1978. The victim was 12 years old and attending intermediate school. You were about 26 years old. After a period you and your wife moved out of the house but stayed in contact with the victim and her mother.

[3] Some time around November 1978, the victim went to the house where you and your wife were living in St Mary’s Bay. While talking to the victim you told her that you were disappointed she had slept with another man and not you. You suggested that she now should sleep with you. That led to the first assault, described in the summary as follows:

The Accused suggests to the Victim that she should sleep with him now that [V] is gone. The Accused unzips his trousers and starts masturbating his penis in front of the Victim.

The Accused asks the Victim to suck his penis.

The Accused pulls the Victim’s head down onto his penis and persistently pushes her head down hard onto his penis causing the Victim to choke and retch.

The Accused laughs and occasionally [lets] the Victim up to breathe.

The Accused reaches over the Victim and fondles her inner thigh and genitals.

[4] Late in November 1978, the victim and her mother visited the address at which you and your wife were living. The second assault took place, described in the summary as follows:

Sometime in or around November 1978, the Victim and her mother were visiting the Accused and his wife at their [address]. They were all sitting around the porch table. The Accused was sitting next to the Victim. The Accused subtly put his hand under the table and up the Victim’s skirt stroking her thighs. The Accused also touched the complainant on or around her genitalia. The Victim froze and was concerned at the Accused’s wife or her mother noticing what was happening. After a while the Victim’s mother leaves and the [Victim] stays behind with the Accused and his wife.

[5] What stands out from the summary is that there are two separate incidents of offending, both opportunistic on your part. The age of the victim made her vulnerable. Your age meant that you should have known better. Not only was the victim vulnerable because of her age but also because it does not appear that, at the time at least, her mother was providing her with stability, direction and protection. That increased the victim’s vulnerability and you took advantage of the situation.

Personal circumstances

[6] Some 30 odd years has elapsed since the offending. You are now 59 and in a long standing relationship with your partner. In the 30 years or so since, you have had a variety of different types of work. The pre-sentence report states that you have not held fulltime work since the 1990s and that more recently you have been studying and building a house.

[7] In that intervening 30 or so years, there has been no further offending on your part of any kind. I have the read the references that have been provided, including that from your partner Ms Radovic, Dr Hudson, Mr McDonald, Mr McColl and Mr Wilson. All of these speak highly of you as a generous and kind friend with a gentle nature.

Approach to sentencing

[8] There is a three step process to be followed in sentencing. The first step is to establish a “starting point” by reference to the features of the actual offending itself. In setting that starting point I take into account the aggravating and mitigating features of the offending.

[9] The second is to adjust the starting point if necessary on account of any matters – aggravating and mitigating – that relate to you personally. The final step is to take into account your guilty plea.

[10] In fixing the starting point I must have regard to the purposes of sentencing in a case such as this and the principles that I need to bear in mind throughout.

[11] The purposes of sentencing that are relevant in this case are the need to hold you accountable for the harm done to your victim, to promote in you a sense of responsibility for causing that harm and to denounce the conduct in which you were involved. In similar cases, deterrence and protection might also be relevant, although in your particular case given the lack of any subsequent offending that is less critical.

[12] In so far as concerns the principles of sentencing, I must take into account the gravity of the offending, the general desirability of achieving consistency with appropriate sentencing levels so that you are treated the same as other offenders in respect of similar offences and I must impose the least restrictive outcome that is appropriate in the circumstances.

Victim impact statement

[13] Before proceeding further, I should mention the victim impact statement which the Crown has made available today and on which I have heard from your counsel.

[14] Many years have elapsed since the offending. The victim’s view of the effects of your offending on her are made with hindsight and after many experiences

in life, some positive and some not. I will not lose sight of what the victim says as I proceed with this sentence but bear in mind also that I am sentencing you on two charges of indecent assault and no other matters.

[15] What the victim impact statement also underscores, and this will be known to you anyway, is that this type of offending affects people differently. The effect of offending such as this depends a great deal on the victim’s personal circumstances at the time and what life throws at them afterwards. Not all victims are equally robust. That is why this offending is so serious, because of the implications it may have for people subsequently.

[16] I should also mention that it is apparent from the victim impact statement that this offending, and it will not necessarily all have been your offending Mr Richards, has caused considerably difficulty within the victim’s wider family and particularly in her relationship with her mother and her siblings. Again, that is not uncommon at all in cases of this kind. Whist you have moved on quite well with your life, the victim has not been so fortunate.

