R v Batey [2012] NZHC 3001 (13 November 2012)

Last Updated: 19 February 2013

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: SUPPRESSION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT'S FAMILY PROHIBITED BY S 202 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-006429 [2012] NZHC 3001

THE QUEEN

v

GARY GRAEME BATEY

Hearing: 13 November 2012

Counsel: L MacDonald for Crown

S Blake for Prisoner

Judgment: 13 November 2012

_{SENTENCING NOTES OF WOOLFORD J}

Solicitors:

Crown Solicitor, Auckland

Mr S Blake, Barrister, Auckland.

R V BATEY HC AK CRI-2012-092-006429 [13 November 2012]

Offences

[1] Mr Batey on 3 October 2012 you pleaded guilty to the following charges:

_{Offence Date of offence Section / Act Maximum penalty}

Sexual violation by rape (representative)

Doing an indecent act on a child under 12 (representative)

Doing an indecent act on a child under 12

Doing an indecent act on a child under 12

Between 6 August 2008 and 24 December 2011

Between 6 August 2008 and 24 December 2011

Between 1 March 2011 and 5 August 2011

Between 6 August 2011 and 24 December 2011

s 128(1)(a) Crimes Act
1961

s 132(3) Crimes
Act 1961

s 132(3) Crimes
Act 1961

s 132(3) Crimes
_{Act 1961}

20 years imprisonment

10 years imprisonment

10 years imprisonment

10 years imprisonment

Facts

[2] I will now say a little about the circumstances of your offending. You and the victim’s father, who I shall refer to as Mr E, were personal friends. He and the victim’s mother had separated and he was the primary caregiver for the victim, who I shall refer to as B, and her brother. The offending began when the victim was around 7 years old and continued up to the age of 10.

[3] Your friendship with Mr E appears to have been a relatively close one. Mr E evidently had a considerable degree of trust in you as is demonstrated by allowing you to babysit both B and her brother and by allowing them to go with you to events without his supervision. At times you would also stay the night at their house. This was the background against which your offending occurred.

[4] The charge of sexually violating the victim is a representative one which covers the numerous instances on which this occurred over the three year period of your offending. The pattern to this offending was fairly similar. It would appear that on most occasions you would wait for anyone who was in the house to fall asleep before going to the victim’s room. At times only her brother was present but on some occasions her father was also in the house.

[5] Once in her room you would wake her, ask her if she wanted “to play” by which you meant engage in sexual activity and proceed to remove her pyjamas. You would then penetrate her genitalia with your penis. These incidents would often end with you ejaculating onto the victim and then leaving her alone. The victim was unable to recall how many times this happened over the course of the three years but it is clear that it was a large number of times.

[6] The representative charge of committing an indecent act also occurred at night. In this case you would ask B the same question and remove her pyjamas but would insert your penis between her legs, near to her vagina and rub it between them without penetrating her genitalia.

[7] The third charge refers to a single incident in 2011 when you were looking after E and her brother because her father had been unexpectedly delayed. The victim was watching a movie in your home on your bed under the blankets. You got under the covers with her, removed the clothing from her lower body and rubbed your penis against her genitalia. The victim asked you to stop, which you did.

[8] The final charge relates to events in late 2011. You entered the victim’s room late at night and were told to go away, which you initially did. However, you returned later once the victim had fallen asleep once more. You removed B’s pyjama pants at which point she awoke. She began to scream but you told her to be quiet. You then rubbed yourself against her while holding her from behind.

[9] The victim told her grandmother about the offending and the charges were laid on 11 May 2012.

Victim Impact Statement

[10] I will now move on to the effect that your offending has had on the victim and her family.

[11] I have read three victim impact statements. One provided by the victim, one by her father and one by her grandmother. I have been most impressed today by

hearing from the victim herself through her father, hearing from her father and from her grandmother.

[12] The victim, B, has given a statement in which she vividly contrasts her personality prior to and following this experience. She feels less able to trust people, less willing to speak to and interact with others, and less confident. She has lost time at school through having to attend counselling and can no longer participate in some activities, such as sleepovers. There is also the pressure of her friends knowing something is wrong but her being unable to tell them what as she is afraid they will judge her. She feels that her relationship with her father and brother has suffered and feels awful for taking it out on them. She expresses a deep anger towards you for what you have done and feels that it has changed her forever and that she can no longer call herself normal.

