R v Cave

[2022] NZHC 1999

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-341

[2022] NZHC 1999

THE QUEEN

v

LEONARD CAVE

Hearing:	12 August 2022
Appearances:	J V Barry and I L M Archibald for Crown W C Pyke for Defendant
Sentence:	12 August 2022

SENTENCING REMARKS OF PETERS J

Solicitors:           Meredith Connell, Crown Solicitor, Auckland Counsel: W C Pyke, Auckland

R v CAVE [2022] NZHC 1999 [12 August 2022]

[1]    Mr Cave, you are for sentence on 11 charges of historic offending. You were found guilty of these charges following a jury trial in May 2022 at which I presided.

[2]There are essentially two sets of charges.

[3]    The first set comprises seven charges, all in respect of sexual offending against four boys, or at least they were boys then, who at the time were pupils at Dilworth School (“Dilworth”). I shall refer to this offending as “the Dilworth offending”.

[4]    The second set were all committed against a fifth boy, attending a school in Waikato. This second set comprises two charges of sexual offending, and two drugs charges — supplying him with cannabis, and supplying him with LSD. I shall refer to this offending as the “Waikato offending”.

Facts

[5]    To recap on the facts, the Dilworth charges arise out of a Police investigation into allegations of historic sexual abuse committed at Dilworth.

[6]    By definition, a boy who attended Dilworth came from a disadvantaged background and the complainants or victims who gave evidence before me were from solo parent homes, often because their mother or father had died when they were very young. Getting into Dilworth was no mean feat and, as Mr Barry said at the start of the trial, a parent who got their son into Dilworth thought they had “struck the jackpot”.

[7]    You committed the first two of the Dilworth offences against C. This was in the very early 1970s. C was in your orbit because he was in the school choir for which you were then playing the organ. You would have been in your mid-20s, and he would have been about 15. C’s evidence was that he ended up alone with you one afternoon after choir practice, possibly returning the hymn books to their allotted shelves, when you cornered him — literally. You then touched his crotch, over his clothing, and grabbed his hand to have him do likewise to you. C fled. As I have said, this offending is captured by the first two charges, both of indecent assault.

[8]    You then left Dilworth for a period but returned between 1975 and 1985, when you were employed as the head of music and the choirmaster. You committed the next five offences between 1981 and 1985, against three boys, each of whom was in the choir, or who you took for music lessons or for music as a subject, or all of the above.

[9]    The first three of these five charges were committed against M — three indecent assaults committed by you putting his hand down your pants, performing oral sex on him and inducing or permitting him to perform oral sex on you.

[10]   Then there was offending against B, encouraging him to perform oral sex on you. And lastly, in 1985, offending against O, and putting his penis in your mouth. Then, as you were leading a naked O to bed, he had a moment of clarity, came to his senses, threw his clothes on, and ran for it, out of the house and down to what was then the pub on Onetangi beach, with you giving chase. O told his mother, she complained to the school, and you left shortly thereafter. For the Waikato, as it turned out.

[11]   Before I go any further, I record that I dismissed two charges brought against you in respect of another complainant, D. This was because uncertainty as to D’s age at the relevant time, coupled with changes to the relevant legislation, meant that I could not safely leave those charges to the jury. So, if D is listening to this or reading this, that was why the charges relating to him did not proceed.

[12]   You committed all of the 1980s offending at your bach on Waiheke. Your modus operandi was to invite the boys to the bach, and ply them with alcohol, so that they became intoxicated. I have refreshed my memory on the evidence that was given at trial in the last few days and the complainants in relation to this offending used phrases such as “never been so drunk in my life”, “passed out”, “got very sick”, “threw up”, “had to be piggy backed up the zig zag track from the beach” — those were the sort of phrases those boys, or men now of course, used to describe the state they were in at the time.

[13]   I turn now to the Waikato offending. This offending was committed against W, between 2004 and 2007. The drugs charges — the supplying of cannabis and LSD

— were representative charges, so they happened more than once. Likewise, the indecent assaults which consisted of you grabbing W’s penis, testicles and buttocks during “play fights”. And then there is a final charge in relation to W, which is one of sexual violation committed by you inserting your finger into his anus during yet another play fight.

