R v Baldwin HC Auckland CRI 2008-004-23804

[2010] NZHC 613

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF COMPLAINANT OR COMPLAINANT'S SCHOOL

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-004-023804

THE QUEEN

v

NICHOLAS RAYMOND BALDWIN

Charges:Unlawful sexual connection x2; Indecent acts on a boy under 12 x3;

Indecent acts on a boy between the ages of 12 and 16 x3

Pleas:             Guilty

Appearances: J Shaw for Crown

J Wiles for Prisoner

Sentenced:     20 April 2010

Unlawful sexual connection x2 – 8 years 9 months’ imprisonment; Indecent acts on a boy under 12 x3 and indecent acts on a boy

between the ages of 12 and 16 x3 – 4 years’ imprisonment concurrent. Total:  8 years 9 months’ imprisonment

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            J Wiles, Auckland

R V BALDWIN HC AK CRI-2008-004-023804  20 April 2010

[1]      Nicholas Raymond Baldwin, at the age of 62, you are for sentence in this Court having pleaded guilty to two counts of unlawful sexual connection, three counts of indecent acts on a boy under 12 and three counts of indecent acts on a boy between the ages of 12 and 16.   The maximum penalty for the unlawful sexual connection offending is 20 years’ imprisonment.   The maximum penalty for the indecent act offending is seven years.   You pleaded guilty to these counts on 9

March this year, on the second day of a trial in this Court in relation to these and other counts.

[2]      You were a school teacher.  The victim in this case was one of your young pupils.  You met him initially in 2005 when he attended the primary school that you taught at.  The victim was in your class in 2006.  You developed a close personal relationship with him.   You treated him in a special way through 2006 so as to consolidate and strengthen your relationship with him.  You met him outside school hours and away from the school grounds.  You took him for rides in your car.  When you were together you would buy him treats, such as milkshakes and chips.   You knew what you were doing was wrong and you told him to keep the meetings secret as others might get jealous.

[3]       In 2007, even though the victim was no longer in your class, you maintained and in fact increased your contact with him.   The victim became emotionally dependent on you.  You started to touch him.  The contact started with embracing and then kissing.  It progressed to the stage where you asked the victim to touch and stroke your genitals while you were alone with him, including occasions at school when privacy allowed it.   The touching further progressed to the stage that on a number of occasions you put your hand inside his underwear and swiped his anus with your finger.  You took the victim to isolated areas or sportsgrounds in your car after school and engaged in the offending against him.   In a way you sought to control him. You gave him your cellphone over weekends at some stage to enable him to check in with you during the course of the weekends.  You would become cross and sulk when he failed to contact you.

[4]      By 2008 the offending had increased to incidents of mutual masturbation. The most serious offending, that of unlawful sexual connection involved connection between your mouth and his penis and between your penis and his mouth.   The connection involved kissing.  You initially convinced him to allow you to kiss his penis but later were able to convince him to do the same to you.   There are representative counts relating to that offending over a period of five months from May to September.   The counts are, as I say, representative so that the offending happened on a number of occasions during that period.  There are also representative counts relating to a number of the other indecent acts.   The offending was only stopped when concerned parents observed your inappropriate contact with the victim and a complaint was made.  The police observed your contact and then spoke to you. You were initially arrested in September 2008.  You maintained your denial of this offending until your trial in March this year.  You only pleaded guilty to the counts after the Crown had opened, the victim had been called to give evidence and his evidence-in-chief had been given by way of video interview.  Your guilty plea did, however, mean the victim did not have to face cross-examination by your counsel.

[5]      This is your first offending of any note.   You have a previous conviction many years ago for a minor drug offence, which is entirely irrelevant.  You are an only child.   Your father is deceased.   Your 91 year old mother is in care.   After completing teacher’s college you embarked on a teaching career which spanned 40 years.  You were highly regarded as a teacher and a successful teacher who had a positive influence on a number of students.  As a result of this offending that career has come to an end.

[6]      You never married nor had children.  You do not have any particular problem or addiction to alcohol or drugs.  You suffer from asthma but are otherwise in good physical condition.

[7]      When you spoke to the probation officer you expressed your remorse and regret at the offending.   You said you gave little thought to what was happening. You claim not to have had any prior sexual interest in young boys or associated practices despite the graphic sexual fantasies that you described to the victim.  You acknowledge having sexual dreams about him.

[8]      However, I accept that your expressions of remorse and regret are genuine. They are also confirmed in the letter that you have written to the Court.

[9]      You are an intelligent man Mr Baldwin and I hope that you now do have some insight into  your offending and the effect of it on the victim.   You will understand, following the discussion with counsel that  your sentencing must be conducted in accordance with the recent Court of Appeal guideline judgment in R v AM.[1]      In  that  judgment  a  full  Court  of  the  Court  of  Appeal  reviewed  the appropriate guidelines for sentencing in cases involving rape and/or unlawful sexual connection.