[13] Mr E, the victim’s father, has known you for some 15 to 20 years. You lost touch for some time but it seems that once you and Mr E rekindled your friendship it was a close one with regular contact between you, him and his children. He has said in his victim impact statement that he regarded you like a brother.

[14] During the time that this was ongoing there are a number of effects on B that he believes were the result of your offending, including a nervous vocal tick, difficulty in sleeping and tantrums. Mr E feels that she became much less close to him, was more fearful around adults and began to react negatively to you in a way that, at the time, left him confused.

[15] He believes a number of behavioural changes have become evident in his daughter as a result of your offending. She is, in his estimation, less at ease with herself, outgoing or comfortable with new acquaintances.

[16] Following the disclosure of your offending he has hope, however, and believes there are some signs that she is recovering. Counselling seems to be helping her. She has become more engaged and is less fearful. Needless to say, how B copes may change for the better or for the worse as she grows older and I sense

Mr E accepts that there is a long road ahead and that there have been some permanent changes in the way his daughter behaves.

[17] On a personal level, Mr E blames himself to some degree for not picking up on elements in your behaviour and for trusting you with her.

Personal circumstances

[18] Mr Batey, you are now 38 years old. Prior to this offending coming to light and your remand, you were a mechanic residing in South Auckland either with your mother or in a house you shared with others. Your interests seem to lie in car-racing and you were involved with events at one of the speedways.

[19] You report that you have a good relationship with your mother who is supporting you in Court today. She is aware of this offending but you fear it would put further strain on your relationship with your father. You are the only child of your parents who, I understand, are separated. You are not currently in a relationship, nor do you have any children.

Prior Convictions

[20] You have two prior convictions of potential relevance. They are for committing an indecent act with the intention of insulting someone and result from an incident in 2006.1 The offending in that incident was of sexual nature, though more minor, and relating to an adult victim. There was no touching or contact involved. There are also a number of driving convictions.

[21] All in all, your prior convictions have limited weight in the present case given the much more serious and distinctive nature of your offending in this case.

1 Crimes Act 1961, s 126.

Pre-Sentence Report

[22] I have received a pre-sentence report prepared by the Department of Corrections to assist in sentencing you. This was prepared by a Probation Officer following an interview with you.

[23] The report-writer discussed your offending with you and you appear to accept it and demonstrate some degree of insight into the harm it will have caused the victim. You are obviously disappointed and angry at yourself for your behaviour.

[24] The report records that you have no alcohol or drug problems that might have motivated you. The report-writer did not assess whether you have any underlying sexual or psychological issues that might have influenced your behaviour. These may be identified through treatment programmes and you have expressed a willingness to take part in those programmes.

[25] The Probation Officer thinks your risk of reoffending can be managed through treatment and rehabilitation. If that does not occur then your risk of reoffending is assessed as high. The report-writer is realistic in acknowledging that the only appropriate outcome for you is a lengthy sentence of imprisonment.

Purposes and Principles of Sentencing

[26] There are a number of major purposes that lie behind the sentence I am going to impose today. There is an important element of accountability in sentencing which aims to make you understand the harm done to the victim of your offending and the wider results of that on the community. There is a need to impress upon you that any similar behaviour in future by you will not be tolerated and to make it clear to others that there are serious consequences of such behaviour. In so much as you have not addressed the causes of your offending there is a need both to protect the community and encourage your rehabilitation.

[27] It is also important to recognise some of the principles that guide my decision today. There is the need to take into account the effect this offending has had on the

victims, recognising that that includes both B, her father and grandmother. That forms part of my consideration both of the seriousness of your crime and the seriousness of the way in which it was committed. Those considerations, however, sit alongside the need to sentence you in a way that is consistent with other similar offending.