[14]   If it were possible, W was even more vulnerable than the Dilworth boys. His mother, separated from his father, was very unwell and increasingly incapable of looking after W at that time. Knowing of this, you took deliberate steps to win W’s trust and confidence. You let him confide in you, provided a sympathetic ear, started picking him up and driving him to school, gave him alcohol, gave him cannabis, and eventually he even moved to live in your house.

[15]   Bit by bit you sexualised the relationship. You showed W your genitals, you insisted on seeing his, you masturbated in front of him, and then engaged in the play fights he described.

[16]   As I have said, W was particularly vulnerable and isolated. He was wholly lacking in confidence, father nowhere to be seen as far as I could make out, and keenly aware that he was dependent on your goodwill for a roof over his head. You exploited the situation, disgracefully on anyone’s view of it. Your offending against him in those circumstances was reprehensible.

Victim impact statements

[17]   The victim impact statements I have from M, B, O, and W largely speak for themselves. Again, phrases such as not sleeping for the two years before the trial, depression, anxiety, stress to family members, anti-depressants, abuse of alcohol and drugs, ruined opportunities to pursue tertiary education and so on — all to be laid at your door.

[18]   Anyone who thinks fleeting sexual offending only has fleeting consequences needs to think again. One of the victim impact statements puts that notion to rest.

[19]   One of the boys told his mother what had occurred, perhaps not every last detail but enough to give her the gist of it. She complained to the school and, as I understood the evidence, you moved on shortly thereafter. But she also had her boy go back to school, thinking that she was doing the right thing by him. Many years on, the relationship remains strained and that is another matter for which you are responsible Mr Cave.

Pre-sentence report

[20]   I have read the provision of advice report prepared by Probation services and four points stand out.

[21]   The first is, as we have heard, you now admit the offending in the 1980s against M, B, and O. If you had done this before trial they would have been spared the ordeal of describing what had happened to them 35 to 40 years ago. It takes a great deal of fortitude to give evidence about the deeply personal matter of sexual offending. You could have spared them but you did not.

[22]   The second point that stands out is that you said to the report writer that the offending with M, B, and O occurred whilst you were “horsing around” or, in your most recent letter, “a mutual adventure”. I do not accept that for the moment. The offending was planned. You got those boys to your bach at Waiheke, and got them drunk, for one reason only.

[23]   Thirdly, you describe the offending as “immature and stupid”. That does not carry any weight with me either. You were in your 30s when you offended against M, B, and O, and you were 50ish when you offended against W.

[24]   Fourthly, you refer to your contributions to the local musical community, which are considerable and beneficial I accept, but you then complain that you have been “regularly named and roasted by the media”, and have had to hide yourself away. Mr Cave, whatever naming and roasting and hardship you have endured over the last couple of years is of no moment compared to what you have put C, M, B, O, and W through. One might have hoped for a heartfelt apology, an honest acknowledgment of what had gone on and not self-pity.

Sentencing process

[25]I turn now to the sentencing process.

[26]   The first step is to establish what we refer to as the “starting point”, which is the sentence which reflects the culpability inherent in the offending.

[27]The second step is to adjust the starting point to reflect matters personal to you

— whether they are aggravating or mitigating.

Starting point

[28]   Coming to the starting point, Mr Cave, as counsel have suggested, I shall fix two starting points. One for the Dilworth offending and one for the Waikato offending. When I have done that, I shall look at them and see if, combined, they fairly reflect the totality of your offending.

[29]   In fixing the starting point, and this applies to both sets of charges, I must impose a sentence that is sufficient to hold you accountable for the considerable harm that you have caused. The sentence must be sufficient to denounce your behaviour, and deter others from similar offending. I must also treat you consistently with others, and I am obliged by law to impose the least restrictive outcome appropriate in the circumstances.

[30]   The critical factors in this case are that every boy to which I have referred was vulnerable and either emotionally or physically isolated at the time of the offending. Your offending was a gross breach of trust because you were their teacher. The offending was premeditated. You engineered the situations in which it occurred. And there was a degree of grooming of one or two of complainants by showing them pornography, talking about other relationships in which you were involved, giving them beer at school and so on. Much of the offending was skin on skin and, as I have said, there was a considerable age disparity.