[1] R v AM [2010] NZCA 114.

[10]     In relation to unlawful sexual connection the Court identified three bands for offending of this nature:

a)        band one, for offending at the lower end of the spectrum – between two and five years;

b)        band  two,  for  cases  of  relatively  moderate  serious  offending  –

between four and 10 years;

c)        band three, for the most serious offending – between nine and 18 years.

[11]     You will see there is a degree of overlap between the various bands.   The basis for distinction between the bands requires, as in all sentencing, an assessment of the seriousness of the offending in your particular case.

[12]     Counsel take a very different approach to the appropriate band in this case. The Crown argue that your offending fits within the lower end of band three for unlawful sexual connection attracting a start point of between nine and 18 years.  On the other hand  your counsel argues that  as the unlawful sexual connection was limited to kissing rather than penetrative oral genital interaction your offending falls within the lower or middle end of band two.  Mr Wiles submitted the offending was

on the very cusp of unlawful sexual connection and that a start point of five years was appropriate.

[13]     Counsel referred to a number of other sentencing decisions and the outcome in those cases but as the Court of Appeal confirmed in AM, it will generally not be helpful to revert back to the actual outcome in earlier cases which may have involved a different sentencing regime or a different approach to start points.

[14]     In AM the Court of Appeal confirmed that regard must be had to the purposes and principles of the Sentencing Act, which, in any particular case will require the Court to have regard to a number of factors.

[15]     In this case the particularly relevant purposes are:

a)        to hold  you accountable for the harm done to the victim and the community by offending of this nature;

b)to promote in you a sense of responsibility for and acknowledgement of that harm;

c)        to provide for the interests of the victim;

d)       to denounce your conduct;

e)        to  deter  you  and  others  from  committing  the  same  or  similar offending;

f)        to protect the community from you and this sort of offending. [16]     The particularly relevant principles of the Act are to consider:

a)        the gravity of the offending, including the degree of your culpability in this case;

b)the seriousness of the type of offending which is indicated in this case by the maximum penalty imposed by Parliament of 20 years;

c)       the general desirability of consistency – in this case assisted by the guideline judgment in AM.

[17]     I take as the lead sentence the two representative counts of unlawful sexual connection.     In  doing  so  I  accept  that  the  offending  did  not  involve  penile penetration.   But of course if it had, or at least had involved penetration of the victim’s mouth by your penis, then the rape sentencing bands would have applied. Mr  Baldwin,  the  seriousness  of  the  offending  and  your  culpability  is  to  be considered, apart from the nature of the contact itself, by the purposes and principles I have referred to as informed by the aggravating features identified by the Court of Appeal in AM.  In this case the particularly relevant features or factors are:

a)       First, that in my judgment there was a significant degree of planning on your part leading to this offending.  Mr Wiles suggested on your instructions that this was an inexorable consequence of the victim being forced on you by other staff.   As you heard I rejected that submission.  No-one forced you to meet the victim outside the class, outside the school grounds or otherwise to act in what you must have known was in clear and flagrant breach of teachers’ codes of ethics and was criminal behaviour.  While the Crown withdrew the count of grooming, you engaged in a deliberate course of conduct to develop a close bond with this young boy.   As the closeness of that bond developed, so your offending escalated. Your inappropriate contact went from embracing, then kissing to the fondling of genitals, mutual masturbation and ultimately to your kissing his penis and your having him kiss your penis.   Over 2006, 2007 and 2008 you managed the relationship so as to facilitate the continuation of your relationship even after the victim was no longer a pupil in your class. A clear example of the hold you had over the victim was the Liverpool t-shirt incident.  You bought him a Liverpool t-shirt for his birthday and then told him of a sexual fantasy you had had, involving him wearing only

that t-shirt.  The victim was so much in your thrall and so dependent on you that to please you he then acted out that fantasy for you in public toilets where you took him to.

b)Next, and importantly in this case, the victim was vulnerable.  He was vulnerable in a number of ways. First, given his young age at the time when the offending against him commenced.  When you first met him in 2005 he was only 10.  A number of the offences involved offending against a child under the age of 12.   Related to that, there was the significant disparity in age and maturity between him and you.  At the time the offending started you were in your late fifties.  In addition, and to compound his vulnerability, you knew he was a troubled young boy and had a previous background of sexual abuse.

c)       Next and related to the vulnerability is the feature that this was a serious breach of trust, given your relationship of teacher to pupil.  He came to your attention because of that relationship.  You abused the influence and trust you had over him and the trust he reposed in your because of your position as his teacher.  In doing so you abused your position and have potentially harmed the teaching profession which you acknowledge.    Your offending undermines the good reputation and work of your colleagues.

d)Next, and a particularly aggravating matter in my judgment is the scale of the offending or the length of time by which the offending extended.   Mr Wiles emphasised the unlawful sexual connection occurred over a period of five months.  That is correct, but as noted it occurred on a number of occasions and it was the culmination of a progression of offending, an offending which was only stopped because you came to the attention of the police.

e)       Finally in terms of aggravating features there has been the undoubted harm to the victim.  Given his previous abuse it is inevitable he will

experience both short and long term effects of this offending and his caregiver has described the effect perceived in him already.