Submissions

Crown Submissions

[28] Ms MacDonald, for the Crown, submits that there are five clear aggravating features of this offending: premeditation, vulnerability, breach of trust, the scale of the offending and the harm to the victim. All these matters, it is said, mean that the offending falls at the lower end of band four of the relevant tariff and the Court should adopt a starting point of 16 years imprisonment.

[29] The Crown suggests that any uplift for your previous convictions be a small one. The only mitigating feature identified by the Crown is your guilty plea. Ms MacDonald saw your plea, which came post committal, as being less than early in the process. As such she submitted that a discount of 15 per cent and certainly no more than 20 per cent was appropriate. The Crown also seeks a minimum period of imprisonment of up to one half the finite sentence in the interests of protecting the community and allowing the victim to complete her schooling without having to concern herself with parole hearings.

Offender’s Submissions

[30] Mr Blake, your counsel, noted that your offending involved the characteristics suggested by the Crown but that care had to be taken with those factors as they tended to overlap. Mr Blake did accept, however, that the high end of possible starting points could be as much as 16 years imprisonment. Mr Blake submitted that your previous convictions had no real relevance to the present charges.

[31] It was his submission also that you expressed a willingness to plead guilty right from the very start, prior even to having seen a summary of facts, and that this merited a discount of around 20 per cent from the starting point. Mr Blake’s central submission was on the minimum period of imprisonment you should serve where he emphasised that imposing one should not be an automatic exercise. Were the Court to consider imposing one, his submission was, that it should be no more than 45 to

50 per cent of the sentence.

Sentencing approach

[32] The approach that I intend to follow in arriving at the appropriate finite sentence is that established by the Court of Appeal in several well-known cases. In brief, it involves considering the circumstances and seriousness of the offending you committed and setting what is known as a starting point with the aid of any guideline decisions or comparable cases. Then I need to consider if there are any mitigating features relevant to you, including, last of all, your guilty plea, which should reduce

that starting point.2

[33] Since there is multiple offending, I need to consider which offence to focus on and what effect the other offences should have on that sentence as well.

Tariff Case:

[34] The tariff case which provides guidance on the starting point for this kind of offending is the Court of Appeal’s decision in R v AM.3 In that case the Court of Appeal identified a number of factors relevant to assessing the seriousness of sexual offending.4 By making an assessment of those factors the Court can then assign the offending to one of the four bands suggested by the Court of Appeal in order to set a starting point. The bands for sexual violation in this case are:

_{(a) rape band one: 6–8 years;}

2 _{R v Taueki [2005] 3 NZLR 372 (CA); and R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23.}

3 _{R v AM [2010] NZCA 114, [2010] 2 NZLR 750.}

4 At [37] – [64].

(b) rape band two: 7–13 years;

(c) rape band three: 12–18 years; and

(d) rape band four: 16–20 years.

[35] The decision also summarises a number of comparable cases. The relevant ones in this case are to be found in bands three and four.5

Relevant Cases

[36] Counsel cited a number of examples from R v AM and some other comparable cases. I mention those briefly. Under band three there is R v R.6 Under band four there are R v N and R v Gordon.7

[37] Counsel also referred me to a small number of other cases not mentioned in R v AM. They are R v AJS (a 16 year starting point) and R v PD (18 year starting point).8 I have also considered the facts of R v TDO (a 16 year starting point).9

Analysis

Setting a Starting Point

[38] I consider that your offending has a number of aggravating factors. There is the fact that the victim was a young person and vulnerable to attention from an older man particularly given the way in which you cultivated a relationship with her. That reflects an overlap somewhat with the degree of breach of trust involved. While you were not a family member, you nonetheless had a close relationship with the family, had gained quite a considerable degree of trust from Mr E in relation to the children,

_{and were in a privileged position by reason of that to conduct this offending. It}

5 _{At [105]-[112].}

6 _{At [106].}

7 _{At [109].}

8 _{R v AJS [2012] NZHC 1531; and R v PD HC Whangarei CRI-2011-088-4739, 26 July 2012.}

9 R v TDO [2012] NZHC 2704.

represents a considerable abuse of your position and betrayal of the family’s trust. There is also the duration of the offending, occurring as it did over a sustained three year period. The protracted nature of the offending blends somewhat with premeditation which is also evident here. Lastly, there is the very obvious harm caused to the victim by your offending as recounted in the victim impact statements.