[17] There is a wide sentencing range in cases of historical cases of indecent assault such as the present.[1] Previously, the Court of Appeal has said that, because of the wide range of offending which these offences can cover, the end sentence is normally in the range of 12 months to five years’ imprisonment.[2]

[18] I have considered the cases to which counsel have referred me. Ultimately, as has often been said in cases of this nature, each case turns on its individual facts. Of the cases cited to me, I consider R v Sundy[3] and R v Hirama[4] to be the closest on their facts. However, they were cases on appeal so the starting points adopted, and the extent to which the Court adjusted that starting point, is not apparent.

[19] In the circumstances of this case, I consider a starting point of 18 months to two years’ imprisonment to be appropriate. In reaching that starting point I take

account of the nature of the indecencies involved, the fact that this happened twice –

not once, spontaneously – but twice, with some weeks separating the incidents.

[20] To some extent the age discrepancy between you and the victim is already reflected in the starting point, given the nature of the offence. It is not unusual for there to be a significant discrepancy in age and so I do not propose to adjust the starting point upwards on account of that difference.

[21] I then turn to consider whether it is appropriate to adjust that starting point on account of any aggravating or mitigating factors which relate to you personally.

[22] There are no aggravating factors

[23] In so far as concerns mitigation, the most important is the evidence of good character. As I have said, since this offending, there has been no other offending.

[24] I am willing to make a reduction of 10 per cent on account of good character.

[25] Your counsel has also proposed that some further reduction ought to be made on account of remorse. I do not propose to do so. Statements on your part to the effect that the victim consented to your actions and that such consent in some way ameliorates the seriousness of the offending, show a lack of remorse. As you will have understood from my discussions with your counsel, Mr Richards, I consider that the victim’s actions in cases of this nature to be entirely irrelevant. What can be said on your behalf is that there was no overt violence on your part which would have led me to adopt a higher starting point. It is because children are vulnerable and at risk of more mature adults and because they react in very different ways to events, that the law says that consent, if that is what it was, is no defence to this offence.

[26] In so far as concerns your guilty plea, some further reduction is also appropriate. Although there may have been discussions between your counsel and the Crown over the charges to be laid, your first step on the first day of the trial that I was to hear was to apply to have the charges dismissed. The trial was only averted

due to your late plea. In the circumstances, and because the Crown have said they have no objection, I would allow a discount of 15 per cent on account of your guilty plea.

[27] Taking the midpoint of my starting point, being 21 months, allowing a 10 per cent reduction for good character and a further 15 per cent reduction for your guilty plea, I arrive at a sentence of one year, four months’ imprisonment.

[28] This puts you in the range for a sentence of home detention. Again, as you will have understood from the discussions there have been this morning, as a general rule prison would be the usual response for this type of offending.

[29] That said, s 8(g) of the Sentencing Act 2002 (“the Act”) requires me to impose the least restrictive outcome that is appropriate in the circumstances.

[30] I also bear in mind the desirability of keeping you in the community as far as that is practicable (s 16) of the Act. I am satisfied that the purposes that I must seek to achieve and the principles that the Act requires me to take into account would be as well met by a sentence of home detention as by a sentence of imprisonment.

[31] Your counsel has also reminded me of the statements of the Court of Appeal in R v Hill[5] and R v Iosefa[6] which make it very clear that a sentence of home detention is no soft option and is a realistic alternative to imprisonment.

[32] Your counsel has also suggested that I should consider imposing community detention. In my view that would not be appropriate. I consider the offending to be far too serious for such a sentence.

[33] I am, however, persuaded by your counsel that a sentence of home detention is the appropriate response to this offending.

[34] Please stand Mr Richards. On the each charge of indecent assault of a girl between the ages of 12 and 16, I sentence you to nine months’ home detention. The sentences are to be served concurrently.

[35] I do not propose to attach any conditions to the sentence of home detention. It does not seem to me to be necessary in the circumstances of this case and, again, I take into account of what your counsel has said on that score.

[36] Stand down.

..................................................................

PETERS J

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[1] _{R v Mokalei CA322/00, 30 November 2000 at [15].}
[2] _Ibid.
[3] _{R v Sundy CA122/89, 16 July 1986.}
[4] R v Hirama CA436/02, 23 June 2003.
[5] _{R v Hill [2008] NZCA 41.}
[6] R v Iosefa [2008] NZCA 453.