[18]     In AM the Court of Appeal suggested band three would encompass cases which  involve  two  or  more  factors  increasing  culpability to  a  high  degree,  for example a particularly young victim or an extensive period of offending.  The band is also appropriate where more than three of those factors are present to a moderate degree.[2]   Mr Baldwin in your case there are a number of aggravating features which in my judgment are serious, the planning, breach of trust and vulnerability of the victim in particular.  I accept that a feature of the seriousness of the offending is the limited physical nature of the unlawful sexual connection but that is only one factor

to be borne in mind.   Although Mr Wiles suggested that there was a consensual aspect to the offending, the fact the victim went along with it rather reflected the hold you had over him in the relationship and of course the guilty pleas you have entered accept there was a lack of informed and understood consent.   While the offending did not involve physical force there was effectively acquiescence by your victim because of the hold that you had over him arising from the breaches of trust and disparity in ages I have referred to.

[2] At [120].

[19]     Your offending has serious features.  It also has some similarities to the case of R v Harris[3] which was cited in AM as an example of offending at the top range of band two.   Mr Wiles suggested that your offending was less serious than that in Harris. In that case a 47 year old offended against a 12 year old boy for about 18 months while they resided in a caravan park.  The offending involved playing with and sucking the victim’s penis and attempting, to anally penetrate him although that was not persisted with when the victim objected.   The Court placed those circumstances of that offending at the top end of band two.   While that case is

different, it is not markedly different in my view Mr Baldwin and there are other aggravating features in your case, namely the breach of trust and the known vulnerability of the victim.  In my judgment, whether your offending is categorised at the top end of band two, or at the lower end of band three, I am satisfied that the appropriate start point for sentence on the unlawful sexual connection counts is nine

years.  To reflect the totality of the other offending, particularly the representative counts of indecent acts and the serious counts of mutual masturbation, I take as a start point for sentence 10 years.

[3] R v Harris CA320/93, 15 November 1993.

[20]     There are no personal aggravating features.   I turn to consider mitigating factors.

[21]     In your case, as noted, there have been no previous relevant convictions. You have served the community for 40 years as a successful teacher albeit you have done a disservice to that profession by your actions.  I accept you are entitled to a discount from your sentence for your previous positive work in the community but in your case, given the offending arose out of the work, the discount must be tempered somewhat.  Mr Wiles submitted a discount of six months for previous good character and genuine remorse was appropriate.  I am content to adopt that figure.

[22]     The other factor is your guilty plea.  Your guilty plea came late in the piece and not until the accused had been required to attend Court, face the trauma of being called as a witness and sit through the video interviews that he had given earlier.  He had to relive your offending against him in that way.  Your guilty plea did, however, as I have acknowledged, spare him the additional trauma of cross-examination.  It was also, I accept, albeit belated, an acknowledgement by you of your offending and an acceptance of that offending and a tangible recognition of remorse.  I propose to give you a further discount of between five and 10 per cent for those late guilty pleas.

[23]     The  end  result  Mr  Baldwin  is  a  sentence  of  eight  years  nine  months’

imprisonment.

[24]     The Crown have sought a minimum period of imprisonment.  They submit the offending is serious and that the statutory minimum non-parole period would be insufficient to adequately address the purposes of denunciation and deterrence in particular.  They seek a minimum non-parole period of one half of the sentence.

[25]   A minimum non-parole period of more than the statutory minimum is appropriate where  the  default  period  would  be insufficient  to  meet  the aims  of accountability, denunciation, deterrence or protection of the community.  I note you have been assessed by the probation officer at a low risk of reoffending.   I accept your expression of remorse is genuine.   You now seem to have some insight into your offending which you lacked previously.   In my judgment, the issues of the community protection, accountability and deterrence are in your case adequately dealt with by the sentence I have imposed.  As opposed to the accused in the case of

R v Hayward[4] you have now accepted your offending.  In the circumstances I do not

propose to impose a minimum non-parole period in your case.  Your ultimate release date will be for the Parole Board when they determine how you respond to any relevant programmes.

[4] R v Hayward CA633/07, 18 June 2008.

[26]     Mr Baldwin, please stand.  On the two counts of unlawful sexual connection you are sentenced to imprisonment for eight years nine months.  On the other counts of indecent assault you are sentenced to imprisonment for four years in each case. The sentences are concurrent.  The effective sentence is eight years nine months.

[27]     That is all.  Stand down.

Venning J