[39] Of the comparable cases, R v R contains a degree of brutality, callousness and degradation not seen in this case. In addition, the victim in that case was younger. On the other hand, the offending involved only a single incident, albeit a violent one.

[40] R v AJS involves a victim of a similar age who was the stepdaughter of the offender; it also features a similar pattern of conduct over a similar time period. It is closely comparable.

[41] In R v PD the offending was principally against the offender’s daughter who was aged between six and seven years old. There were serious effects on the victim and the victim’s mother. The fact that there was offending against another victim led Keane J to take a higher starting point.

[42] Katz J in R v TDO was faced with a similar level of offending against the offender’s whangai child (there was also historic offending against his daughter). There were multiple rapes of the victim over two years when she was aged 13 to 15. There was serious physical harm to the victim and psychological harm and the loss of family ties.

[43] In your case it could be agreed there is some rationale for distinguishing between these cases and yours in that, while you enjoyed a high-level of trust you were not a family member of the victims. Given the proximity to the family and the degree of offending however, this distinction is minimal and is more than countered by the other aggravating features of the offending. I am of the view that the Court

should not take too narrow an interpretation of “family” in this context.10 I therefore

adopt a starting point, in your case, of 16 years imprisonment.

[44] The other offending in this case is also serious. Had it been committed alone it could be regarded as among the most serious sort of indecent offending on a child short of sexual violation.

[45] I consider that as it forms a part of the same pattern of behaviour and in light of the starting point I have adopted I will not impose any uplift on the sentence for them.

Guilty Plea

[46] The discount to be awarded for a guilty plea arises from a combination of factors whereby the Court assesses whether it came at the earliest time reasonably possible and what benefits it has provided.11

[47] The Police spoke to you about this offending on 10 May 2012 and charged you the following day. The matter was committed for trial in this court on 10 July

2012. Trial dates shifted to some degree and the case might have been heard as early as late November. However, there are signs that matters were being discussed between your counsel and the Crown throughout and you pleaded guilty on

3 October 2012.

[48] Your plea comes following discussions between counsel. It has saved considerable resources and importantly has meant that the victim has not had to prepare herself for trial or give evidence. There are considerable benefits to all involved. I consider that you showed a willingness to admit guilt from a relatively early stage and that there has been a positive effect from your plea. I would allow a reduction in your case of approximately 20 per cent. That takes the final sentence to one of 12 years 9 months imprisonment.

[49] In order to impose a minimum period of imprisonment (MPI) I need to consider whether the purposes in that section require one to be imposed in the circumstances of this case.12 I note the material Mr Blake has submitted on the purposes of imposing a longer than usual non-parole period and their emphasis on safety of the community. In this case, I do not consider protection of the community requires a MPI. However, I note that safety of the community is not the only purpose identified. Denunciation and accountability are far more relevant considerations in this case. Looking at the protracted nature of your offending and

the violation of trust involved, I am satisfied that the imposition of a MPI is appropriate.

[50] That said, once satisfied as to the fact that I should impose a MPI I need to take into account all the aggravating and mitigating features of the offending in doing so.13 I consider given your history, the nature of your offending and the prospect of rehabilitation that that should be set at six years imprisonment.

Result

[51] Accordingly, on the charge of sexual violation by rape, Mr Batey, I sentence you to a period of imprisonment of 12 years 9 months.

[52] On the representative charge of indecency against a child, I sentence you to seven years imprisonment to be served concurrently.

[53] On the remaining two charges of indecency against a child, I sentence you to five years imprisonment on each, also to be served concurrently.

[54] That means you will serve a total sentence of 12 years 9 months imprisonment. Normally you would be eligible to apply, though would not by any means necessarily receive, parole after one third of your sentence. However, I order

that you serve a minimum of six years imprisonment before you are eligible to be even considered for parole.

[55] You have already been given a warning under the regime that applies to serious violent and sexual offending that any further offending will have more severe consequences and I will just remind you of those and that warning.

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

Woolford J