[31]   In relation to the Dilworth offending, Mr Barry submits a starting point of five years’ imprisonment, and Mr Pyke, in very good submissions it has to be said, submits

four years. In making these submissions, counsel have referred me to several reasonably similar cases, being R v Wilson, R v Browne, R v Harlow, R v Moloney, and R v Hearling.1 None of them are on all fours but they are close enough for present purposes. For myself, I think your Dilworth offending was worse than in Moloney and on a par in terms of culpability with Harlow and Hearling.

[32]   Several of your indecent assaults involved oral sex. Today, these would be charged as sexual violations by unlawful sexual connection and attract a much higher starting point.

[33]I am going to take a starting point of five years for the Dilworth offending.

[34]   I consider the Waikato offending more serious. Only one victim, but the offending against him was prolonged. You took complete advantage of his unfortunate situation and you introduced him to drugs.

[35]   As I discussed with Mr Barry and Mr Pyke, I could sentence you on the sexual violation charge as the lead or most serious offence and increase it for the drugs, or I could take the view the sexual violation was relatively confined at one incident but coupled with numerous indecent assaults, and all made vastly worse by you introducing W to the serious class A drug, LSD.

[36]   Whatever way the matter is approached, in my view Mr Barry’s submissions reflect the least I could adopt as a starting point for this offending. I shall adopt another five year starting point for the Waikato offending but on any analysis it could warrant six years plus, such was the grooming, and the exploitation of the situation.

[37]   Accordingly, I shall adopt a starting point of five years’ imprisonment for all of the Waikato offending.

[38]   It is then necessary to stand back and assess whether a combined starting point of 10 years is a fair, but not excessive, reflection of your culpability for the offending

1      R v Wilson [2021] NZDC 5366; R v Browne [2021] NZHC 3286; R v Harlow [2022] NZDC 12421; R v Moloney HC Christchurch CRI-2003-009-013598, 1 August 2008; and R v Hearling [2009] NZCA 298.

as a whole. Having done so, I am satisfied that I should deduct one year from that combined starting point to bring me to nine years. So, the starting point is nine years.

Aggravating and mitigating factors personal to you

[39]   I then need to consider whether there are any aggravating or mitigating factors which require me to increase or reduce the sentence from that starting point. There are no aggravating factors.

[40]   As to mitigation, Mr Pyke refers me to your contributions as a teacher and as a musician. There is no doubt you were highly regarded as a teacher and were able to instil a love of music in many of the boys from whom I heard. You have also made contributions in your local community. Those are all beneficial.

[41]   I do not, I am afraid, set much store on your acknowledgment of the offending because I think it is in terms that are not a fair reflection of what actually occurred.

[42]   There are, however, other matters to take into account which will mean a sentence of imprisonment is harder for you to bear than perhaps for another offender. First, one of your children, as Mr Pyke said, is very unwell and your opportunities to be with that child will be very limited, if any. Secondly, I must take into account that you are 75. I have no information before me to the effect that you are suffering from any particular illness but age alone is likely to make a term of imprisonment more difficult for you than for a younger offender.

[43]I shall reduce the sentence by a further one year to address these matters.

[44]This brings me to an end sentence of eight years’ imprisonment.

[45]   In addition, in relation to charges 1, 2 and 9, your name will be placed on the Child Sex Offender Register kept under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. The Registrar of the Court will provide you with written notice of your reporting obligations under the Act and the penalties for failing to comply with them.

Sentence

[46]Mr Cave, please stand.

(a)on charge 5, indecent assault, I sentence you to four years’ imprisonment;

(b)on charges 1 to 4, 6, 9 and 10, I sentence you to 12 months’ imprisonment, to be served concurrently with the sentence imposed on charge 5.

(c)on charge 14, sexual violation by unlawful sexual connection, I sentence you to four years’ imprisonment, to be served cumulatively on the sentence on charge 5.

(d)on charge 12, the representative charge of supplying the class A controlled drug LSD, I sentence you to two years’ imprisonment, to be served concurrently with the sentence imposed on charge 14.

(e)on each of charges 11 and 13, being one representative charge of supplying the class C controlled drug cannabis to a person under 18, and one representative charge of indecent assault, I sentence you to  12 months’ imprisonment, also to be served concurrently with the sentence imposed on charge 14.

[47]This means your total term of imprisonment is eight years.

[48]Please stand down.

Peters J